214 P. 82 | Mont. | 1923
delivered the opinion of the court.
In 1920 the Equity Coal Company. was operating a coal mine near Fromberg, in this state, under lease from J. C. McCarthy, the owner. In order to make the product of the mine available for market, a spur-track had been constructed from a point near Fromberg, on the Northern Pacific Laurel-Bridger main line, to a point near’ the mine, and on this spur-track a tipple had been erected in such manner that coal from the mine could be loaded directly into cars for transportation. The spur-track was constructed principally by McCarthy, though the rails and a small part of the labor were furnished by the Northern Pacific Bailway Company, which delivered empty cars to the coal company and transported the loaded ears from the property. This spur-track extended beyond and to the west of the tipple a distance sufficient to permit several empty cars to be set out at one time for use as needed. When empty cars were thus set out, they were held in place by the hand brakes. When a car was needed, the brakes would be released, the car moved to the tipple by gravity, the brakes set, the car loaded, the brakes released and the car moved to the east a distance sufficient to permit other cars to be loaded. The brakes would then be set, and the loaded ear would thereafter be removed by the railway company. From the time empty cars were set out west of the tipple until the loaded cars were removed from the point east of the tipple the railway company had nothing whatever to do with their movements. The coal company took possession of these empty ears, moved them successively to the tipple, loaded them, moved them to the east, and spotted them with the brakes set to await transportation by the railway company.
In its answer the railway company denied any negligence on its part and pleaded affirmatively that the coal company and plaintiff were operating under plan 3 of our-Workmen’s Compensation Act; that plaintiff was injured while engaged in the performance of his duties as an employee of the coal company and at the coal company’s plant.
In the reply it is admitted that plaintiff was employed by the coal company, and that he and the coal company were operating under plan 3 of the Workmen’s Compensation Act. It is alleged that plaintiff was injured in the vicinity of the coal company’s plant, but on the line of the railway company’s road and while handling one of its cars. The trial of the cause resulted in a verdict for plaintiff. A new trial was denied, and defendant appealed from the judgment.
It is admitted by the pleadings that plaintiff was injured while engaged in the performance of his duties as an employee of the coal company and there is not any conflict in the evidence so far as it reflects upon the single question of fact involved in this appeal, namely: Was plaintiff injured upon the premises or at the plant of his employer?
Senator McCarthy testified: “After it was constructed the track was used entirely by me while I was at the mine. * «= ® After it was constructed there it was used by me, and afterwards I leased the mine to the Equity Coal Company, and they used it for the same purpose. I know who had access to the spur-track and the use and control of it at the mine. It was the operators of the mine. I think there was a clause in the contract with the railway company whereby the railway company reserves the right to have other work done there, provided it does not interfere with our operations. * ° * The Northern Pacific did all the repairs on the track, as far as I know.”
A witness, Yochum, testified that some cars had been loaded on this spur-track from a small mine operated by Parrott and Doles, but that the loading of these cars did not interfere with the operations of the Equity Coal Company.
It is entirely beside the question that the railway company kept the spur-track in repair or that Parrott .and Doles loaded cars, on that track. The meaning of the phrase “at the plant of the employer” is not left in doubt. Section 6jj of our Compensation Act (sec. 2889, Rev. Codes 1921) declares: “ ‘The plant of the employer’ shall include the place of business of a third person while the employer has access to or control over such place of business for the purpose of carrying on his usual trade, business, or occupation.” The evidence discloses that the Equity Coal Company not only had access to that part of the spur-track where it placed its loaded cars, but that access to and use of such portion of the
After the record and briefs in this ease were filed, this court decided Bruce v. McAdoo, 65 Mont. 275, 211 Pac. 772. The facts in that case cannot be distinguished from the facts of the instant case. We there held that the provisions of our-statute for compensating an injured workman subject to the law are exclusive when the injuries are received at the plant of the employer.
Counsel for plaintiff earnestly urge a reconsideration of the question involved in the Bruce Case, upon the theory that that case was decided upon the authority of decided cases which arose under the Washington Compensation Act (Laws 1911, p. 345), and that our statute differs from the Washington Act to such an extent as to require a construction entirely different from that placed upon the Washington statute. In deciding the Bruce Case reference was made to decided eases arising under the Washington statute, and reliance was had upon the reasoning of those cases, but it is not true that, so far as applicable to a case of this character, there is any substantial difference between the Washington statute and our own. The Washington Act has been characterized as an “industrial insurance statute,” while our Act is usually referred to as a compensation statute. Whatever difference there is between the statutes, however, is one of form rather than substance, a difference in the method of administration, but not in matters which relate to the fundamental structure of the respective Acts. Our statute provides three distinct plans of administrative procedure:
(1) Under plan 1 an employer in any of the hazardous occupations enumerated, who can satisfy the administrative board of his financial ability to meet his obligations under
(2) Under plan 2 the employer insures his liability by a policy or policies of insurance, and when an accident occurs in his business a deposit is made with the treasurer of the board sufficient to meet the statutory demands.
(3) - Every employer operating under plan 3 contributes to a common fund a sum which is computed upon his pay-roll and graduated according to the risk of his business, and from this common fund compensation is made to injured employees as the occasion therefor arises.
The "Washington statute provides only one plan of operation, and in every essential particular it is not distinguishable from our plan 3 above, so that a construction of the Washington Act is peculiarly applicable to our Act whenever the controversy involves a workman operating under plan 3. The Washington statute is compulsory, while ours is elective, but whenever the employer and employee have come under our Act the rights and liabilities are not materially different from those enforced upon the employer and employee by the Washington statute.
But it is contended that the Washington Act contains provisions which necessarily deny to a workman, injured at the plant of his employer through the negligence of a third person, the right to maintain an action at law for damages against such third person, and that our statute does not contain like provisions. But again the difference is one of form rather than substance; a difference in phraseology rather than a difference in meaning. The provision in section 3 of the Washington Act which defines the term “workman” and designates the circumstances under which the injured employee may elect to sue the third party whose negligence occasions the injury “away from the plant of his employer” is substantially the same as the provision in section 6j of our Act (sec. 2863, Rev. Codes 1921). Particular emphasis is laid upon provisions in sections 1 and 5 of the Washington
We have then for consideration the question: Does our Act contain a provision equivalent to that found in section 5 of the Washington statute? Section 3 of our Act (see. 2839, Bev. Codes 1921) provides: “Where both the employer and employee have elected to come under this Act, the provisions of this Act shall be exclusive, and such election shall be held to be a surrender by such employer and such employee of their rights to any other method, form, or kind of compensation, or determination thereof, or to any other compensation, or kind of determination thereof, or cause of action, action at law, suit in equity, or statutory or common-law right or remedy, or proceeding whatever, for or on account of any personal injury to or death of such employee, except as such rights may be hereinafter specifically granted.”
It is difficult to conceive of language more comprehensive. If the employer and employee come under the Act, the provisions of the Act are exclusive. The single exception noted applies only where the injury occurs away from the plant of the employer (see. 2863, above). By coming under the Act. the employee surrenders the right to any other method of obtaining redress for his injuries received at the plant of his employer, and since this plaintiff and his employer, the Equity Coal Company, were operating under our Act, and plaintiff’s injuries were received at the plant of his employer, it follows that he was bound to seek redress under the Compensation Act, and may not maintain this action. It would be idle to reiterate the reasons which compel this conclusion. They are stated concisely in the opinion in the Bruce Case, and from the logic of that decision we think there cannot be an escape.
Reversed.
