Young v. G. L. Tarlton, Contractor, Inc

• Decision Date: 11 May 1942
• Docket Number: 4-6709
• Citation: 162 S.W.2d 477,204 Ark. 283
• Parties: YOUNG, ADMINISTRATOR, v. G. L. TARLTON, CONTRACTOR, INC
• Court: Arkansas Supreme Court

162 S.W.2d 477

204 Ark. 283

YOUNG, ADMINISTRATOR, v. G. L. TARLTON, CONTRACTOR, INC

4-6709

Supreme Court of Arkansas

May 11, 1942

Appeal from Pulaski Circuit Court, Second Division; Lawrence C Auten, Judge; reversed.

Judgment reversed, and cause remanded.

Coulter & Coulter, for appellant.

Buzbee Harrison & Wright, for appellee.

OPINION

SMITH, J.

Appellant Cole Young, as administrator of the estate of Thomas E. Young, brought this suit to recover damages for the alleged negligent killing of his intestate against defendants in whose service the intestate was employed at the time of his death. It was alleged that on December 10, 1940, intestate was run over by a truck driven by another employee of defendants, the circumstances of which are detailed and are alleged to constitute actionable negligence.

A motion to dismiss the complaint was filed, which averred that the provisions of § 9130, Pope's Digest, pursuant to which the suit was brought, were inapplicable, for the reason that Act 319 of the Acts of 1939, p. 777, known as the Workmen's Compensation Law, was in effect on December 10, 1940, and that defendants had fully complied with the provisions of said act, so as to bring plaintiff's intestate under the exclusive remedies contained in said act, and it was, therefore, alleged that the Arkansas Workmen's Compensation Commission had sole jurisdiction to hear and determine any question relative to the payment of money benefits arising from the death of the intestate.

A response to this motion was filed, which alleged that defendants were not, on December 10, 1940, subject to nor protected by the Workmen's Compensation Law, for the reasons: (1) defendants were engaged in performing labor and doing work within the confines of a United States military post; (2) defendants were foreign corporations and not authorized to transact business in Arkansas, and were not subject to the Arkansas Workmen's Compensation Law, and had not complied with the provisions of §§ 7 and 8 of that act; (3) defendants had not secured the payment of compensation as required by the provisions of the compensation act or posted or given the notice required by law that they had done so; (4) that the policy of compensation insurance had not been properly approved; (5) the law is unconstitutional and void, in that, pursuant to the provisions of § 25 thereof, it deprives the claimant of his right to a trial of facts by a jury, contrary to the provisions of § 7 of art. 2 of [204 Ark. 285] the Constitution of Arkansas, and of art. 7 of the Amendments to the Constitution of the United States.

Interrogatories were attached to this response requiring defendants to answer in what manner they had complied with the provisions of the act, thereby bringing themselves within its protection.

A verified answer was filed in response to these interrogatories, the truth of which was not questioned, showing full and proper compliance with the act.

The motion to dismiss was overruled, whereupon defendants filed an answer, in which, after reserving their prayer that the cause of action be dismissed, all the material allegations of the complaint in regard to negligence were denied, and it was alleged that the intestate's death was due solely to his own negligence. The case proceeded to a trial. At the conclusion of the introduction of the testimony the court charged the jury as follows: "Ladies and gentlemen of the jury, the plaintiff having rested on the question of liability, the defendant has moved for an instructed verdict, which motion is by the court granted. The court feels in this case that under the most favorable testimony, and giving all the weight and credit to the testimony the court in its discretion can give to the testimony of the witnesses for the plaintiff, the plaintiff has not made out a case of negligence. The testimony might show that the truck driver in this case may have violated some regulation they had with reference to starting of trucks without the employees on them. Here the testimony is undisputed the employee had gone on some sort of errand and came out and saw the truck moving and attempted to climb onto the truck while it was moving and fell under it and was killed. The court rules as a matter of law that under the testimony there is nothing for the jury to determine because his negligence was the proximate cause of his injury and the sole cause of his injury and death and for those reasons the court directs you to return this verdict: 'We, the jury, under direction of the court, find for the defendants.'"

Judgment for defendants was pronounced upon the verdict returned under this direction of the court, and from that judgment is this appeal.

It was shown in the testimony that intestate's employer was engaged in construction work at Camp Robinson, a United States military post; but that fact does not render the provisions of the act inapplicable. Section 290, Title 40, USCA, reads as follows: "Section 290. State workmen's compensation laws; extension to buildings and works of United States.

"Whatsoever constituted authority of each of the several states is charged with the enforcement of and requiring compliance with the state workmen's compensation laws of said states and with the enforcement of and requiring compliance with the orders, decisions, and awards of said constituted authority of said states shall have the power and authority to apply such laws to all lands and premises owned or held by the United States of America by deed or act of cession, by purchase or otherwise, which is within the exterior boundaries of any state, and to all projects, buildings, constructions, improvements and property belonging to the United States of America, which is within the exterior boundaries of any state, in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the state within whose exterior boundaries such place may be.

"For the purposes set out in this section, the United States of America hereby vests in the several states within whose exterior boundaries such place may be, in so far as the enforcement of state workmen's compensation laws are affected, the right, power and authority aforesaid; provided, however, that by the passage of this section the United States of America in nowise relinquishes its jurisdiction for any purpose over the property named, with the exception of extending to the several states within whose exterior boundaries such place may be only the powers above enumerated relating to the enforcement of their state workmen's compensation laws as herein designated; provided further, that nothing in this section shall be construed to modify or amend §§ 751 to 796 of Title 5. June 25, 1936, c. 822, §§ 1, 2, 49 Stat. 1938, 1939."

The laws of this state relative to the domestication of foreign corporations have no application, for the reason that appellees were engaged in construction work for the United States at a military post under the jurisdiction of the United States. In the case of Surplus Trading Co. v. Cook,...