77 Ind. App. 394 | Ind. Ct. App. | 1922
This action is based on the alleged negligence of appellant, which it is claimed caused the death of appellee’s decedent. The complaint is in two
“Section 2. From and after the taking eifect of this act, every employer and every employe, except as herein stated, shall be presumed to have accepted the provisions of this act * * * unless he shall have given prior to any accident resulting in injury or death notice to the contrary in the manner herein provided. This act shall not apply to railroad employes engaged in train service.” Acts 1917 p. 673.
“Sec. 3. * * * The notice of exemption * * * shall be given thirty days prior to any accident resulting in injury or death. * * * The notice shall be in writing or print in a substantial form prescribed by the Industrial Board, and shall be given by the employer by posting the same in a conspicuous place in the plant, shop, office, room or place where the employe is employed or by serving it personally upon him; * * * a copy of the notice in prescribed form shall also be filed with the Industrial Board.” Acts 1915 p. 392, supra.
“Sec. 4. Every contract of service between any employer and employe covered by this act, * * * shall be presumed to have been made subject to the provisions of this act; unless either party shall give notice, as provided in section 3, to the other party to such contract that the provisions of this act other than sections 10, 11 and 67 are not intended to apply.” Acts 1915 p. 392, supra.
Instructions Nos. 3,-5 and 8 given at the request of appellee, are clearly erroneous in the following particulars : No. 3 authorized a recovery, although the jury found that appellee’s decedent was appellant’s vice-principal in making the repairs in question, and received his
The several errors committed by the court in instructing the jury would require a reversal of the judgment, even if it could be said that proper proof had been made that appellant had rejected the provisions of the Workmen’s Compensation Act, supra, as alleged. For the reasons stated the judgment is reversed'with instructions to sustain appellant’s motion for a new trial and for further proceedings consistent with this opinion.