Tevoght v. Polson

• Decision Date: 05 May 1939
• Docket Number: No. 31965.,31965.
• Citation: 285 N.W. 893,205 Minn. 252
• Parties: TEVOGHT v. POLSON et al.
• Court: Minnesota Supreme Court

285 N.W. 893

205 Minn. 252

TEVOGHT v. POLSON et al.

No. 31965.

Supreme Court of Minnesota.

May 5, 1939.

Rehearing Denied June 8, 1939.

Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.

Suit by Edward Tevoght against August E. Polson, sole trader doing business as Charcoal Sales Company, and another, for personal injuries. From a judgment in favor of the defendants, the plaintiff appeals.

Judgment reversed.

Erling Swenson, of Minneapolis, for appellant.

Freeman & King, of Minneapolis, for respondents National Fuel Co. et al.

F. A. Barlow, of Minneapolis, for respondent August E. Polson.

LORING, Justice.

In a suit for damages for personal injuries the defendants had judgment on the pleadings and stipulated facts. The plaintiff appealed. He was an employe of the city of Minneapolis at its incinerator and was injured at the plant by the operation of a truck which was delivering coal sold to the city by the defendant International Fuel Company, which had employed August Polson to deliver it. All the employers and employees were within the protection of part 2 of the workmen's compensation act. Mason's Minn.St.1927, § 4268 et seq. After his injury Tevoght applied for and received compensation from the city. He then brought this suit in the district court to recover damages for his injuries alleging that they were caused by the negligence of Polson's driver. The court held that the plaintiff was barred from recovery by the provisions of § 4291, Mason's Minn.St.1927, which was originally § 33 of c. 467 of Laws, Minn. 1913, superseded by § 31 of c. 82 of Laws 1921 and amended by § 1, c. 279, Laws of 1923. This section as it originally appeared in the act provided that when an employe was injured by someone other than his employer he might proceed at law either against such party or against his employer for compensation under the act, but not against both. Obviously this section assumed to take from an employe who was subject to part 2 of this act his common law remedy against an employer other than his own who was also subject to that part of the act. This was the section most vigorously assailed as unconstitutional when the act was first attacked. Mathison v. Minneapolis Street Ry. Co., 126 Minn. 286, 296, 148 N.W. 71, L.R.A.1916D, 412. This court sustained the provisions of the section, and held that a third party who was an employer and as such subject to part 2 of the statute was within the protection of this section where the injury resulted from a negligent act committed in carrying on the business in which he employed such laborer or in the furtherance of such business, but was not within the protection of this section where the negligent act had no relation to or connection with such business. Uotila v. Oliver Iron Mining Co., 165 Minn. 475, 477, 206 N.W. 937, and cases cited therein. In 1923 the legislature by c. 279, Laws of that year, amended § 31, c. 82, Laws 1921, which is now § 4291 of Mason's Minn.St.1927, by providing that the portion of the section which we have referred to "shall apply only where the employer liable for compensation under part 2 of this act, and the other party or parties legally liable for damages were engaged in the due course of business, (a) in furtherance of a common enterprise, or (b) the accomplishment of the same or related purposes in operation on the premises where the injury was received at the time thereof, and not otherwise." Thus the employe, prior to 1913, had a common law action which § 33 of the compensation act took from him and which the quoted amendment restored in part. No other state has such a provision as that incorporated in this amendment, and it was left to this court to interpret its provisions, which especially in the case of subdivision (b) are rather vague and uncertain. The legislative history of c. 279 throws no light whatever upon the purposes of the legislature or the extent to which it sought to restore to the employe his common law right of action. It may be that it intended that his common law right of action should only be eliminated in situations like those where contractors and sub-contractors are engaged on the same project and their employees exposed to the hazards created by such mutual engagements. But our decisions have gone much further than that in depriving the employe of his common law right of action and there have been numerous sessions of the legislature since those decisions and no amendment of the law as so interpreted has been made. It would serve no useful purpose here to review all of the cases where this provision of the...