79 Ind. App. 395 | Ind. Ct. App. | 1923
Action by appellee for money alleged to be'due from appellant which appellee was required to pay to the heirs of one Frank Elshire who was killed while in the employ of appellee as a line repairman.
A demurrer was sustained to the first paragraph of complaint and overruled to the second. This last ruling of the court and the action of the court in overruling appellant’s motion for a new trial are each assigned as error.
The second paragraph of complaint is in substance as follows: Appellee owns and operates a telephone exchange in the city of Wabash, Indiana, and has its principal office in the city of Wabash. Appellant owns and operates an electric lighting and power plant in said city. Appellee has constructed and maintained a system of telephone wires on poles along the streets and alleys of said city by the permission of the municipal authorities. Appellant has constructed and maintained along the streets and alleys of said city by permission of the municipal authorities a system of poles and wires for distributing electricity for lighting and power purposes. By agreement between said companies appellant had been permitted to connect certain of its wires with- and suspend the same from contact on certain of appellee’s poles in said city on which appellee also maintained and suspended its wires as a -part of its exchange. That on and prior to November 15, 1918, appellee had maintained a telephone pole with wires on Court street between Hill and Main streets in said city on which said
After answer in denial by appellant there was a trial by jury resulting in a verdict for appellee in the sum of $725, with a finding that appellee is entitled to recover of and from appellant all future payments which appellant shall be required to make to the dependents of Frank Elshire, deceased, under the award of the Industrial Board of Indiana.
Appellant, contending that the court erred in overruling its demurrer to the complaint, says that such complaint shows by its terms that the entire amount of the award has not been paid, that the action is for subrogation and .that it will not lie until the entire debt has been paid. Citing as authorities, Maryland Casualty Co. v. Cleveland, etc., R. Co. (1919), 74 Ind. App. 272, 124 N. E. 774; Miami County Bank v. State, ex rel.
Section 13 of the Workmen’s Compensation Act being §8020w Burns’ Supp. 1921, Acts 1919 p. 158, provides: “Whenever an injury or death, for which compensation is payable under this act, shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, * * * and if compensation is awarded and accepted under this act, the employer, having paid compensation or having become liable therefor, may collect in his own name or in the name of the injured employee or, in case of death, in the name of his dependents from the other person in whom the liability for damages exists, the compensation paid or payable to the injured employee or his dependents.” (Our italics.)
It clearly appears from this section of the statute that an employer against whom compensation has been awarded may recover, not only for the amount of money which he has already paid, but also that for which he has become legally liable. Bauer v. Rusetos & Co. (1923), 306 Ill. 602, 138 N. E. 206. There was no error in overruling appellant’s demurrer to the complaint.
Appellant contends that it was reversible error for the court to permit appellee to read in evidence the compensation agreement entered into between appellee company and the widow of Frank Elshire, deceased. This agreement was approved by the
Appellant presents no question with reference to the instructions for the reason that there was no proper memorandum endorsed upon each of such instructions, given or refused. The statute expressly requires that a writing on the margin of the instruction shall be a “Refused and excepted to” or “Given and excepted to” and that such memorandum shall be signed by the judge and dated. §560 Burns 1914, §535 R. S. 1881. A memorandum as follows: “Given November 12, 1921, Albert Ward” or “Refused November 12,1921, Albert Ward,” does not comply with this section of the statute. No error is presented with reference to said instructions for the further reason that appellant has failed to discuss them under points and authorities, or to cite any authorities pertaining to the same.
The evidence is sufficient to sustain the verdict, and the verdict is not contrary to law. Judgment affirmed.