Was this award contrary to law? The answer to this question depends upon the construction to be given to that part of section 37 of the Workmen's Compensation Act, relating to compensation to be awarded to dependents partially dependent. That part of said section which is material to this question now under consideration reads as follows (Acts 1919, pp. 164, 165): "If the employee leaves dependents only partially dependent upon his earnings for support at the time of his injury, the weekly compensation to those so dependent shall be in the same proportion to the weekly compensation of persons wholly dependent as the average amount contributed weekly by the deceased to such partial dependent bears to his average weekly wages at the time of the injury.” The statute here gives us the rule for determining the amount of compensation to be awarded to such dependents. Stated in the form of a problem in proportion, we have: Compensation to be awarded partial dependents awarded wholly dependents tial dependents Average weekly wage ; Compensation to be :: Average amount contributed to par The Industrial Board found that the average weekly wage was in excess of $24, thus fixing the fourth term of the above proportion. The law fixes the amount of the award to the "wholly dependents" at 55 per cent. of this amount, thus giving us $13.20 as the second term in the above problem. But before the said problem can be solved it is necessary that another term in said proportion be known, the third, before we can determine the amount of compensation to be awarded. As the Board made an award of $13.20 per week, we know, as a simple matter of arithmetic, that they fixed the third term in said proportion at $24 and stated the proposition thus; X : $13.20 :: $24.00 : $24.00 This they presumably did on the basis that, as the average weekly wage as a basis for fixing the award was $24, and as the deceased contributed all his wages to appellees, he therefore contributed at least $24 per week to his dependents. If the term "weekly wage" and "average amount contributed weekly" by the deceased are both to be measured and fixed by the same standard then a correct result was reached. In section 76 of said act supra, the term "average weekly wage" is defined. Its meaning is technical; the statute fixes it. But because the technical average weekly wage is in excess of $24 it does not necessarily follow, though all earnings may have been contributed to the dependents, that such contributions was actually in excess of $24 per week. It is our opinion that the words "average amount contribution weekly," as used in the said section 37, were used in their ordinary, and not in the technical, sense; that the "amount contributed weekly" as used therein means the amount actual, rather than technical. With this construction placed upon said section, it became necessary for said Board in this case to determine the average amount actually contributed by said decedent to his said dependents. This is the necessary third term of said proportion which must be known before the first term thereof can be rightly determined. The record before us shows without contradiction that during the year previous to the time of his death, which was the period of his employment with appellant, the deceased had earned, in the employment of appellant, the sum of $797.74, all of which he contributed to the support of appellees, as partial dependents. This furnished to the Industrial Board the data from which said third term could have been duly ascertained, from which they could have determined the average amount actually contributed. 24 Vol. VIII-Comp. It therefore follows that the award of said Industrial Board is contrary to law. The award of the Industrial Board is therefore reversed, and this cause is remanded to said Board, with directions to set aside the said award in this case, and for further proceedings. JACKSON HILL COAL & COKE CO. v. McDANIEL (No. 10711.) (Appellate Court of Indiana, Division No. 1. June 8, 1921.) 131 Northeastern Reporter, 408. 1. MASTER AND SERVANT CONTRIBUTORY NEGLIGENCE NO DEFENSE WHERE EMPLOYER REJECTED COMPENSATION ACT. A coal mine operator who had rejected Workmen's Compensation Act, §§ 11 and 12, is thereby debarred from defending an action for injuries to an employee on the ground that the employee's negligence contributed to his injury. (For other cases, see Master and Servant, Dec. Dig. § 356.) 4. MASTER AND SERVANT-MINER'S CONTRIBUTORY NEGLIGENCE NO DEFENSE UNDER COMPENSATION ACT. The failure of a miner, who was instructed to clean up the loose rock in an entry and to take down a loose piece of slate from the roof under which he was working, was at most contributory negligence on his part, and does not defeat his recovery where his employer had rejected the Workmen's Compensation Act. (For other cases, see Master and Servant, Dec. Dig. § 356.) Appeal from Circuit Court, Sullivan County; Wm. H. Bridewell, Judge. Action by Charley L. McDaniel against the Jackson Hill Coal & Coke Company. Judgment for plaintiff, and defendant appeals. firmed. Af Beasley, Douthitt, Crawford & Beasley, of Terre Haute, and Hays & Hays, of Sullivan, for appellant. George W. Wells, of Terre Haute, and Lindley & Bedwell, of Sullivan, for appellee. ENLOE, C. J. This was an action by appellee to recover damages for personal injuries alleged to have been sustained by appellee while at work as an employee of appellant, in what is known as the No. 4 mine of appellant, near the town of Shelburn. The issue was formed by a complaint in one paragraph and an answer thereto in general denial, and, as thus formed, was submitted to the jury for trial, which resulted in a verdict in favor of appellee, upon which judgment was rendered, and from which judgment this appeal is prosecuted. The error assigned is the overruling of appellant's motion for a new trial. The appellee, at the time he received the injuries for which this suit was brought, was working in the said mine of appellant as a "jerry man." He was working at day work, and his duties under his said employment, as testified to by himself and other witnesses on the trial hereof were to put cars on the track if they should get off; to remove any rock that might fall in said mine; to timber around the machine when that was necessary; to timber the entry, if that was necessary; to take down any loose rock overhead, if discovered by him, and it was necessary; and to get timbers, when necessary, and prop up loose slate. The complaint charged, among others, specific acts of negligence as follows, viz.: (1) Failure of the appellant company to keep constantly on hands, at appellee's working place, a sufficient supply of caps, props, crossbars, and timbers of proper length and size, so that said working place could have been properly secured and timbered and made safe; (2) failure of the mine boss to visit and examine said entry and working place at least every alternate day; (3) failure of the mine boss to examine and see that said entry and working place was properly secured by props, caps, crossbars, etc.; (4) failure of the mine boss to see that a sufficient supply of caps, props, crossbars, and timbers of proper length and size were always on hand when needed at said working place; (5) failure of the appellant to notify appellee of the unsafe condition of said working place; (6) failure to see that no one entered said unsafe working place, while so unsafe, except for the purpose of making the same safe; (7) permitting said entry and working place to be and remain, for more than two weeks, and at a time when the roof of the same was weak, dangerous, unsafe, loose, and liable to fall, to be without the necessary caps, props, crossbars and timbers; (8) negligence of the mine boss in failing and refusing, for more than four days prior to the time of appellee's injury, to visit said entry and working place, and to examine and see that said entry and the roof thereof was securely timbered and propped, and the safety of said place assured. On the day in question, and just prior to the time of the accident, the appellee had been working, taking up some loose rock, and had stopped for a few moments while some others, employees of appellant, loaded a car with coal which had been shot down the evening before, and which was then lying in the entry at practically the place where the appellee was taking up said stone. While waiting for this coal to be loaded the appellee was "sitting on his heels," at the side of the entry, when a large piece of slate fell from the roof of the entry, the edge of which slate struck and injured him. The appellant first insists that the verdict is not sustained by sufficient evidence, and is contrary to law. It insists that on the facts as shown the appellee was not entitled to a verdict in his favor; that under the facts shown appellant did not owe the appellee the duty of furnishing him a safe place to work; that the rule as to safe place has no application, under the facts of this case, the appellee being a "jerryman." It appears from the record in this case that the appellee at the time he was injured was working in what was designated as the "eighteenth entry east." This entry had at that time been driven eastward for a distance of 80 or 90 feet, and the miners were preparing to cut a breakthrough, so that they might better obtain air. The coal to a depth of about five feet had been drilled and shot from the face of this entry, presumably the day or evening before, and was then lying on the floor of the entry and extended back from the face for a distance, given by several witnesses, of 25 feet. There is also evidence that there were no props set in this entry to support the roof; that the roof was full of slips; that the roof was bad all along the entry; that the mine boss had been told, two days before the accident, that some of this rock was liable to fall; that the easterly edge of the rock that fell was about 8 feet from the face of the coal; that there was not in this entry any breakthrough, and the miners had to pass under this bad roof to get to their work at the face of the coal; that there were no props on hand at the working place of the miners in this entry, to prop said roof; that the mine boss had not been in this entry to inspect it for two weeks before the accident. It also appears that on the day he was injured the appellee had been directed to take up and remove some stone which had fallen from the roof in said entry, and while at said work suffered the injuries of which he now complains; that for several days men had been at work daily in this entry, driving the face of the same about 5 feet per day. [1] It is first insisted that appellee was injured as a result of his own negligence in sitting down under the rock that fell and injured him. This defense the appellant is debarred from making, having rejected the Workmen's Compensation Act (Acts 1915, p. 392, §§ 11 and 12). [2] Appellant also insists that appellee was injured by one of the assumed risks of his employment, and cites a number of authorities to sustain that proposition. The authorities cited, however, are not controlling under the facts disclosed by the evidence in this case. If it should be conceded that appellee did assume the usual risks and dangers incidental to the place of his employment, he certainly did not assume the added dangers consequent upon the failure of appellant to do its plain statutory duty. Noe v. Coal Co., 207 Ill. App. 615; Smith v. Stover Mfg. Co., 205 Ill. App. 169; Strom v. Postal Tel. Co., 200 Ill. App. 431. Appellant next complains of the action of the court in giving certain instructions. It objects to instructions numbered 7, 9, 13, 14, 15, and 16, given by the court of its own motion and to the refusal of the court to give instructions numbered 4 and 19, tendered by the appellant. [3] Appellant says of No. 7 supra: "It was misleading because it authorized a recovery, on the negligence pleaded in the complaint. This charge of negligence was insufficient, in that it omitted a vital element of the statute limiting the requirement of the mine boss to visit the working places every alternate day, when the miners are or should be at work.' Appellant also says of said instruction: "This charge was insufficient as pleaded, because it omits that portion of the statute which requires a visit on every alternate day," etc. It also says: "Said instruction authorized a recovery upon an insufficient charge of negligence." The charge of negligence referred to is based upon the provisions of section 8580, Burns' 1914, which so far as material hereto is as follows: * "The mine boss shall visit and examine every working place in the mine, at least every alternate day, and shall examine and see that each and every working place is properly secured by timbering and that the safety of the mine is assured. He shall see that a sufficient supply of timbers is always on hand at the miner's working place. He shall also see that all loose coal, slate, and rock overhead wherein miners have to travel to and from their work, are taken down or carefully secured. Whenever such mine boss shall have an unsafe place reported to him, he shall order and direct that the same be placed in a safe condition; and until such is done no person shall enter such unsafe place except for the purpose of making it safe. As soon as such unsafe place has been repaired to the approval of said mine boss he shall then give permission for the men to return to work therein, but no person shall return to work therein until such repairs have been made and permission given. * * * * * One of the allegations of negligence in the complaint was: "That defendant carelessly and negligently failed and refused by its mine boss to visit said entry and working place of plaintiff aforesaid for more than four days prior to plaintiff's injury." (Our Italics.) This charge in the complaint was much broader than the statute, and it necesarily follows that, if the mine boss had not visited said working place for more than four days, he did not visit such working place at least each alternate day. We certainly therefore conclude that appellant was not harmed by said instruction. As to this charge of negligence, it was more favorable to appellant than it had a right to demand. [4] It is next urged that the court erred in giving its ninth and sixteenth instructions. It is insisted that said sixteenth instruction withdrew from the jury the question of whether said rock which fell and injured appellee could have been taken down and the place thus made safe. This argument proceeds upon the theory that, if said rock could have been taken down, it was the business of appellee to do so, and that therefore the issue of the negligence of appellee in this matter was before the court. Granting that said rock could have been taken down, and the place thus rendered safe and that it was the duty of appellee to take down said rock yet his failure to take the same down was merely, at most, contributory negligence, of which appellant cannot avail itself. As applied to the issues and the evidence, we see nothing erroneous in either of said instructions. Instructions 13 and 14 are also objected to, as withdrawing from the jury the question of appellee's negligence and his assumption of risk. What we have heretofore said disposes of this contention also. Instruction 15 was based upon the duty of appellant to keep constantly on hand at the working place of the miners a sufficient supply of timbers, as required by section 8580, supra, and was a correct statement of the law. We have already held that the complaint contained a sufficient charge of negligence in regard to the failure of the mine boss to visit the working places in said mine, and this holding disposes of appellant's contention as to its requested instructions Nos. 4 and 19. The court did not err in refusing said instructions. [5] Appellant finally urges that the court erred in sustaining an objection to a question propounded to appellee on cross-examination. He was asked if he could not easily have taken down props in some other rooms, and used them to prop the roof of the entry in question. This was entirely immaterial. The statute fixed and declared the duty resting upon appellant. If it failed to comply with the statute, it was guilty of negligence, as a matter of law. The statute required a supply of timbers to be kept always on hand at the working place of the miners and the fact that such timbers as might be needed could be obtained by the workmen from other abandoned rooms, by taking them down, would be no defense as against a positive failure of such mining company to perform said statutory duty. Taken as a whole, the instructions given were much more favorable to appellant than the law justifies. There is no error in this record of which it can complain. The judgment is affirmed. |