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its contention, marked an important change in the law in regard to the liability of employers for personal injuries to employees. Under the above act, the negligence of a fellow servant is not a defense, except as mentioned in the second section of the act. If appellant came within any exception under the second section, it was incumbent upon it to allege and prove its exemption thereunder. Dunaway et al. v. Austin Street Ry. Co. et al., 195 S. W. 1157. This it did not do. The assignment is overruled.

[5] The ninth assignment complains of the eighth paragraph of the court's general charge, because it submitted as a ground of negligence the unfitness or incompetence of the watchman, in that he could not speak the English language. It is claimed that neither the pleadings nor the evidence warranted the submission of the issue. We need not state the pleading or the evidence. The pleading is sufficient to raise the issue. The Mexican watchman, Moraza, who shot appellee, said:

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"The foreman of the Pullman Company had employed me to work. He gave me instructions to the effect that I was not to let any one go into those cars. If one of officials of the Pullman Company went in there himself, without an order or permit, not to let him in. * * As I could not talk English, and this man (the other watchman) was working for the same company at another place, I went for him, to have him there with me. I went inside and called the porter to come. I told him, 'Come here with me.' I told him in English, 'Hello, porter, please come on.' I arrested three of them (porters). The negro was running out of the car at the time I shot him; I called them to stop. None of them stopped, and on that account I shot one of them. I was then inside of the car. The negro was getting off to run, getting down from the The foreman knew that I had a pistol, because on one occasion. I pulled my pistol out in his presence, and put cartridges in it, and he asked me, 'Have you got a pistol?' and I said, 'Yes' and he said, 'Be careful with it.""

car.

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-and detailed the conversation with the foreman about having the pistol. He further said, "I cannot talk any English." Appellee, in detailing what occurred in the car, among other things, said:

"I did not know what the Mexican was doing there. I thought he was trying to hold me up. I did not understand anything he was saying. He did not act like he understood anything I was saying. I tried to reason with him in my language, but I could not get him to understand nothing. It looked like he come there to shoot me. * * * After he shot me, we clinched, and I put him down at that time. I then ran off, because he hollowed something in his language, and I seen another Mexican with a flashlight and gun coming through the car. I cannot speak

Spanish at all. I cannot understand any of it. My duties representing the Pullman Company kept me there."

We think the incompetence of the Watchman is made clear in view of the fact that he could not speak the same language of the porter, and in connection with their conflicting duties. Ruling Case Law, vol. 18, p. 721, states the rule:

"If a master knowingly employs servants who are incompetent by reason of their habits, or otherwise, he is liable for an injury occasioned to a fellow servant by their incompetency, just as he would be liable for any injury caused by a defective machine." Ignorance of the language customarily employed is held to constitute incompetency. Ruling Case Law, vol. 18, page 727, and cases referred to under note 19.

There is no merit in the tenth and eleventh assignments, complaining of the eighth paragraph of the general charge on the ground that it was not shown that the company had any knowledge of the fact that appellee would enter the car while in waiting at El Paso, and that it was no part of appellee's duty to be on or about the car at that time and place. Appellee testified: The superintendent gave me orders to take charge of the car and stay with the car. * The superintendent in Dallas told me to stay with the car until it got back there." His evidence is uncontradicted.

What we have said in disposing of the eighth assignment applies to the twelfth, and it is overruled. There is neither pleading nor proof of any fact to show the applicability of the second section of the Employers' Liability Act. Acts Regular Session 1913, p. 429; Dunaway et al. v. Austin Street Ry. Co. et al.,

supra.

There is no merit in the thirteenth assignment, claiming that the verdict and judgment is contrary to the law and evidence, in that it is not shown that the watchmen were authorized by the company to arm themselves, or that the company knew they were armed, nor that the company had authorized the watchmen to arrest any one. The case of Rucker v. Barker, supra, holds contrary to appellant's contention. Also Railway Co. v. Parsons, 102 Tex. 157, 113 S. W. 914, 132 Am. St. Rep. 857. The court in its charge complained of did not submit to the jury any question of authority of the watchmen to arm themselves, or any such authority conferred by the company.

[6] The fourteenth assignment complains that the verdict is excessive. We believe the verdict it excessive. If appellee will, within 15 days, file a remittitur of $950, reducing the judgment to the amount of $1.800, the judgment will be affirmed; otherwise, the judgment will be reversed and remanded.

SUPREME COURT OF UTAH.

INDUSTRIAL COMMISSION OF UTAH

V.

DALY MINING CO. (No. 9118.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-SECURITY.

Workmen's Compensation Act (Laws 1917, c. 100) § 53, requiring that employers shall insure payment of compensation in one of three ways, is compulsory on all employers.

(For other cases, see Master and Servant, Dec. Dig. § 351.)

2. MASTER AND SERVANT-MANDAMUS-INDUSTRIAL COMMISSION-REQUIRING EMPLOYER TO SECURE PAYMENT OF COMPENSATION..

The Industrial Commission may proceed in mandamus to compel employers to secure payment of compensation to employees required by Workmen's Compensation Act, § 53, because it has no other adequate remedy, and cannot sue for premiums where the employer has not elected under what provision it will be bound.

(For other cases, see Master and Servant, Dec. Dig. § 394.)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT.

It is for the Industrial Commission alone to decide whether an employer will deposit security where it has elected to come under Workmen's Compensation Act, § 53, subd. 3, providing that an employer need not insure where it furnishes to the commission satisfactory proof of financial ability to pay compensation direct to injured employees.

(For other cases, see Master and Servant, Dec. Dig. § 383.)

Original application for writ of mandate by the Industrial Commission of Utah to compel the Daly Mining Company to furnish security for payment of compensation to employees. Writ granted.

Dan. B. Shields, Atty. Gen., and Jas. H. Wolfe and O. A. Dalby, Asst. Attys. Gen., for plaintiff.

Marioneaux, Stott & Beck, of Salt Lake City, for defendant.

FRICK, C. J. This is an original application to this court by the plaintiff, hereinafter for convenience called the "commission," for a writ of mandate to require the defendant to comply with a certain order made by the commission to which we shall more specifically refer later. An alternative writ was duly issued requiring the defendant to comply with the order of the commission or to appear in this court and show cause why it refuses to do so. The defendant appeared and filed a general demurrer and answer at the same time. In view that the answer raises

* Decision rendered, April 3, 1918. 172 Pac. Rep. 301.

no material issue, the whole controversy was presented on the general demurrer.

The application for the writ is predicated on chapter 100, Laws Utah 1917, p. 306. The act is quite voluminous and is divided into more than 100 sections, some of which are in themselves very long. It is not practical to set forth the act at length nor to give all of its provisions even in condensed form. We shall therefore set forth such portions only of the act as are deemed strictly essential to a full understanding of the controversy, and the other portions that are deemed material will be stated in condensed form merely.

[1] The act creates what is termed the Industrial Commission of Utah, which is the plaintiff here. called the "commission." The arrangement of the various matters contained in the act is not as orderly and logical as it might have been made, yet, when the objects and purposes of the act are considered and it is viewed as a whole, the intention of the Legislature, we think, can readily be ascertained. When that intention is once ascertained, it necessarily controls. 2 Lewis, Sutherland, St. Const $347. Counsel for the respective parties are, however, hope lessly at variance as to the real meaning of the several provisions of the act, and especially with respect of whether the provisions of the act are compulsory and thus require the employer to secure in advance the payment of any compensation to which any employee may become entitled under the act. The Attorney General insists with much vigor that in that regard the act is manifestly compulsory, while counsel for defendant with much force contend that the act is elective, or, at most, coercive. Whether it is the on or the other is the only question that is for determination, and we shall now, as briefly as Proceed to a consideration of that question. We shall first set forth the portions of the act as before indicated. We shall refer to the sections in the order they are numbered in the act, regardless of the matter contained therein. stating matters of inducement and providing for the organization of the commission, in sections 1 to 31, section 32 prescribes rather drastic penalties in case any of the provisions or requirements of the act are violated.

presented

possible,

After

Section 34 provides that all employers of labor, in January of each year, must make and file with the commission certain statements as provided in that section.

Section 35 creates what is termed "the state insurance fund for the

pensation under this act, and of assuring to the persons entitled thereto the compensation provided by this act."

Section 41 provides that all employers who insure in "the state insurance fund" shall receive from the commission a contract or policy of insurance in a form to be approved by the state commission.

Section 50 reads as follows:

"The following shall constitute employers subject to the provisions of this act: (1) The state and each county, city, town and school district therein. (2) Every person, firm and private corporation, including every public utility, that has in service four or more workmen or operatives regularly in the same business, or in or about the same establishment under any contract of hire, express or implied, oral or written, except agricultural laborers and domestic servants; provided, that employers who have in service less than four employees shall have the right to come under the terms of this act by complying with the provisions thereof, and all the rules and regulations of the commission. The term 'regularly' as herein used shall include all employments, whether continuous throughout the year or for only a portion of the year. It means all employments in the usual course of the trade, business, profession or occupation of an employer."

Section 51 defines what employees come within the provisions of the act.

Section 52a provides:

"If a workman receives personal injury by accident arising out of and in the course of his employment, his employer, or the insurance carrier shall pay compensation in the amounts and to the person or persons hereinafter specified."

Section 53 reads as follows:

"Employers, but not including municipal bodies, shall secure compensation to their employees in one of the following ways: (1) By insuring and keeping insured the payment of such compensation with the 'state insurance fund; or (2) by insuring and keeping insured the payment of such compensation with any stock corporation or mutual association authorized to transact the business of workmen's compensation insurance in the state; or (3) by furnishing to the commission satisfactory proof of financial ability to pay direct the compensation in the amount and manner and when due as provided for in this act. In the latter case the commission may in its discretion require the deposit of acceptable security, indemnity, or bond to secure the payment of compensation liabilities as they are incured.

"All stock corporations or mutual associations transacting the business of workmen's compensation insurance in this state under the terms of subdivision 2 of this section shall be subject to the rules and regulations of the commission with respect to rates to be charged, and methods of compensation to be used."

Section 54 provides:

"If the insurance so effected is not with the 'state insurance fund' the employer shall forthwith file with the commission in form prescribed by it a notice of his insurance, together with a copy of the contract or policy of insurance."

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