Peterson v. Sorensen , 91 Utah 507 ( 1937 )

This is an action to recover damages for alleged injury based upon claimed negligence. The plaintiff, while in the employ of the defendant during December, 1928, claims to have been injured. The defendant was engaged in the retail furniture business in Salt Lake City. It is conceded that he regularly employed more than three men and was, therefore, subject to the provisions of the Workmen's Compensation Act (R.S. 1933, 42-1-1 et seq.). The defendant was not carrying compensation insurance as required by the act. Neither had he qualified as a self-insurer. Plaintiff alleges that on December 22, 1928, while he was in the course of his employment he stepped into an elevator shaft in the rear of defendant's premises, fell into the pit, and was injured. The elevator was located at the rear of the building. There were two doors making the elevator accessible, one from the north and the other from the south or the rear. There was a platform at the rear accessible from the rear door, the platform being about a foot from the level of the main floor of the building. The south or outside door was of the elevator or lift type. It was made of metal and slid down below the platform to permit entrance to the elevator from that side. When raised, the door closed the elevator from the outside and served to prevent possible fire from the outside getting into the elevator shaft. This door could be raised or lowered either from the platform or from the elevator if the elevator were brought to the level of the platform outside. In such position, the elevator floor would be one foot below the floor of the store.

This elevator served the defendant in moving furniture up to and down from the balcony to the ground floor of the premises used by defendant. It was also used by other occupants of the building above defendant's store over whom defendant had no control. On the evening of December 22d, after dark, a Mr. Murray and his wife went out of a door east of the elevator and called to plaintiff to close the door after them. Plaintiff closed the door from the inside and then went to the location of the elevator expecting to stand in the elevator and pull up the fire door at the rear. The elevator at that moment was at one of the floors above. It was dark and plaintiff did not notice that the elevator cage was not at the floor level and stepped into the shaft and fell about fifteen feet into the pit, resulting in injuries to his hips, arms, and feet. After recovery, plaintiff returned again to defendant's employ. He continued in this employment until discharged by defendant on August 27, 1932. Four days after his discharge and three years and eight months after his accident, plaintiff commenced this action. No claim is made for loss of time, medical or hospital bills, or impaired earning capacity.

This statement of facts is made for the purpose of indicating the background of the action, and although numerous errors are assigned, the matter reposes itself in two points only: (1) The question of the statute of limitations; and (2) errors assigned in certain of the instructions of the court. The question of the statute of limitations was raised both by demurrer to the complaint, which was overruled, and by answer. Defendant denied negligence in the premises, denied he had any duty with respect to the elevator, set up that other tenants of the building used the elevator and had moved it to the floor above, and alleged that plaintiff was injured by his own negligence and lack of care and that his injury was not incurred in the scope of his employment. Trial by jury resulted in a verdict for plaintiff, and defendant prosecutes this appeal.

Appellant assails the action of the trial court in overruling his demurrer and his plea in his answer that the action is barred by the statute of limitations. Appellant's position is that the liability is one created by statute and comes within the one-year limitation of subdivision (1) of section 6468, Comp. Laws Utah 1917, now section 104-2-26, subd. 1, R.S. Utah 1933. Respondent contends that the provisions of section 6474, Comp. Laws Utah 1917, now section 104-2-30, R.S. 1933, allowing a period of four years in which to bring an action for personal injury, apply, and the action being brought within that period is not barred. This raises the question as to whether the Workmen's Compensation Act includes within its provisions all cases in which the relation of master and servant or employer and employe exists and where more than three persons are regularly employed, without reference to the exceptions as to agricultural and domestic pursuits.

This court held in the case of Utah Consol. Min. Co. v.Industrial Comm., 57 Utah 279, 194 P. 657, 16 A.L.R. 458, that a proceeding under the Workmen's Compensation Act involves a liability created by statute and must be brought within one year. This decision has been consistently followed. That such is the position of the court, and that the act applies 1, 2 where the employer carries insurance, is definitely settled. The question here, however, is: Is such an employer who comes within the requirements and conditions of the act, except that he fails to carry insurance or qualify as a self-insurer, still within the terms of the statute? Or, put more broadly, has the Workmen's Compensation Act pre-empted the whole field where the relation of master and servant or employer and employe exists, except the specific exceptions relating to agricultural employment and domestic servants? It is contended that if an employer does not carry compensation insurance, he and his employes are denied the advantages provided by the statute and relieved from the liabilities of the act, and that they remain under their common-law rights and liabilities. That the liability of the employer for an injury to a servant, aside from the Workmen's Compensation Act, is not one created by statute, and that the one-year statute of limitations does not apply if it is a common-law action, needs no further discussion. The real question, therefore, is: Is the defendant within or without the exclusive provisions of the Workmen's Compensation Act? Section 42-1-40, R.S. 1933, formerly section 3110, Comp. Laws Utah 1917, provides who shall constitute employers subject to the provisions of the title in part as follows:

"(2) Every person, firm and private corporation, including every public utility, having in service three or more workmen or operatives regularly employed 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 three employees, and employers of agricultural laborers and domestic servants, shall have the right to come under the terms of this title by complying with the provisions thereof and the rules and regulations of the commission."

It is also provided by section 42-1-54, R.S. 1933, formerly section 3129, Comp. Laws 1917, relating to employers who shall fail to comply with the provision of section 42-1-44, R.S. 1933, as follows:

"Employers who shall fail to comply with the provisions of section 42-1-44 [relating to the requirement that employers carry insurance or qualify as self-insurers] shall not be entitled to the benefit of this title during the period of noncompliance, but shall be liable in a civil action to their employees for damages suffered by reason of personal injuries arising out of or in the course of employment caused by the wrongful act, neglect or default of the employer or any of the employer's officers, agents or employees, and also to the dependents or personal representatives of such employees where death results from such injuries. In any such action the defendant shall not avail himself of any of the following defenses: the defense of the fellow-servant rule, the defense of assumption of risk, or the defense of contributory negligence. Proof of the injury shall constitute prima facie evidence of negligence on the part of the employer and the burden shall be upon the employer to show freedom from negligence resulting in such injury. And such employers shall also be subject to the provisions of the section next succeeding."

The next succeeding section referred to is section 42-1-55, R.S. 1933, formerly section 3130, Comp. Laws 1917, and it provides:

"Any employee, whose employer has failed to comply with the provisions of section 42-1-44, who has been injured by accident arising out of or in the course of his employment, wheresoever such injury occurred, if the same was not purposely self-inflicted, or his dependents in case death has ensued, may, in lieu of proceeding against his employer by civil action in the courts as provided in the last preceding section, file his application with the commission for compensation in accordance with the terms of this title, and the commission shall hear and determine such application for compensation as in other cases; and the amount of compensation which the commission may ascertain and determine to be due to such injured employee, or his dependents in case death has ensued, shall be paid by such employer to the persons entitled thereto within ten days after receiving notice of the amount thereof as so fixed and determined by the commission."

This section gives to the employee of an employer who has failed to comply with the provisions of the Workmen's Compensation Act relating to insurance, an election. That is, he may either present his application for compensation to the Industrial Commission as in other industrial cases, or he may proceed "against his employer by civil action in the courts as provided in [section 42-1-54]." By that section the employer is liable to his employes in a civil action during the period of noncompliance for damages suffered by reason of personal injuries sustained in an accident arising out of or in the course of employment caused by the willful act or neglect or default of the employer or any of the employer's officers, agents, or employees. It appears to us that these provisions cover the same elements and were intended to save to the employee his common-law civil right of action against the employer. The employee, however, is given the further advantage in this civil action, in that the employer may not avail himself of the fellow-servant rule, the defense of assumption of risk, or the defense of contributory negligence.

The negligence charged in the complaint in this action is that the defendant failed to maintain any lights in and about the elevator shaft, with the result that the position of the cage in the shaft could not be seen, and, also, in permitting the easily sliding door of the elevator shaft to remain so that the shaft was open; that because of such negligence, 3 plaintiff, while in the course of his employment as heretofore indicated, walked into the shaft, with the results indicated. The complaint states facts sufficient to state a cause of action entitling plaintiff to relief at common law, and he therefore need not rely upon the provisions of the Workmen's Compensation or Industrial Act for the relief prayed. It is argued that the relation of master and servant was fundamentally altered, with the result that an action as known to the common law by the servant against the master for an injury sustained by the former no longer exists in this State. That such is the law when the master complies with the Workmen's Compensation Act in the matter of carrying insurance may be conceded. The injured employee is not, however, deprived of his common-law right of action against a noncomplying employer. The only provisions of our Industrial Act which need concern us in our view of the matter in hand are sections 42-1-44, 42-1-54, and 42-1-55, supra, and in addition section 42-1-57, R.S. 1933, the latter section providing as follows:

"The right to recover compensation pursuant to the provisions of this title for injuries sustained by an employee, whether resulting in death or not, shall be the exclusive remedy against the employer, except as in this title otherwise declared; provided, that where the injury is caused by the employer's willful misconduct and the act causing such injury is the personal act of the employer himself, or, if the employer is a partnership, of one of the partners, or if a corporation, of an elective officer or officers thereof, and such act indicates a willful disregard of the life, limb or bodily safety of employees, such injured employee or other person damaged may, at his option, either claim compensation under this title or maintain an action at law for damages. The term ``willful misconduct,' as employed in this section shall be construed to mean an act done knowingly and purposely with the direct object of injuring another."

In a number of cases wherein the provisions of a similar statute to that of section 42-1-54, formerly section 3129, Comp. Laws 1917, are discussed, the courts have used language indicating, without expressly so deciding, that the alternate remedy of civil suit is the common-law action for damages, notwithstanding the defendant is deprived of the defense of the fellow-servant rule, the defense of assumption of risk, and that of contributory negligence. In Fassig v. State, 95 Ohio St. 232,116 N.E. 104, 106, the court said:

"It will be observed that the employee of such an employer has two remedies, and he must elect which one he will pursue. He cannot have both. He may sue his employer, as at common law, and in that suit he is permitted to recover whatever damages he is able to show he has sustained; or he may, in lieu of such suit, apply to the commission for compensation under the act."

In American Chemical Co. v. Smith, 8 Ohio App. 361, the court refers to the statute and says it

"* * * takes away the defenses of the fellow-servant rule, contributory negligence and assumption of risk, but does not enlarge the basis for recovery on the grounds of negligence beyond what existed at common law, and the employer is only required to exercise ordinary care under all the circumstances of the case."

Similar language is used in Lindebauer v. Weiner, 94 Misc. 612,159 N.Y.S. 987, and Nadeau v. Caribou Water, Light Power Co., 118 Me. 325, 108 A. 190. Cases in Iowa are to the same effect where by statute the defendant, in addition to being deprived of the common-law defenses above mentioned, has the burden of disproving negligence. In Gay v. Hocking Coal Co.,184 Iowa 949, 169 N.W. 360, 362, is the following:

"Having rejected the act, defendant is liable in the same manner and to the same extent as it would have been had the compensation act never been enacted, except that, when sued by an employee for a personal injury arising out of and in the course of his employment, it will be presumed that the injury was caused by the employer's negligence and certain common-law defenses will not be available to him." See, also, Martin v. Chase,194 Iowa 407, 189 N.W. 958.

The case of State v. Hughes Oil Co., 58 N.D. 581,226 N.W. 586, cited by appellant, does not aid him. If anything, the case makes against his contention, although the case is not in point because of differences in statutes and the states of facts.

It will doubtless be conceded that unless relieved by the Industrial Act, the employer remains liable for his negligent injury of his employee. There is nothing in the language of section 42-1-57, supra, or elsewhere in the act, which expressly or by necessary implication deprives an employee of his common-law action against a noncomplying employer for 4, 5 injuries sustained by the former on account of the negligence of the latter. On the contrary, those provisions of the act which deprive the noncomplying defendant employer of the defenses of the fellow-servant rule, assumption of risk, and contributory negligence, and cast upon him the burden of showing freedom from negligence, are calculated to enlarge rather than to restrict the right of the employee to recover for injuries sustained by him on account of the negligence of the employer. If, in an action by an employee against a noncomplying employer, the former assume and successfully maintain all of the burdens of a common-law action necessary to recover judgment, it is clear that the employee would be entitled to a judgment against the employer notwithstanding the provisions of the Industrial Act. That is to say, the employee is not required to rely on the Industrial Act at all as a basis for recovery against a noncomplying employer. The essence of the cause of action alleged by plaintiff is that he was injured by defendant's negligence. The mere fact that the Industrial Act contains provisions which make it less burdensome for plaintiff to establish his claim and take from defendant certain defenses does not justify the conclusion that the cause of action is one created by statute. Moreover, the noncomplying employer "shall not be entitled to the benefit of this title during the period of noncompliance." Section 42-1-54. By pleading the bar of the one-year statute of limitation, the defendant seeks, contrary to the express provisions of the act, to avail himself of the act. This he may not do. We are of the opinion that this action is not barred by the one-year statute of limitation and that, therefore, the action should not be dismissed.

Appellant attacks a number of the instructions given to the jury. Instruction No. 5, which is so attacked, reads as follows:

"The law under which this action is brought makes the happening of such an accident as this prima facie evidence of negligence, and the burden is upon the defendant to show that he was free from negligence. If you believe from the evidence that the defendant was guilty of any negligence, no matter how slight, which in any manner contributed to the accident in question, then your verdict should be in favor of the plaintiff and against the defendant."

Objection was taken to the first sentence of the foregoing instruction as well as to the whole thereof, and the giving of the same is assigned as error. Appellant also assigns as error the failure and refusal of the court below to inform the jury of the acts of negligence relied upon by plaintiff. The law is well settled generally and in this jurisdiction 6-8 that a plaintiff must prevail if at all, upon the negligence charged. A jury may not award damages for negligence not charged, nor for charged negligence not sustained by proof. The jury should, by the instructions given, be confined to a consideration of the negligence which is charged and supported by proof. The failure to so limit the jury in its deliberations has been, by the uniform holding of this court, held to be prejudicial error. Fowkes v. J.I. CaseThreshing Mach. Co., 46 Utah 502, 151 P. 53; Kendall v.Fordham, 79 Utah 256, 9 P.2d 183; Industrial Comm. v.Wasatch Grading Co., 80 Utah 223, 14 P.2d 988. Nowhere in the instructions given to the jury in the instant case did the trial court inform the jury of the negligence charged against the defendant. The jury, in effect, was told in the instructions that it should find for the plaintiff if defendant was negligent in failing to maintain proper lights at and near the elevator shaft or in failing to keep the fire door up so as to prevent persons from walking into the shaft. Nowhere, however, in the instructions was the jury informed that to find a verdict for plaintiff it must find the defendant guilty of negligence in one or both of such particulars. On the contrary, instruction No. 5, heretofore quoted, clearly indicates that unless the defendant showed that he was free from all negligence, whether charged or not, no matter how slight, as long as it contributed to the accident in question, plaintiff was entitled to a verdict.

There is nothing in the Workmen's Compensation Act which justifies plaintiff in recovering either for negligence not charged, or for negligence charged but not proved. To so hold would lead to the destruction of one of the chief purposes of pleadings, namely, that of informing the 9, 10 adversary of what he is required to meet at the trial. Moreover, to inform the jury that the happening of the accident was prima facie evidence of negligence was calculated to confuse the jury and hence error.

We have a statute which provides that:

"Possession of property recently stolen, when the person in possession fails to make a satisfactory explanation, shall be deemed prima facie evidence of guilt." R.S. 1933, 103-36-1.

In the case of State v. Barretta, 47 Utah 479, 155 P. 343,346, this court in discussing what was meant by "prima facie" had this to say:

"Undoubtedly, the court has to do with questions of a prima facie case whenever it withholds from, or submits a case to, the jury. But that determination, like all questions of sufficiency of evidence, to warrant a conviction, is one of law and not of fact. When a court submits a case to a jury, the court necessarily determines that there is sufficient evidence to justify a conviction. The court cannot leave that question to a jury. To do so would be to make the jury judges of both the law and of the facts. So, when such a case as this is submitted to a jury, they have nothing to do with questions of what is or what is not, a prima facie case; nor are they required to make a finding in such respect. They, to convict, are required to find the accused guilty beyond a reasonable doubt. If they do not so find, they are required to acquit regardless of whether a prima facie case was made or not. Juries have only to do with questions of a prima facie case when there is a shifting of burden of proof. But here there was no shifting of burden, either of proof, or duty of going forward. The state at the start had the burden to establish beyond a reasonable doubt every essential allegation of the information, and that burden, without shifting, remained with the state throughout the entire case. So, when there is no shifting of burden of proof or duty of going forward, we see no good purpose, in the submission of a case, to inform the jury what constitutes a prima facie case. As well inform the jury on every submission of a case that the court is of the opinion that a prima facie case is made and the grounds upon which the opinion is based, and that therefore he submitted the case to them. We think a charge, that recent possession of stolen property when the party in possession failed to make a satisfactory explanation was prima facie evidence of guilt, may do harm by singling out and emphasizing particular evidence in a cause to the exclusion of other evidence which may be of equal or greater importance, and, without further explanation or direction, may tend to convey a meaning to the jury that when such enumerated particulars are shown the burden of proof is shifted to the accused, which, if not sustained by him, requires the verdict to be cast against him. Dobson v. State, 46 Neb. 250, 64 N.W. 956; Williams v.State, 60 Neb. 526, 83 N.W. 681; Van Straaten v. People,26 Colo. 184, 56 P. 905; McCoy v. State, 44 Tex. 616; State v.Bliss, 27 Wash. 463, 68 P. 87; State v. Sasseen,75 Mo. App. 197; State v. Lax, 71 N.J.L. 386, 59 A. 18. Of course, the jury, upon the matters alone which the statute declares is a prima facie case, may find the accused guilty, if they, upon such proof, are convinced beyond a reasonable doubt of his guilt. But just as certain is it that they, if not so convinced, are required to acquit him, though such matters may not even be disputed or contradicted by any evidence whatever. So we do not see what the question of a prima facie case has to do with the jury and think the charge ought not to have been given."

See, also, State v. Donovan, 77 Utah 343, 294 P. 1108.

These last cases are criminal and the instant case is civil; still, the doctrine there announced is applicable here.

The defendant attempted to show that he had paid plaintiff the sum of $12,000 since plaintiff received his injury. Error is assigned because such evidence was rejected. It appears from the plaintiff's evidence that he made an application to the Industrial Commission of Utah for compensation on account of his injury. It is not shown what became of 11 that application. Defendant makes no claim in his answer or otherwise that plaintiff's action is barred because of a proceeding had before the Industrial Commission or because of any money paid as compensation for the injury. If such a defense had been interposed, it may be that the evidence of payment would be proper. The offer made, however, seems to indicate that the money paid was for wages. As this action is not for the loss of wages, but one for damages on account of the injury, it is difficult to perceive how the rejected testimony was relevant to the question in issue. Under the present pleadings, the evidence as to the amount of money paid as wages was properly excluded.

Other errors are assigned, but as they are either without merit or are not likely to arise upon a new trial, no good purpose can be subserved by a discussion thereof.

The judgment of the lower court is reversed and a new trial granted, with costs on appeal to appellant.

ELIAS HANSEN, C.J., and FOLLAND, J., concur.