Pittsburgh, Cincinnati, Chicago And St. Louis Railway Co. v. Gipe
| Decision Date | 16 January 1903 |
| Docket Number | 19,708 |
| Citation | 65 N.E. 1034,160 Ind. 360 |
| Parties | Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Gipe, Administratrix |
| Court | Indiana Supreme Court |
Rehearing Denied April 2, 1903.
From Hamilton Circuit Court; J. F. Neal, Judge.
Action by Flora J. Gipe, administratrix of the estate of Sylvester H. Gipe, deceased, against the Pittsburgh, Cincinnati Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Reversed.
J. L Rupe, W. R. Hough, George Shirts and W. R. Fertig, for appellant.
W. J. Beckett, I. W. Christian, W. S. Christian, B. K. Elliott, W. F. Elliott and F. L. Littleton, for appellee.
Flora J. Gipe, as administratrix of the estate of Sylvester H. Gipe, deceased, instituted this action against appellant and the Pennsylvania Company to recover damages for the alleged negligent killing of her decedent. Appellee voluntarily dismissed the action as against the Pennsylvania Company. Appellant demurred to the amended complaint for want of facts, its demurrer was overruled, and it excepted to such ruling, and assigns error thereon. On issues duly joined, there was a trial that resulted in a verdict and judgment for appellee. Appellant unsuccessfully moved for a new trial, and the further questions in this case are presented by an assignment of error based on the latter ruling.
It is sought by the amended complaint to make a case within the first portion of the fourth subdivision of the employers' liability act (§ 7083 Burns 1901). But two objections are urged to such pleading: (1) Because deceased and the alleged negligent fellow servant were, at the time of the death of the former, engaged in the performance of duties as locomotive engineers, it is claimed that they were vice-principals, and that the statute does not impose a liability in such cases; and (2) that the condition of certain tracks, in the switch yard where decedent met his death, in respect to their crossing at an angle so acute as not to leave sufficient room for clearance for some distance on either side of the crossing, is shown to have been one of the assumed risks of the employment. We know of no reason why the statute should not be construed as creating a liability as between vice-principals. But we deny that it appears that these employes were vice-principals. Appellant's counsel, in their brief, speak of them as fellow servants, and the only basis for the claim that they were vice-principals appears to be the statement in some of our decisions that in cases falling within the first part of the fourth subdivision of said statute the negligent employe is to be regarded as a vice-principal. See Thacker v. Chicago, etc., R. Co., 159 Ind. 82, 64 N.E. 605, and cases cited. We need not pause to determine whether such statement would justify itself in every state of circumstances that might arise under that portion of the statute; it suffices to state that while the statutory provision has created a greater responsibility upon the part of the master, it has not operated to create a merely artificial relation that can be made the basis for refinements that would tend to impair the force of the enactment.
The second objection to the amended complaint is answered by the statement that the charge of negligence is not based on the situation of the tracks, but that the pleading is based on a charge of negligence upon the part of an engineer in the common service. If there are further objections to the statement of the cause of action, they stand as waived in this court by a failure to discuss them.
We pass now to a question that was presented under the issues based on the second paragraph of answer. The pleading mentioned stated, in substance, the following facts: That appellant was a party to an agreement among certain railroad companies whereby a so-called voluntary relief department was organized for the payment of fixed benefits to employes of said companies and their beneficiaries; that said department was maintained by the contributions of employes becoming members thereof, supplemented by the contributions of such companies, by virtue of a provision in said contract to meet all deficiencies in the fund; that decedent became, and was at the time of his death, a member of said department, under a contract based on an application containing the following provisions: "And I agree that the acceptance of benefits from said relief fund, for injury or death, shall operate as a release of all claims for damages against said company, arising from such injury or death, which could be made by or through me, and that I or my legal representatives will execute such further instrument as may be necessary formally to evidence such acquittance." The answer further shows that the regulations of said department, that are made a part of the contract by the terms of the application, provide that if suit be brought for such injury or death, payment shall not be made of such benefit until the suit is discontinued, and that if such suit result in a judgment against the company, or be compromised by it, that payment of such judgment or of the amount of the compromise shall preclude any claim upon the relief fund for such injury or death. It is also alleged in said answer that the beneficiary named by decedent in his application was his wife, Flora J. Gipe, and that, with knowledge of the facts aforesaid, she was appointed and qualified as administratrix of decedent's estate, and that, with such knowledge, she afterwards elected for herself, as beneficiary, and as said administratrix, to claim and demand from said relief fund the death benefit so provided, and that thereupon there was paid to her, as such administratrix, the amount of said death benefit, in the sum of $ 750, and that, as such administratrix, she signed and executed a full release and discharge of said relief fund and of said Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, which release and discharge was in the following words: "Whereas, Sylvester H. Gipe, deceased, lately in the service of the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, was a member of the relief fund of the said company, under application No. 5,561, and the death benefit payable from the said relief fund on account of such membership, amounting to $ 750, is, upon the condition of the execution of this release, as provided in said application, payable to the undersigned, beneficiary of the deceased, under the terms of his application. Beneficiary: Flora J. Gipe (widow). Now, therefore, I, the undersigned, do hereby acknowledge that the payment of the said sum of $ 750 from the relief department and fund of the said company, which sum I acknowledge to have this day received, is in full satisfaction and discharge of all claims or demands on account of or arising from the death of said deceased, which I now have, or can hereafter have, whether against the said relief fund, the said Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, or any other corporation associated therewith in administration of their relief department. Witness my hand and seal at Indianapolis, Indiana, this 28th day of January, A. D. 1898.
(Signed) Flora J. Gipe (L. S.).
(Signed) Flora J. Gipe, Adm. (L. S.)"
A third paragraph of answer was filed, by which appellant answered the facts alleged in said second paragraph of answer, in bar only of the claim of the widow. The appellee replied to the special paragraphs of answer in two paragraphs,--general denial, and no consideration. The court instructed the jury, upon the close of the argument, that there could be no award of damages in favor of the widow, so we need not consider that feature of the case further. The court refused, however, to give a peremptory instruction to find for the defendant, and modified an instruction tendered by appellant, by adding these words: "But if as to the children of said deceased, such release, executed by said Flora J. Gipe, was without any consideration moving to or received for them in her trust capacity, the same would only bar the right of recovery for said Flora for her individual benefit, but would not bar a recovery for the benefit of said children."
The appellant's evidence in support of the averments of the second paragraph of its answer consisted largely of the various documents heretofore mentioned in connection with our statement of the contents of said paragraph. The appellee offered no evidence in support of her reply, and the questions presented with reference to whether the defense on this branch of the case was made out will be discussed as we proceed.
In Pittsburgh, etc., R. Co. v Moore, 152 Ind. 345, 44 L. R. A. 638, 53 N.E. 290, this court held that an answer substantially like the third paragraph of answer in this case, answering only as to the damages of the widow, was sufficient. It was in that case pointed out that while a beneficiary in such a case is at liberty to seek the statutory remedy, yet if he accepts the sure and immediate benefit of the fund, instead of taking his chances in the courts against the company, the result, at least while the contract stands, is a release of his claim for the tort. To the same effect see Pittsburgh, etc., R. Co. v. Hosea, 152 Ind. 412; 51 Cen. L. J. 143. It can not be denied that a release by a widow, who is the beneficiary, is not a release as to the next of kin, who have a right under the statute to share in the damages notwithstanding the stipulation of the decedent. In this case, however, the question is presented differently, for here the instrument of release was signed by the beneficiary and the administratrix. This leads us to an...
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