
    Landrum v. Middaugh.
    
      Workmen’s compensation—Employe accepting compensation cannot sue employees foreman for damages.
    
    An employe who has applied for and accepted compensation for an injury received in the course of his employment through the negligent act of his foreman, performed in the regular course of such foreman’s employment while both the employe and his foreman were working for an employer who had complied with the provisions of the Workmen’s Compensation Act, cannot thereafter maintain an action against his foreman to recover damages for his injury.
    (No. 20445
    Decided December 28, 1927.)
    Error to the Court of Appeals of Perry county.
    This case arises as an error proceeding to a judgment of the Court of Appeals of Perry county, which reversed a judgment rendered in the common pleas court in favor of the defendant, Frank Landrum, upon demurrer filed to the reply of David Middaugh, plaintiff below.
    The petition of Middaugh alleged:
    That “on and prior to the 24th day of August, 1923, the plaintiff and defendant were each employed in and about the plant of the Rush Creek Clay Company, located near Junction City, Perry county, Ohio; the defendant as boss or overseer, and the plaintiff as a common laborer under and subject to the orders and directions of the defendant.
    “That the machinery of said plant consisted in part of a conveyor connected with a dry pan in and about which heavy mullers, scrapers, and machínery revolve when in operation, for the purpose of crushing clay used in the manufacturing of drain tile.
    “That on the 24th day of August, 1923, a board was caught by the conveyor, and by it carried into the dry pan, thereby obstructing and interfering with the free operation of said machinery and plant.
    “That defendant caused said machinery to be stopped, and then and there ordered and directed plaintiff together with a fellow workman to assist him in taking said board from its lodgment in said dry pan aforesaid.
    “That plaintiff in obedience to said order and direction of the defendant then and there proceeded to a point at the side of said pan where said board was then lodged, and, after fully informing defendant of his purpose and intention, reached his left arm on and into and under said dry pan where said board was then lodged, when the defendant, without notice or warning, unlawfully, negligently, and carelessly started the machinery revolving in and under said dry pan, which instantly caught plaintiff’s arm aforesaid, crushing and lacerating the same until it had to be amputated at or near the shoulder.
    “That said injury to plaintiff was caused by the carelessness and negligence of the defendant in starting the machinery revolving in and under said dry pan, when he knew as aforesaid, and had reason to know that plaintiff had his arm in a place of danger; and that plaintiff was without fault or negligence on his part.”
    The prayer was for damages.
    
      The defendant, Landrum, in his first defense of the answer, which is not material for the purpose of this decision, admitted that the plaintiff had suffered injury by having his left arm caught in the machinery at the plant of the Rush Creek Clay Company, and denied every allegation of the petition not expressly admitted.
    The second defense raises the legal question involved herein, and is as follows:
    “The defendant, for a second defense to plaintiff’s petition says:
    “That the Rush Creek Clay Company is a corporation, organized under the laws of the state of Ohio, and that on the 24th day of August, 1923, the defendant was a stockholder in said corporation and was a foreman, boss, and overseer at the plant of said Rush Creek Clay Company near Junction City, Ohio, being the same plant referred to in plaintiff’s petition.
    “That on and prior to said 24th day of August, 1923, said the Rush Creek Clay Company had complied with all of the provisions and requirements of the Workmen’s Compensation Law of Ohio, and the industry of said corporation at said plant near Junction City, Ohio, had been classified by said Industrial Commission and the premiums to be paid by said corporation to the Industrial Commission for insurance had been fixed by said Industrial Commission, and all of said premiums had been fully paid by said corporation to said Industrial Commission of Ohio, and at that time all of the employes of said corporation at said plant, including the plaintiff, were covered by said industrial insurance.
    
      “That a short time after plaintiff was injured at said plant, to-wit, on August 31, 1923, the plaintiff applied to the Industrial Commission of Ohio for an award of compensation for the injuries so received by him on said 24th day of August, 1923. That on the 20th day of September, 1923, said Industrial Commission, after partially hearing the application of plaintiff, awarded the plaintiff the sum of $105, being an award of $15 per week for 7 weeks, and on the same date said Industrial Commission allowed to the undertaking firm of C. L. Chute Company the sum of $15 for ambulance hire in transporting plaintiff to his home after his injury.
    “Defendant further says:
    “That on the 11th day of September, 1923, plaintiff made application to said Industrial Commission of Ohio for an award in lump sum of $1,-300, with which to purchase a home in the suburbs of New Lexington, Ohio, and on the 20th day of November, 1923, said Industrial Commission awarded to said plaintiff said sum of $1,300 in a lump sum as part payment of the amount that he was to receive by reason of his injuries. And on said 20th day of November, 1923, said Industrial Commission awarded to said plaintiff the sum of $3,000 in full compensation for the injuries which he had received at the plant of the Rush Creek Clay Company on the 24th day of August, 1923.
    “That on the 1st day of December, 1923, the plaintiff made an application for an award in a lump sum of the balance of said $3,000 remaining after the payment of said $1,300 theretofore paid to him, as aforesaid, and on said 1st day of Decernber, 1923, said Industrial Commission paid to said plaintiff upon Ms said application tbe sum of $1,-454.38, being what said commission termed tbe present worth of the remaining portion of tbe original award made to plaintiff.
    “Defendant further says that said award of $3,-000, made by said Industrial Commission to plaintiff for tbe loss of bis arm, constituted tbe maximum amount of award that said Industrial Commission could make under tbe law for tbe loss of an arm.
    “Defendant further says that said plaintiff has been fully compensated by said Industrial Commission of Ohio for all tbe injuries received by him at the plant of said tbe Rush Creek Clay Company on tbe 24th day of August, 1923, and said plaintiff, by making bis said application to said Industrial Commission of Ohio for an award of compensation for Ms injuries so received at said plant, thereby waived any claim that be might have bad against said tbe Rush Creek Clay Company or this defendant by reason of said injuries; and by reason of the facts above pleaded plaintiff is barred from recovering any damages or compensation for bis said injuries from this defendant.”
    Tbe amended reply reads as follows:
    “Now comes tbe plaintiff, and for bis amended reply to tbe answer of tbe defendant herein admits that be received compensation in full from tbe Industrial Commission of Ohio, at-tbe times, in tbe amounts, and on account of tbe injury set out in answer herein, but denies that said compensation, so paid plaintiff by the Industrial Commission of Ohio, was in full of said damages so done plaintiff by this defendant.
    
      “Said plaintiff further denies that by receiving said compensation from the Industrial Commission of Ohio he waived his claim for damages set out in the petition herein, against this defendant.”
    Motion for judgment on the pleadings, which had been filed by defendant prior to the filing of the amended reply, was withdrawn, on leave being granted therefor, and the defendant demurred to the amended reply. The trial court sustained the demurrer to the reply and dismissed the plaintiff’s petition. It was this judgment in sustaining the demurrer and dismissing the petition which was reversed by the Court of Appeals. The case comes into this court on allowance of motion to certify the record.
    
      Messrs. Pyle c& McGonagle, for plaintiff in error.
    
      Mr. John W. Dugan, and Mr. J. E. Powell, for defendant in error.
   Allen, J.

It is the contention of the plaintiff in error that, since Middaugh applied to and accepted from the Industrial Commission compensation for his injury, he cannot maintain an action against his foreman to recover damages for the same injury. Landrum urges that, as foreman, he was acting within the course of his employment, and within the scope of his authority when the injury occurred, and that hence he does not hold the same position with reference to liability as if he had been an independent third party not connected with the industry, who willfully or negligently caused the injury. He does not contest the fact that there would be a liability pro tanto upon such independent third party; and indeed that question has been this day so decided in the case of the Ohio Public Service Co. v. Sharkey, Admr., ante, 586, 160 N. E., 687. It is in brief the contention of plaintiff in error that the employer and its officers and agents are all linked together for the purpose of fixing the liability of the employer to suits for damages, and that therefore they must be all linked together for the purpose of establishing nonliability, and that the officer, agent, employe, or servant is as much protected from suits for damages as is the employer under such facts as set out herein.

If there had been no compensation law, Middaugh could have sued either the Rush Creek Clay Company or Landrum; but he would have been required to elect which one to sue. French, Admr., v. Central Construction Co., 76 Ohio St., 509, 81 N. E., 751, 12 L. R. A. (N. S.), 669.

Plaintiff in error claims that, since Middaugh, prior to the enactment of the Workmen’s Compensation Act (Gen. Code, Sections 1465-37 to 1465-108), would have been compelled to elect whether he would sue his employer or the foreman, under the doctrine of the French case, supra, every employe in an industry covered by the Compensation Act, in a case where an injured coemploye has accepted compensation under the act, is immune from suits for damages brought by coemployes for acts of mere negligence claimed to have caused the same injury for which compensation was accepted, if the employe alleged to have caused the injury was at the time acting within the scope of his employment.

It has been held, under specific statutory enactments giving injured employes a right of action for damages against third persons whose negligence causes the injury, that a negligent employe is such a third person and is liable, irrespective of the right of compensation from the employer under the statute. Churchill v. Stephens, 91 N. J. Law, 195, 102 A., 657; Lees v. Dunkerly Bros., 103 L. T. Reports, N. S. (England), 467. The words, “some person other than the employer,” in a similar statute, have been recently held, in Webster v. Stewart, 210 Mich., 13, 177 N. W., 230, to include the vice president of the employer corporation. However, since this state has no statute upon the question, we are remitted to deciding .the case upon the general principles of law.

Plaintiff in error urges that the fact that the foreman was a stockholder in the Rush Creek Clay Company exonerates him from liability. With this contention we cannot agree. The corporation has an existence independent of its stockholders, and hence the fact that the corporation is immune from suit because of acceptance of compensation by Middaugh does not avail Landrum merely because of his ownership of stock in the corporation.

Is the foreman, however, so merged with the employer, when acting within the scope of his employment, that the immunity of the employer from liability under the Workmen’s Compensation Act also renders the foreman immune?

That he is not merged with the employer in performing certain acts is evident. If the foreman willfully, maliciously, or wantonly, in pursuance of his own unlawful purpose, injures a fellow employe, his act is not the act of the employer. But his acts done in lawful furtherance of the employer’s business, under express authority of the employer, are the employer’s acts. It is upon this theory that the employer is liable for the acts of the foreman done pursuant to and in the course of his employment. Qui facit per alium facit per se-. The acts which the foreman does in the course of his employment, without malice, wantonness, or willful intent, he would not do unless expressly authorized and ordered by his employer to do them. Moreover, the employe is under the complete control and direction of his employer in doing such acts. This fact distinguishes the instant case from the case of the Trumbull Cliffs Furnace Co. v. Shachovshy, 111 Ohio St., 791, 146 N. E., 306. In that case, the act which this court held constituted a basis for liability against the third person at the suit of an injured workman, even though the injured workman had accepted compensation under the Workmen’s Compensation Act, was the independent act of an independent third person not subject to the control of the employer of the injured employe. Since the employe’s acts are the acts of the employer, for the purpose of fixing the employer’s liabilities, they must logically be held to be the acts of the employer instead of the acts of the employe for the purpose of fixing the liability of the employe.

Hence we hold that the act of Landrum, as set forth in the petition, being in the regular course of the employment, and not being alleged to be willful, wanton, or malicious, was the act of the employer, and that Landrum cannot be held liable after application for and acceptance by defendant in error of compensation under the act.

Judgment of the Court of Appeals reversed and that of the common pleas affirmed.

Marshall, C. J., Day, Robinson and Matthias, JJ., concur.  