Evening Republican, Volume 17, Number 106, Rensselaer, Jasper County, 3 May 1913 — WILL TAKE APPEAL FROM LOWER COURT [ARTICLE]

WILL TAKE APPEAL FROM LOWER COURT

Suit Brought by McGee Against Stockton to Hav« Legal Point Decided in Higher Court. The suit of Landy McGee against Jay W. Stockton and others, for damages for injuries sustained by a fall from a third story window of the Makeeyer Hotel, while attempting to come flown one of the rope fire escapes, came up before Special Judge Berry, of Fowler, on Wednesday. The plaintiff ha,d filed two paragraphs of- complaint, the first on the theory of the recent employers liability act, and the second on the theory of the common law liability of a master for injuries to a servant. The court held the first paragraph of complaint not good, that is, if the matters alleged in it should be true, the law would not entitle McGee to recover. The court then held the second, paragraph of complaint good, that is, if the facts alleged therein are tftie, then the law would uphold the recovery of a judgment. The defendants then filed separate answers ,to the second paragraph of complaint, setting up the claim that McGee had signed a certain contract, whereby he agreed to do the work for the sum of $12.00, and as provided by the acts of 1909. The acts of 1909 say in substance that the owner of the hotel or some one at' his direction shall test the rope fire-escapes by descending the same.

The point of contention in this case is whether or not McGee assumed the rick of his employment. The complaint is on the theory that he refused to make the descent until assured by defendant that the chain attachment to the rope was safe and that Stockton did so assure him and that there was nothing in the appearance of the fireescape that would indicate apparentdefect and that McGee had a right to rely upon the representations of Stockton. But the supposed contract would indicate that McGee had agreed to assume the risk, and whether or not the contract, if actually signed by McGee, would bar his action, is to be determined by the supreme court.

McGee will appeaHrom the court’s rulings in holding' the first paragraph .of complaint bad,ahd in holding that the contract would bar his recovery. - This is what may result. If the supreme court should sustain the ruling of the tower coiurt in everything then the case will come back to this court for trial and it will then be up to the defendants to prove the contract upon which they rely. If the supreme court should reverse the lower court and hold the first paragraph of complaint good, and the second paragraph bad, then the contract would not 'be an answer to that paragraph of complaint, being based upon the employers liability law. If the supreme court should sustain the tower court on its ruling holding the first paragraph of complaint- bad and should also reverse the tower court in holding the second praagraph of complaint good then McGee would have no cause of action, otherwise the case will get back to this court for trial, but probably not before a year or more. The object of taking an appeal at this time is to decide the legal propositions by the higher court before the case goes to trial so that there will be little chance of an appeal after trial, which ever way the case might‘be decided by the jury.