Pittsburgh, C., C. & St. L.R. Co. v. Parker

• Decision Date: 11 October 1921
• Docket Number: No. 23528.,23528.
• Citation: 191 Ind. 686,132 N.E. 372
• Parties: PITTSBURGH, C., C. & ST. L. R. CO. v. PARKER.
• Court: Indiana Supreme Court

191 Ind. 686

132 N.E. 372

PITTSBURGH, C., C. & ST. L. R. CO.

v.PARKER.

No. 23528.^*

Supreme Court of Indiana.

Oct. 11, 1921.

Appeal from Superior Court, Marion County; John J. Rockford, Judge.

Action by James R. Parker against the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Pickens, Moores, Davidson & Pickens, of Indianapolis, for appellant.

Hodges & Ridgely and James H. McNeff, all of Gary, for appellee.

EWBANK, J.

The appellee was employed by the Dunn-McCarthy Company as a carpenter, building forms for concrete bridges that were being constructed for the appellant railroad company in the new yards it was building in the eastern part of Indianapolis. The complaint was filed June 12, 1917. Each paragraph alleged, and there was evidence tending to prove, that said Dunn-McCarthy company had a contract with the appellant by which it undertook to do certain construction work on appellant's premises, and that it sent appellee and other workmen on said premises to do that work under some kind of supervision by inspectors in the employ of appellant. While he was so engaged, appellee was struck and injured on November 17, 1916, by an iron pipe that fell from a trestle, as a locomotive engine belonging to appellant, operated by one of appellant's engineers, was being run across the trestle. Appellee sued appellant and the Dunn-McCarthy Company, and recovered a verdict for $20,000 damages against the appellant, on which judgment was rendered. The errors assigned are overruling appellant's several demurrers to each paragraph of the complaint, for the alleged reasons that neither stated facts sufficient, and that the court was without jurisdiction, and overruling its motion for a new trial, to each of which rulings appellant reserved an exception.

[1] Each paragraph of the complaint alleged, in substance, that appellant was employed at the time of his injury by the Dunn-McCarthy Company, and that said company was operating under the Compensation Law of Indiana, and that an award of 55 per cent. of appellee's wages for 200 weeks, as against the said employer, was made by the Industrial Board of the state of Indiana, and that said employer paid the award to the appellee, as the payments became due, up to the time this action was commenced. But the first paragraph alleged that appellant was operating an interstate railroad, and was repairing and rebuilding part of such railroad, and that the Dunn-McCarthy Company employed appellee to work thereon, and that he was “an employé at work upon the bridges and tracks of” appellant, and that both he and the appellant were engaged in interstate commerce at the time of the injury, and that appellant had rejected the Compensation Law of Indiana. And the appellee in asking instructions, and the trial court in giving them, construed this to mean that appellee was in the employ of appellant, and as such employé was engaged in interstate commerce. The language of the pleading is ambiguous, but there was no motion to make it more specific.

Understood as alleging that appellee was in the employ of appellant, and that both appellee and appellant were engaged in interstate commerce at the time of the injury, the first paragraph of the complaint stated a cause of action for injuries inflicted by a railroad on one of its employés, when both it and the employé were engaged in interstate commerce. We cannot say that it will not bear that interpretation, and therefore no error was committed in overruling the demurrer to said first paragraph. Accepting compensation from the Dunn-McCarthy Company is not shown by the allegations of this paragraph to have misled or affected the appellant in such a way as to create an estoppel in its favor that could release it from paying damages under the federal Employers' Liability Act, if otherwise liable.

Each of the second, third, and fourth paragraphs of the complaint, in addition to the facts above recited as being contained in all the paragraphs, charged that appellee was employed by the Dunn-McCarthy Company, which had a contract with appellant to do certain work on appellant's premises, and that while he was engaged in such work thereon appellant negligently injured him. The fourth paragraph also alleged that by reason of the contract relations between appellant and the Dunn-McCarthy Company appellee was in the employ of appellant, and that appellant had refused “to take under such Compensation Act” of Indiana, but said nothing about being engaged in interstate commerce. The second paragraph of the complaint also alleged that the Dunn-McCarthy Company voluntarily had paid appellee (plaintiff) $8.28 per week since his injury, and voluntarily had submitted itself to the jurisdiction of the Industrial Board, and voluntarily had permitted an order of said board to be made that payments at that rate should continue 200 weeks. The third paragraph alleged that since the accident the said company, “over the protest of [appellee], has been and is now compensating” him “in the sum of $8.28 per week, being 55 per cent. of the wages earned by him before his injury, and such compensation is to continue for 200 weeks,” and the fourth paragraph alleged that appellant-

“tendered and paid to this plaintiff [appellee] the sum of $8.28 per week, as being 55 per cent. of his wages, and voluntarily went before said Industrial Board *** and submitted to an order to pay plaintiff $8.28 per week for 200 weeks; the said plaintiff at all times refusing to accept said sum in release of his claim against said railroad company, and protesting such payment for such purpose. That said defendant railroad company *** was at no time a party to any order made by the Industrial Board.”

Each paragraph alleged that the Dunn-McCarthy Company was claiming an interest in appellee's right of action by reason of the facts stated. The appellee testified that something more than 3 weeks after he was injured he called upon a representative of the Dunn-McCarthy Company to see about the 55 per cent. of his wages, and a month later went to the Industrial Board, and afterward went back to attend a hearing before the board, when he signed an application for compensation, stating that his average earnings had been $18 per week, and demanding $9.90 per week; that he afterward signed a petition asking the Industrial Board to determine whether he could receive the $8.28 per week for 200 weeks and at the same time prosecute an action against the railroad company; and that the Dunn-McCarthy Company paid to him, and he received from it, $8.28 per week up to the time of the trial, in March, 1918, and intended to do so for the remainder of 200 weeks.

The record of proceedings before the Industrial Board, read in evidence, recited an agreement, signed by appellee and by the Dunn-McCarthy Company, that appellee should receive compensation at the rate of $8.28 per week, not exceeding 500 weeks, and the approval of such agreement by the Industrial Board, and a hearing on appellee's application 3 months later, and an award of $8.28 per week for 200 weeks. There was no evidence disputing that the amended award was made upon a hearing petitioned for by appellee, and that appellee had received $8.28 per week from December 1, 1916, up to the date of the trial, March 21, 1918.

The court gave a number of instructions, and refused to give others, properly requested, the exceptions to which present for decision the same question of law that is presented by the exceptions to the ruling on the demurrers to each of the second, third, and fourth paragraphs of complaint, to wit: Under section 13 of the Workmen's Compensation Act (Acts 1915, p. 395, c. 106), did the award by the Industrial Board, followed by the receipt and acceptance on the part of appellee of weekly payments made by the Dunn-McCarthy Company, pursuant to the award, for a period of six months or longer, operate as a bar to appellee's alleged cause of action against the railroad company? That section reads (our italics) as follows:

“Whenever an injury 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 employé may at his option either claim compensation or proceed at law against such other person to recover damages or proceed against both the employer and such other person, but he shall not collect from both; and if compensation is awarded under this act the employer, having paid the compensation or having become liable therefor, may collect in his own name or that of the injured employé from the other person in whom legal liability for damages exists, the indemnity paid or payable to the injured employé.” Acts 1915, p. 395, c. 106, § 13.

[2] The great weight of authority holds that under the provision, as recited, that the injured employé “shall not collect from both” the employer and a third person who caused his injury, and that an employer, “having paid the compensation or having become liable therefor, may collect *** the indemnity paid,” an employé, who petitioned for the review of an award made in his favor, and procured it to be fixed at a definite amount, payable in weekly installments, and thereafter, for many months, accepted from his employer and receipted for the weekly payments as they became due, surrendered whatever right he might have had to recover at common law, from a third person whose negligence caused his injuries, damages in excess of the compensation awarded him. Mayor, etc., of Hagerstown v. Schreiner, 135 Md. 650, 109 Atl. 464;Louis Bossert & Sons v. Piel Bros., 112 Misc. Rep. 117, 182 N. Y. Supp. 620;Barry v. Bay State R. Co., 222 Mass. 366, 110 N. E. 1031;Turnquist v. Hannon, 219 Mass. 560, 107 N. E. 443; In re Cripp and Ætna L. Ins. Co., 216 Mass. 586, 104 N. E. 565, Ann. Cas. 1915B, 828;...