DISSENTING OPINION. I find myself unable to agree with the majority opinion in this case. It is my opinion that the appellee's decedent at the time of his injury and death was engaged in the joint service of the two merchandising companies whom he represented.
It is true that he had a separate contract of employment with the Glenn Garment Company of Cincinnati, *Page 638 Ohio, whose merchandise he sold. It is likewise true that he had a contract of employment with the Shelby Manufacturing Company, whose merchandise he sold. The territory which he covered as a salesman for each company was identical. His time was his own. He was in the service of both companies at the time of his injury and death. He was not required under his employment to devote a portion of his day to the service of one employer and another portion of his day to the service of the other employer.
As in the case of a night watchman employed to watch buildings owned by separate individuals the cases generally hold that such employment is a joint service. In the case of Page EngineeringCo. v. Industrial Commission (1926), 322 Ill. 60, 65,152 N.E. 483, the court in speaking of such employment said:
"He was not employed to give a definite part of his time to the service of each of them but he was employed to watch both properties all night every night, and wherever he was upon the property of either at any time of the night he was in the course of his joint employment by both employers. Any injury received by reason of such employment, whether on the property of one or the other of his employers, arose out of the joint employment."
See also Stresenreuter v. Industrial Com. (1926), 322 Ill. 187, 152 N.E. 548.
It will be noted that our statute expressly provides that if an employee for whose injury or death compensation is payable, be at the time of injury in the joint service of two or more employers, such employers shall contribute pro rata to the payment of his compensation. § 40-1414, Burns' 1940 Replacement.
While the contracts of employment may have been concurrent, it is clear to me that the service which the appellee's decedent was performing at the time of *Page 639 his death was a joint service, and had both employers been Indiana corporations, but one recovery could be had for the loss sustained. To hold, therefore, that the appellee having recovered under the Workmen's Compensation Laws of Ohio the sum of sixty-five hundred dollars as compensation for the death of her husband may now come into the jurisdiction of the Indiana Industrial Board and again recover compensation for the same injury is to permit a double recovery, which was obviously not the intention of the law.
As is said by Schneider in his able work on workmen's compensation:
"To thus allow double recovery is, in the author's opinion, bad policy and contrary to one of the fundamental principles of workmen's compensation, in that if the employee were to receive more compensation while disabled than while working the temptation to malinger and prolong his period of disability would be great. In addition this would be penalizing the employer for his industry in extending his business to other states. Not to mention questions of interstate comity and res adjudicata. The author prefers in such cases as a matter of comity, the theory of concurrent jurisdiction." Vol. 1 (2nd Ed.), § 47, p. 412, Workmen's Compensation Law (Schneider).
This same principle is recognized by the Supreme Court of New Mexico in the case of Hughey v. Ware (1929), 34 N. Mex. 29, 34, 276 P. 27. In denying recovery under the compensation act of New Mexico for an injury which occurred there, upon a showing that compensation had already been awarded for the same accident in the State of Texas, the court said:
"There was but one accident. It is the public policy of this state that, for such accident, compensation shall be made in a certain amount, to secure the injured employee against want, and to *Page 640 avoid his becoming a public charge. The employer is required to carry compensation insurance. This is a device to place upon the industry as a whole the cost of the prescribed compensation. In the case at bar it appears that the industry has already borne the cost imposed upon it by Texas law. That may be more or less than under our law. But, if both laws may be invoked, the charge imposed upon the industry by the public policy of either state will be exceeded."
The majority opinion takes the position that the State of Indiana is not concerned with the proceedings by which the appellee recovered full compensation for her loss under the laws of Ohio. This position, followed to its logical conclusion, would permit a widow of a traveling salesman, whose death was occasioned from injuries arising out of his joint service to many employers located in many states, to recover as many compensation awards growing out of the death of such husband as he had employers, provided they were located in separate states. Surely, this is contrary to public policy, and it is clearly contrary to the declared intention of the Indiana Legislature, which permits but one recovery where the injury grows out of the joint service to two or more employers. § 40-1414, Burns' 1940 Replacement.
It may be noted also that the result reached by the majority opinion gives no thought to the situation which might arise if the death of the employee was occasioned by the wrongful act of a third party. In such a case our statute provides that:
*Page 641". . . the employer, having paid compensation or having become liable therefor, may collect in his own name . . . or, in case of death, in the name of his dependents, from the other person in whom legal liability for damages exists, the compensation paid or payable to the injured employee or his dependents." § 40-1213, Burns' 1940 Replacement.
Under the provisions of this statute if the appellee's husband were killed by the negligence of a third person, then such third person would be required to respond in damages in as many law suits as there were employers in different states whose statutes make provision for judgment over against the wrongdoer. Here again such multiplicity of action was never contemplated by our statute.
It is my opinion that in cases such as the one at bar the appellee has the right to elect in which forum she will prosecute her cause of action. Having selected her forum and obtained judgment there, she is now precluded from again litigating her same cause of action in a separate forum having a like jurisdiction.
It is my opinion that the award of the Industrial Board should be reversed.
NOTE. — Reported in 44 N.E.2d 315.