Otis Elevator Co. v. Miller & Paine

• Decision Date: 28 February 1917
• Docket Number: 4767.
• Citation: 240 F. 376
• Parties: OTIS ELEVATOR CO. v. MILLER & PAINE.
• Court: U.S. Court of Appeals — Eighth Circuit

240 F. 376

OTIS ELEVATOR CO. v. MILLER & PAINE.

No. 4767.

United States Court of Appeals, Eighth Circuit.

February 28, 1917

William F. Gurley and David A. Fitch, both of Omaha, Neb., for plaintiff in error.

Edmund C. Strode, R. J. Greene, and Maxwell V. Beghtol, all of Lincoln, Neb., for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and RINER, District Judge.

CARLAND Circuit Judge.

On September 14, 1915, Miller & Paine, a corporation, was constructing a building at Lincoln, Neb. Harry D. Pettengill was at the time mentioned one of its employes, engaged in the performance of work on said building. While so engaged he received an injury which immediately caused his death. The employer and employe were subject to the 'Workingmen's Compensation Act.' Sections 92 to 146, inclusive, article 8, chapter 35, Rev. St. Neb. 1913. The employe left surviving him and dependent upon him for support a wife and child. The law above mentioned provided (section 113 (Laws 1913, c. 198, Sec. 22)) that the employe should be entitled to compensation from his employer in an amount equal to 50 per cent. of his wages at the time of death provided the compensation should not be more than $10 nor less than $5 per week, payable during the period of dependency which should not exceed 350 weeks. It provided (section 116 (Laws 1913, c. 198, Sec. 25)) that except as otherwise provided said compensation should be paid periodically in accordance with the method of payment of wages at the time of the death of the employe. It provided (section 113) that the employer should be liable for the reasonable expense of the last sickness and burial of the employe, not exceeding the sum of $100. It provided (section 127 (Laws 1913, c. 198, Sec. 36)) that the parties interested within the limitations of the law might settle all matters relating to compensation. It provided (section 130 (Laws 1913, c. 198, Sec. 39)) that in the event there was a dispute as to the compensation due an employe either party might bring an action in the state court to determine the amount thereof and how it should be paid.

April 20, 1915, Morris W. Folsom, administrator of the estate of Pettengill, commenced an action in the district court for Lancaster county, Neb., against Miller & Paine, to have the amount of the compensation due the dependents of Pettengill determined and also the manner of paying the same. Miller &amp Paine filed an answer to the petition of the administrator and also a cross-petition against the Otis Elevator Company an Illinois corporation, hereinafter called 'Elevator Company,' which it asked should be made a party defendant in the action. In the cross-petition against the Elevator Company, Miller & Paine set forth facts which, if true, would have entitled the dependents of Pettengill, or the administrator of his estate, to recover damages for the negligent killing of Pettengill. The state court ordered that the Elevator Company be made a party defendant, as prayed for by Miller & Paine.

Subsequently the Elevator Company removed the whole case into the United States District Court for the District of Nebraska, on the ground of diverse citizenship. After the cause had been removed as stated, the administrator filed a motion to remand. On considering this motion the United States District Court decided that there were two controversies arising on the record: One between the administrator and Miller & Paine under the statute, and the other between Miller & Paine and the Elevator Company under its right of subrogation hereinafter mentioned. Being of this opinion, the United States District Court remanded the issue between the administrator and Miller & Paine to the state court and retained jurisdiction of the action between Miller & Paine and the Elevator Company. The last-named action proceeded to trial, and a verdict and judgment in the sum of $10,000 was recovered. From this judgment against it the Elevator Company has prosecuted a writ of error to this court, assigning certain errors.

The assignment of errors has been discussed by counsel on both sides in their briefs under three propositions, and we will follow the method adopted by counsel in disposing of the case. Counsel for the Elevator Company contend, first, that section 109 of the Workingmen's Compensation Act does not apply to an employer whose negligence concurred in causing the injury or death of his employe; second, that section 109 does not apply to an employer whose employe was injured or killed through the negligence of a third person without fault on the part of the employer, where said employer has suffered no money damage by the payment of compensation or compensation to be paid, and who in the event of a recovery has no interest in the avails of the suit or any part thereof; third, that section 109 does not apply to an owner who carries on his work, as provided by section 107, through an independent contractor, who is required to carry a policy of insurance from a company licensed to make such insurance, which policy of insurance guarantees payment of compensation to injured workmen. Sections 109 and 107 above referred to read as follows:

109 'Where a third person is liable to the employe or to the dependents for the injury or death, the employer shall be subrogated to the right of the employe or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employe or dependents, but such employer may recover any amount which such employe or his dependents would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the...