R ZURICH GENERAL ACCIDENT & LIABILITY INS. CO. v. BOWERS Et al. (Supreme Court of Wisconsin. March 9, 1920.) 176 Northwestern Reporter 772. MASTER AND SERVANT EVIDENCE INSUFFICIENT UNDER In an action on an assigned claim for compensation under St. 1917, §§ 2394-3 to 2394-31, for death of an employee by fall of steam coils, while helping defendant doing work for employer, proof held insufficient to carry the case to the jury upon theory that under the rule of res ipsa loquitur the tipping of the coil in itself showed that the moving of it by defendant's employee in charge with a pinch bar was negligence,in absence of a showing that the manner in which he applied the bar indicated a want of care, or that the tipping may not have been purely ac cidental, or that the fall was not due to the negligence of deceased. (For other cases, see Master and Servant, Dec. Dig. § 4091/2, New, vol. 7A Key-No. Series.) Appeal from Circuit Court, Milwaukee County; Gustave G. Gehiz, Action by the Zurich General Accident & Liability Insurance Company against Arthur F. Bowers and another. Judgment for defendant, and plaintiff appeals. Affirmed. This action was brought by plaintiff against defendants to recover the sum of $10.000 for alleged negligence. The complaint alleges that the Idefendants were engaged in the business of steam fitting in the city of Milwaukee, doing business under the name of the Industrial Heating & for the American Malting Company of the same city, moving steam coils Engineering Company; that on June 21, 1917, they were engaged in work for the purpose of putting in a new foundation; that the servants of defendants while engaged in this task called for a helper from the Amerito assist the servants of defendants in their work; that this Valentine Jank received his instructions from a vice principal of defendant, George incident to the work at hand; that Gerlach negligently caused the coils to slip and fall onto Jank through his negligent manner of applying the pinch bar to move the coil on the I-beam on which it rested and on which being moved; that Jank was struck and killed by one of the coils defendants' servants and Jank were moving. it was which The complaint further alleges that Alma Jank, widow of the deIceased, presented a claim for compensation under sections 23943 to 2394-31. The claim was assigned to the American Malting Com and from it to the Zurich General Accident & Liability Insurance. the injury to Jank, was the employee or vice principal of the defendants, pany. Defendants' answer denied that George A. Gerlach, at the time of the injuries to Jank hired by the American Malting Company from the and alleges that Gerlach, with an assistant or helper, was at the time of defendants by the hour to do such work and perform it in such anner as the American Malting Company might direct. The defendants deny Ideath of Jank. The answer also sets forth the assumption of risk any negligence of Gerlach or their employees or agents which caused the defense. as a At the close of the trial defendants moved the court to instruct the jury to return a verdict for the defendant. This motion was granted, and judgment entered accordingly. Appeal is taken from such judgment. lant. Joseph B. Doe and Walter L. Gold, both of Milwaukee, for appel Edward W. Spencer, of Milwaukee, for respondents. SIEBECKER, J. (after stating the facts as above). The evidence is clear that the defendants were conducting a business of industrial heating and engineering, and that at the request of the American Malting Company they sent Gerlach, one of their employes, to repair the foundation of some steam coils at the malting company's plant. The facts show that this repair work was undertaken by defendants, and that their agents and employes had full charge of the work, and that Gerlach as their employe had control thereof for defendants. The evidence is without dispute that Gerlach, before commencing to move the steam coils preparatory to making the repairs on the floor, informed Jank respecting his duties in helping to move the coils. It is also plain that any danger incident to the operation of moving the coils from their tipping over must have been obvious to Jank, as well as to the others engaged in this task. We find nothing in the case to sustain a claim that the injury to Jank resulting in his death was proximately caused by the negligence of Gerlach in failing to warn or instruct him as to the dangers incident to the tipping of the coils. The main controversy between the parties centers on the claim that the court erred in holding that there is no evidence in the case tending to show that Gerlach negligently applied force at the base of the coils by means of a pinch bar for the purpose of moving them along and off from the I-beams to rollers. The second section of the coil which was thus being moved at the time of the accident is described as being composed of five rows of coils, four pipes to each coil, from 25 to 30 coils in each row, which were close together. The weight of each section, including its base, is estimated at from 1,400 to 2,000 pounds. They rested on I-beams which were somewhat out of level, so as to cause the coils to slant westward about 10 degrees. Gerlach, who was in charge of the moving, used the pinch bar alternately on the north and south ends, applying pressure to the bar and pinched the coil along the I-beams toward the west. Fewings and Jank stood at the north and south ends of the coils, holding them steady and keeping them from wobbling. After Gerlach had pinched and moved the coil on the north end the second time, and had stepped around the end near the brick wall to go to the south end, the coil began to tip westward, and continued to do so, and fell over; it caught Jank and inflicted the fatal injuries. It is urged that the evidence tends to show that the fall of the coil is prima facie evidence that the force last applied by Gerlach with the pinch bar was done in a negligent manner and hence was the proximate cause of the accident. The testimony does not show that Gerlach used the pinch bar in a way different from the way it had been used by him theretofore, that the manner of handling the pinch bar was dangerous, or that he applied pressure in a manner different from the usual way, or that he performed this operation in these or other respects in a negligent manner, unless it can be said that the falling of the coil was due to the negligent manner in which Gerlach was using, and operating the pinch bar to move the coil on the I-beams. An examination of all the facts and circumstances of the case fails to disclose affirmatively that Gerlach negligently handled the pinch bar, or applied force thereon to accomplish the moving of the coil, aside from the fact that the coil tipped. In the light of the conditions and circumstances under which this moving operation was being conducted, can it be said that the tipping is proof of the alleged negligence on the part of Gerlach? This or from we think cannot be said, for the reason that there is nothing disclosed in the manner the operation was performed to indicate a want of care, and it is also manifest that the coil may have tipped for want of having been properly held by Jank or kept from wobbling by him, his failure to keep it steady in an upright position; nor do the facts and circumstances shown exclude the conclusion that the tipping of the coil may have been purely accident and independent of what Gerlach did with the pinch bar. In the light of this state of proof of the case it cannot be held under the rule of res ipsa loquitur that the tipping of the coil in itself shows that the moving of it by Gerlach with the pinch bar establishes actionable negligence on his part. The proximate cause of the tipping of the coil is shrouded in mys tery and speculation, and the plaintiff has not established the alleged cause of action. Hansen v. Mil. Coke & Gas Co., 155 Wis. 235, 144 N. W. 289; Hotchkiss v. Green Bay & Western Ry. Co., 153 Wis. 340, 141 N. W. 231; Stock v. Kern, 142 Wis. 219, 125 N. W. 447. The judgment appealed from is affirmed. Winslow, C. J., and Kerwin, J., took no part. TRAVELERS' INS. CO. et al. v. PRINCE LINE, Limited, et al. (United States District Court, S. D. New York. January 5, 1920.) 262 Federal Reporter 841. ADMIRALTY-STATE CANNOT CREATE MARITIME CAUSE OF ACTION BY WORKMEN'S COMPENSATION ACT PROVIDING FOR ASSIGNMENT OF RIGHTS OF INJURED EMPLOYEE. An assignment under Workmen's Compensation Act N. Y. (Consol. Laws, c. 67) § 29, of a claim against a third person for death or injury of a workman on payment of compensation under the act by an insurer, held not to confer on the assignee a right of action under the maritime law. (For other cases, see Admiralty, Dec. Dig. § 1.) At Law. Action by the Travevlers' Insurance Company and the Associated Operating Company against the Prince Line. Limited, and the Asiatic Steamship Company. On demurrer to complaint. Demurrer sustained. Amos H. Stephens, of New York City (William L. O'Brion, of New York City, of counsel), for defendants. Kirlin. Woolsey & Hickox, of New York City (Cletus Keating and V. S. Jones, both of New York City, of Counsel), for defendants. MAYER, D. J. The amended complaint, to which the demurrer is interposed, alleges that one Patterson, a stevedore employed by the plaintiff Associated Operating Company, was killed on October 22, 1914, by the negligence of the defendants while working on the steamship Chinese Prince, then lying in navigable waters; that the dependents of Patterson filed an election to take compensation under the New York state Compensation Law (Consol Laws, c. 67), and that the plaintiff Travelers' Insurance Company, the insurer of Associated Operating Company, pursuant to the provisions of the state Compensation Law, paid compensation to dependents of Patterson and received from the dependents an assignment of their cause of action. A copy of the assignment is attached to the complaint and states that it is in pursuance of the New York state Compensation Law. The theory of plaintiffs is that the action does not seek to enforce a liability created by the Workmen's Compensation Act to pay compensation without regard to fault, but the liability is predicated on the violation by defendants of an obligation imposed by the general maritime law, to wit, to have the ship and its appliances in safe condition when turned over to the stevedores to load. In this connection, the plaintiffs contend that section 29 of the Workmen's Compensation Law referred to in the complaint, which is the section under which the assignment to the plaintiffs was executed, created a cause of action of which plaintiffs may avail. At the time when the cause of action accrued, arising out of Patterson's death, the state of New York was without power to legislate regarding maritime contracts Southern Pacific Co. v. Jensen, 244 U. S. 205. 37 Sup. Ct. 524, 61 L. Ed 1086. L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. The only possible theory upon which plaintiffs could recover would be if the state statute created an assignable cause of action irrespective of and unrelated to the Workmen's Compensation Act. A mere reading of the statute demonstrates that its whole machinery was connected with the carrying out of the Workmen's Compensation Act and that the assign ment was in relation thereto. When, therefore, plaintiffs were out of Vol. V-Comp. 57. court because of the Jensen Case, their position was not helped by the [June, assignment executed under and by virtue of section 29 of the Workmen's Compensation Act. That section reads as follows: "Sec. 29. If an employe entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employe, or in case of death, his dependents, shall, before any suit or any award under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against such other. Such elections shall be evidenced in such manner as the commission may [by] rule or regulation prescribe. If such injured employe, or in case of death, the dependents, elect to take compensation under this chapter, the awarding of compensation shall operate as an assignment of the cause of action against such other to the State for the benefit of the state insurance fund, if compensation be payable there. from, and otherwise to the person, association, corporation, or insurance carrier liable for the payment of such compensation, and if he elect to proceed against such other, the state insurance fund, person, association, corporation, or insurance carrier as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by the chapter for such case. the state may be prosecuted or compromised by the commission. promise of any such cause of action by the employe or his dependents Such a cause of action assigned to at an amount less than the compensation provided for by this chapter shall A com be made only with the written approval of the commission, if the deficiency of compensation would be payable from the state insurance fund, and otherwise with the written approval of the person, association, corporation, or insurance carrier liable to pay the same. ploye is killed by the negligence or wrong of another not in the same Wherever an em employ and the dependents of such employe entitled to compensation under the chapter are minors, such election to take compensation and the assignment of the cause of action against such other and such notice of minor or shall be made on behalf of such minor by a parent of minor, or by his or her duly appointed guardian, as the commission may such determine by rule in each case.' such convincing, and it seems to me entirely plain that the demurrer must be The argument of learned counsel for plaintiffs is ingenious, but not sustained, and as a consequence that the complaint must be dismissed. ROHDE v. GRANT SMITH-PORTER SHIP CO. (No. L-8405.) (United States District Court, D. Oregon. January 26, 1920.) 263 Federal Reporter 204. 1. ADMIRALTY-REMEDY GIVEN BY WORKMEN'S COM PENSA TION ACT NOT EXCLUSIVE. Under Judicial Code, §§ 24 (3), 256 (3), vesting in the federal courts exclusive jurisdiction of civil causes of admirality, and maritime jurisdiction, as amended by Act Oct. 6, 1917, §§ 1, 2 (Comp. St. 1918, Comp St. Ann. Supp. 1919, §§ 991 [3]. 1233), by adding the provision * * * **saving to claimants the rights to remedies under the workmen's com pensation law of any state," the remedy given by such a law is not ex. Iclusive of that in the admiralty courts, but the suitor has his election. (For other cases, see Admiralty, Dec. Dig. § 2.) |