Allen v. Public Service Co. of Ind., 18237

• Decision Date: 31 March 1952
• Docket Number: No. 18237,18237
• Citation: 122 Ind.App. 421,104 N.E.2d 756
• Parties: ALLEN v. PUBLIC SERVICE CO. OF INDIANA, Inc.
• Court: Indiana Appellate Court

Page 756

104 N.E.2d 756

122 Ind.App. 421

ALLEN v. PUBLIC SERVICE CO. OF INDIANA, Inc.

No. 18237.

Appellate Court of Indiana, in Banc.

March 31, 1952.

Thomas J. Gallagher, Sullivan, for appellant.

Bernard C. Craig, George N. Craig, Brazil, Will H. Hays, Hinkle C. Hays, John S. Taylor, J. Olias Vanier, John T. Hays, Leslie E. Howell, Garza Baldwin, Jr., George F. Taylor, Sullivan (William P. Evans, Gen. Counsel, Public Service Co. of Indiana, Inc., Plainfield, and Edmond W. Hebel, Indianapolis, of counsel), for appellee.

WILTROUT, Presiding Judge.

Appellee has filed a motion to affirm the judgment of the court below by reason of deficiencies in appellant's brief. While the brief does not strictly comply with Rule 2-17, there was a good faith effort to comply, resulting in a substantial compliance so that the court is able to understand the questions sought to be presented and the points made. The motion to affirm is overruled.

A demurrer was sustained to appellant's complaint on the ground that his action was one properly brought before the Industrial Board.

The complaint alleges that appellee, a public utility corporation, owns and maintains electric light poles and wires; that appellant was employed by appellee as a maintenance man; that in March 1946, appellee assigned one Hanger, another employee; to work with appellant 'and for both of them to climb the same poles together, to drink from the same water container, handle the same tools and to work each day all day together as 'buddies"; that at that time Hanger was afflicted with the highly contagious disease of amoeba dysentery or amebiasis, which fact appellee knew but appellant did not; that appellee knew of appellant's lack of knowledge; that after being exposed to the disease for a period of time appellant learned of Hanger's affliction and, not knowing whether it was contagious or not, called it to the attention of appellee; that appellee assured him that it was not contagious and directed him to continue work; that appellee knew or could have known by due care that the disease was contagious; that appellee negligently, knowingly and wilfully exposed appellant to this disease by requiring him to work in constant contact with Hanger, knowing that he was likely to contract the disease; that appellant relied upon defendant's direction and advice that the disease was not contagious and so relying contracted the same. It is further alleged that the disease is a disease independent of the relation of employer and employee and not incidental to the character of appellee's business, but is an ordinary disease of life to which the general public can be exposed upon association with those afflicted.

The complaint does not allege a rejection of the Workmen's Compensation Act.

'The rule has been firmly established by decisions of both this court and the Supreme Court that in the absence of a rejection of the Workmen's Compensation Act by employee or employer, where a case comes within the provisions of that Act, the remedy there provided is exclusive.' Markham v. Hettrick Manufacturing Company, 1948, 118 Ind.App. 348, 79 N.E.2d 548; Seaton v. United States Rubber Co., 1945, 223 Ind. 404, ...