American Coal Mining Company v. Lewis

• Citation: 133 N.E. 846,77 Ind.App. 394
• Decision Date: 25 January 1922
• Docket Number: 10,927
• Parties: AMERICAN COAL MINING COMPANY v. LEWIS, ADMINISTRATOR
• Court: Court of Appeals of Indiana

133 N.E. 846

77 Ind.App. 394

AMERICAN COAL MINING COMPANY v. LEWIS, ADMINISTRATOR

No. 10,927

Court of Appeals of Indiana

January 25, 1922

From Daviess Circuit Court; James W. Ogdon, Judge.

Action by Harry R. Lewis, administrator de bonis non of James Elmer Cross, deceased, against the American Coal Mining Company. From a judgment for plaintiff, the defendant appeals.

Reversed.

W. R Gardiner, C. K. Tharp, C. G. Gardiner and Woodson Tharp, for appellant.

Harry R. Lewis and Alvin Padgett, for appellee.

OPINION

BATMAN, P. J.

This action is based on the alleged negligence of appellant, which it is claimed caused the death of appellee's decedent. The complaint is in two paragraphs, both of which are drawn under the Employer's Liability Act, Acts 1911 p. 145, § 8020a et seq. Burns 1914. The first paragraph alleges in substance, among other things that on December 19, 1915, appellant was engaged in mining coal, and had as a part of its plant used for that purpose a large amount of machinery, equipment and appliances, upon the surface of the earth about its said mine, which was kept in repair by appellant's employes; that on said day appellee's decedent was in the employ of appellant, and it was his duty, as such employe, "to go from place to place upon defendant's said premises to inspect the machinery and equipment used by said defendant in carrying on its said business, and to inspect any repairs being made to said machinery or equipment"; that on said date some of the employes of appellant were engaged in making repairs by placing a false or dumping bottom in one of its hoisting cages; that in making said repairs said employes detached certain parts of the dumping apparatus connected with said hoisting cage, and failed to secure them after being so detached, but carelessly and negligently left them in such position that they were liable to fall and injure appellant's employes as they proceeded with their work; that while said parts were in said insecure condition said decedent, in the discharge of his duties, went to inspect the work being done by appellant's said employes in making said repairs, and while so doing said unsecured parts of said dumping apparatus fell on said decedent and killed him; that the negligence of appellant's said employes in failing to properly secure said parts of said dumping apparatus was the direct, proximate and sole cause of the death of said decedent; that more than thirty days prior to the decedent's said injuries appellant duly excepted itself from the operation of the Indiana Workmen's Compensation Act, Acts 1915 p. 392, § 80201 et seq. Burns' [77 Ind.App. 398] Supp. 1918, by serving a printed notice, in substantially the form prescribed by the Industrial Board, personally on appellee's decedent, and by posting the same in a conspicuous place at its said mine. The second paragraph of the complaint is substantially the same as the first, except that it charges that the detached parts of the dumping apparatus, connected with the hoisting cage being repaired, could have been so chained or otherwise fastened that they would not have fallen, and that it was appellant's duty to furnish chains or other means for making said detached parts secure, in order that said decedent's working place might be made safe; that appellant negligently failed to furnish such chains or other means for said purpose, and that by reason of such negligence said detached parts of said dumping apparatus fell upon said decedent and killed him; that appellant's said negligence was the direct, proximate and sole cause of the death of said decedent. Appellant filed successive motions to require appellee to make his first paragraph of complaint more specific, and to state facts to sustain certain conclusions stated therein, each of which was overruled. It filed separate demurrers to each of said paragraphs of complaint, which were also overruled. The complaint as a whole was answered by a general denial. A special answer was filed to the first paragraph of the complaint which alleged in substance, that the decedent was appellant's foreman and vice-principal, and as such had in his charge and under his control the workmen engaged in making the repairs described; that it was their duty to obey, and they did obey, the decedent in making such repairs; that in the performance of said work he was the sole representative of appellant, and that the same was performed solely in accordance with the orders and directions given by him; and that if there was any negligence in the performance thereof, resulting in his injuries, it was solely his own negligence. To this affirmative answer a reply in general denial was filed. The cause was submitted to a jury for trial, resulting in a verdict and judgment in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and it is now prosecuting this appeal on an assignment of errors, which requires a determination of the questions hereinafter considered.

Appellant's assignment of errors is based in part on the actions of the court in overruling its motions to require appellee to make the first paragraph of his complaint more specific in certain particulars, and to require him to state facts to sustain certain conclusions alleged therein. The overruling of the motion first named is not reversible error, as it does not appear that appellant was harmed thereby. Leimgruber v. Leimgruber (1908), 172 Ind. 370, 86 N.E. 73, 88 N.E. 593; Board, etc. v. State, ex rel. (1913), 179 Ind. 644, 102 N.E. 97; Kinmore v. Cresse (1913), 53 Ind.App. 693, 102 N.E. 403; Adams Express Co. v. Welborn (1915), 59 Ind.App. 330, 108 N.E. 163, 109 N.E. 420. Appellant has waived any error based on the action of the court in overruling the second motion named, by failing to make any reference thereto in that part of its brief devoted to the statement of propositions or points.

Appellant contends that the court erred in overruling its demurrer to each paragraph of the complaint. It cites the clause quoted above with reference to the duties of appellee's decedent which appears in each paragraph of the complaint, and asserts that said clause clearly shows that it had delegated to said decedent the duty of superintending the work of repairing the cage in question, and had thereby made him its vice-principal in the performance of said work; that by reason of that fact it was his duty to see that proper equipment was supplied to carry on the work safely, and if it was not so conducted it was his duty to correct the method of performance; that under these circumstances any failure in this regard on his part would not constitute negligence with which it would be chargeable in this action. Appellant's conclusion would be correct, if it could be held that the paragraphs of complaint show that appellee's decedent was a vice-principal as appellant contends. However, we cannot agree that said paragraphs show such fact. They merely allege that it was the duty of said decedent "to go from place to place upon defendant's said premises to inspect the machinery and equipment used by said defendant in carrying on its said business, and to inspect any repairs being made to said machinery or equipment." There are no allegations that it was his duty to superintend or direct the work in any way, or that he had any authority in that regard, and there are no facts alleged from which such duty or authority can be properly inferred. Therefore we cannot apply the rule for which appellant contends. Neither paragraph expressly alleges that appellant had filed notice of its rejection of the provisions of the Workmen's Compensation Act, supra, with the Industrial Board, but such filing is implied in the conclusion alleged in that regard, which is sufficient, since appellant has waived any error in overruling its motion to have facts stated to sustain such conclusion. In view of the provisions of the Employers' Liability Act, supra, under which this action is prosecuted, which abrogates the common-law rule of assumed risks, in so far as it applies to the particular risk of injury through the negligence of a fellow-servant, we find no sufficient reason on which to base a conclusion that the court erred in overruling the demurrer to either paragraph of the complaint. J. Wooley Coal Co. v. Tevault (1917), 187 Ind. 171, 118 N.E. 921, 119 N.E. 485; Vandalia R. Co. v. Fry (1919), 70 Ind.App. 85, 123 N.E. 124.

Appellant contends that the court erred in overruling its motion for a new trial. This contention must be sustained on the ground that the verdict is not sustained by sufficient evidence for the following reasons: The Workmen's Compensation Act, supra, makes the following provisions:

"Section 2. From and after the taking effect of this act, every employer and every employe, except as herein stated, shall be presumed to have accepted the provisions of this act * * * unless he shall have given prior to any accident resulting in injury or death notice to the contrary in the manner herein provided. This act shall not apply to railroad employes engaged in train service." Acts 1917 p. 673.

"Sec. 3. * * * The notice of exemption * * * shall be given thirty days prior to any accident resulting in injury or death. * * * The notice shall be in writing or print in a substantial form prescribed by the Industrial Board, and shall be given by the employer by posting the same in a conspicuous place in the plant, shop, office, room or place where the employe is employed or by serving it personally upon him; * * * a copy of the notice in prescribed form shall also be filed with the Industrial Board." Acts 1915 p. 392, supra.

"Sec 4. Every contract of service between any employer and employe covered by this act, * * * shall be...