In re Waltz
| Decision Date | 15 February 1923 |
| Docket Number | 11,652 |
| Citation | 138 N.E. 94,79 Ind.App. 298 |
| Parties | IN RE WALTZ |
| Court | Indiana Appellate Court |
From the Industrial Board of Indiana.
Certified questions of law.
Proceedings on the application of the Artificial Ice and Cold Storage Company for an award of compensation to one Charles A. Waltz an employe of an independent contractor. Certified question of law by the Industrial Board.
Question answered.
J. W Fesler, Harvey J. Elam, Howard S. Young filed briefs in behalf of Artificial Ice and Cold Storage Company and White Wright & McKay appeared and filed briefs in behalf of Waltz.
The Industrial Board, having under consideration the application of the Artificial Ice and Cold Storage Company asking that compensation be awarded to one Charles A. Waltz, has certified a statement of facts to this court, and asks whether under these facts it has jurisdiction to hear said application and to make an award of compensation to said Waltz.
The facts as certified are as follows: November 22, 1922, the Artificial Ice and Cold Storage Company hereinafter designated as the ice company filed with the Industrial Board an application or complaint against Charles A. Waltz, Hugo Wuelfing, Globe Indemnity Company and Mid-American Mutual Casualty Company, alleging that on October 17, 1921, said Charles A. Waltz, an employe of Hugo Wuelfing, received a personal injury by an accident arising out of and in the course of his employment; that on account of said injuries he was entitled to an award of compensation against Hugo Wuelfing; that at the time when said Waltz received his injury he was performing labor upon work which Wuelfing was doing for said ice company under a contract; that the Globe Indemnity Company was the compensation insurance carrier of Wuelfing; that the ice company did not exact from Wuelfing a certificate from the Industrial Board that he had complied with § 68 of the Workmen's Compensation Act (Acts 1919 p. 158, § 8020z2 Burns' Supp. 1921); that the Mid-American Mutual Casualty Company was the compensation insurance carrier of the ice company; that Waltz, Wulefing, the two insurance carriers and the ice company disagreed as to the right of the latter company to have determined the compensation to which Waltz was entitled under the Workmen's Compensation Act on account of his injury and asking that the Industrial Board make an award granting said Waltz such relief as he may be entitled to under the compensation act.
All the parties named as defendants in said application entered their special appearance before the Industrial Board. Upon this special appearance Charles A. Waltz filed a plea in abatement admitting his injury as alleged in the application, but alleging that when injured the relation of employer and employe did not exist between him and the ice company; that at said time he was an employe of the defendant Wuelfing and that his injury and disability arose out of and in the course of his employment with Wuelfing and under circumstances creating a liability in the ice company under the provisions of § 13 of the Workmen's Compensation Act, Acts 1919 p. 158, § 8020w Burns' Supp. 1921, and for which injury and disability he was entitled to prosecute an action against the ice company for damages; that on January 3, 1923, he filed his complaint in the Superior Court of Marion county against the ice company for damages; that the ice company appeared to said action, which was still pending and that by reason of such facts the Industrial Board had no jurisdiction over him (Waltz), and had no power or authority to hear and determine the matters alleged in the application of the ice company and to award him compensation
The jurisdiction and authority of the Industrial Board to make the award having been raised, it has certified the above facts to this court and asks whether it has jurisdiction to hear the application of the ice company and to make an award of compensation to said Charles A. Waltz.
Both Waltz and the ice company have filed briefs in support of their contentions. The ice company contends that it is secondarily liable to Waltz for compensation and that because of such liability it has the right under § 58 of the Workmen's Compensation Act, Acts 1919 p. 158, § 8020p2 Burns' Supp. 1921, to make application to the Industrial Board for a determination of the matters in dispute, while Mr. Waltz contends that he has the right to prosecute an action for damages against the ice company under § 13 of said act, § 8020w Burns' Supp. 1921, supra, and that the Industrial Board has no jurisdiction to award compensation to him on the application of the ice company.
Section 13 of the Workmen's Compensation Act, § 8020w Burns' Supp. 1921, supra, reads as follows: "Whenever an injury or death, for which compensation is payable under this act, shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employe, or his dependents, in case of death, at his or their option, may claim compensation from the employer or proceed at law against such other person to recover damages or may proceed against both employer and such other person to recover damages or may proceed against both the employer and such other person at the same time, but he or they shall not collect from both; and, if compensation is awarded and accepted under this act, the employer, having paid compensation or having become liable therefor, may collect in his own name or in the name of the injured employe or, in case of death, in the name of his dependents from the other person in whom legal liability for damages exists, the compensation paid or payable to the injured employe or his dependents."
Section 68 of said act, § 8020z2 Burns' Supp. 1921, supra, provides, among other things, that every employer except agricultural employers and employers of domestic servants, shall register annually before the first day of September with the Industrial Board and procure a certificate from said board showing such registration.
Section 14, Acts 1919 p. 158, § 8020x Burns' Supp. 1921, provides that any person or corporation contracting for the performance of any work without exacting from the contractor a certificate from the Industrial Board that such contractor has complied with said § 68, § 8020z2 Burns' Supp. 1921, supra, shall be liable to the same extent as the contractor for compensation on account of the injury or death of any employe of such contractor, due to an accident arising out of and in the course of the performance of the work covered by such contract. It also provides that every claim filed with the Industrial Board under this section shall be instituted against all parties liable for payment, and the board in its award shall fix the order in which the parties shall be exhausted beginning with the immediate employer.
It is to be observed that § 13, § 8020w Burns' Supp 1921, supra, relates...
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