Paucher v. Enterprise Coal Mining Co.
| Decision Date | 16 November 1917 |
| Docket Number | 31650 |
| Citation | 164 N.W. 1035,182 Iowa 1084 |
| Parties | JOHN PAUCHER, Appellee, v. ENTERPRISE COAL MINING COMPANY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED FEBRUARY 15, 1918.
Appeal from Polk District Court.--W. H. MCHENRY, Judge.
ACTION for damages for injury in coal mine. Trial to a jury, and verdict and judgment for plaintiff. Defendant appeals.
Affirmed.
Clark & Byers, for appellant.
S. F Prouty and Mulvaney & Mulvaney, for appellee.
1. The trial court held that defendant had not, at the time of the injury to plaintiff, complied with the provisions of the Workmen's Compensation Act in regard to electing to come within the same, and that it was without the act.
The errors assigned are, substantially, that the court erred in holding that defendant company was not within the provisions of the Employers' Liability Act because of its failure to post notice of its election to waive the rejection of said act, theretofore made; and in holding that defendant can no longer avail itself of the common-law defenses of assumption of risk, etc., because of its failure to insure its liability, as provided in the act; in not permitting defendant to prove that it was generally known, at and about the mine, that defendant had waived its rejection of the act, and that it had filed notice of said waiver with the industrial commissioner.
It appears that, in May, 1914, defendant filed a notice with the industrial commissioner, rejecting the provisions of the Liability Act, and posted a notice of the same at its mines, as required by Section 2477-m of the Supplement to the Code of Iowa, 1913. This is admitted by the defendant; but it claims that thereafter, and on September 1, 1914, and before plaintiff was hurt,--which was in May, 1915,--it had taken such steps as would waive its rejection, by filing a notice with the industrial commissioner, and by tearing down the notices it had posted at the mine, prior thereto, rejecting the act. The notice just referred to was addressed to the Iowa industrial commissioner, and recites that it accepts the provisions to pay compensation, as provided in the act. It is admitted by defendant that it had not posted any kind of a notice at its place of business, as provided by Section 2477-m3 of the Supplement to the Code of 1913. That section reads:
Section 2477-m, Paragraph 4 (d), provides, in part, that the employer shall be presumed to have elected to pay compensation according to the provisions of the act, "unless and until notice in writing of an election to the contrary shall have been given to the employes by posting the same in some conspicuous place at the place where the business is carried on, and also by filing notice with the Iowa industrial commissioner, with return thereon by affidavit, showing the date that notice was posted, as by this act provided."
The defendant pleaded and sought to prove that, from and after the first day of September, when it filed notice of election with the commissioner, and tore down the notice of rejection, it was a matter of common knowledge, and generally talked among the employes of defendant, that it had waived its rejection of the provisions of the Compensation Act and had elected to accept the provisions of said act. It is not claimed, however, that plaintiff had any actual notice or knowledge thereof.
The defendant had not insured its liability under the Compensation Act, nor had it furnished proof to the insurance department, nor to the Iowa industrial commissioner, as to its solvency and ability to pay the compensation and benefits provided for by the act, nor deposited with the insurance department any security to secure the payment of such compensation. Defendant alleged, however, that it was solvent, and financially able to pay. Plaintiff claims that, because defendant had not complied with this insurance feature of the law, it was, for this reason also, not within the provisions of the act. If plaintiff's position as to either of these points is well taken, then the ruling of the trial court was correct. We think a substantial compliance with the law in the respects mentioned, as to giving notice of election, and the waiver thereof provided in the section quoted, etc., is required. There was not a substantial compliance by the defendant in these respects. It is possible that, had plaintiff had actual notice of the facts, it would be binding upon him; but it is not necessary to discuss that question, because, as stated, there is no claim that he did have actual notice.
Plaintiff was an Austrian, and could not talk or read the English language; and defendant says that, had a notice been posted it would have been unavailing. But it is clear that notice given according to the statute would constitute sufficient notice. We suppose one of the provisions of the act was to provide a simple, speedy remedy in such cases, and to simplify the procedure. To hold that there may be material departures from the provisions of the act would tend to make confusion, would raise questions of fact for determination in some cases, and disputed questions of law, and tend to complicate the determination of such cases. The statute quoted plainly requires a notice in writing...
To continue reading
Request your trial
-
Paucher v. Enter. Coal Mining Co.
...182 Iowa 1084164 N.W. 1035PAUCHERv.ENTERPRISE COAL MINING CO.No. 31650.Supreme Court of Iowa.Nov. 16, 1917 ... Appeal from District Court, Polk County; W. H. McHenry, Judge.Action for damages for injury in coal mine. Trial to a jury, and verdict and judgment for plaintiff. Defendant appeals. Affirmed.[164 N.W. 1035]Clark & Byers, of Des ... ...