Armstrong Cork Co. v. Maar

Citation124 Ind.App. 105,111 N.E.2d 82
Decision Date23 March 1953
Docket NumberNo. 18320,18320
PartiesARMSTRONG CORK CO. v. MAAR.
CourtCourt of Appeals of Indiana

Arthur C. Van Duyn, Greenfield, George C. Forrey, III, George N. Craig, Edward B. Raub, Jr. and Jacob S. White, Indianapolis, for appellant.

Davis & Williams, Greenfield, for appellee.

KELLEY, Judge.

This is an action arising out of alleged negligence of appellant causing personal injuries to appellee. Verdict and judgment was for the appellee in the sum of $17,750.

Appellee brought the action by complaint filed on May 1, 1948, which alleged that on February 21, 1947, he was employed at his trade as a structural steel worker on a building then being constructed by the Eli Lilly Company in the city of Indianapolis. In addition to the appellant, said complaint named Claude Wilson and Freeman Herron as defendants and alleged that on said date they were employed by the appellant as hod carriers at said building, and that they were loading on an elevator cartons of a product of appellant known as Foam Glass. It is further averred that while appellee was working on said building at a point below the platform of said elevator or hoist, the defendants started the same when it was loaded with '60-pound' boxes of said commodity and that when the hoist reached a point between two floors of the building, one of the boxes caught on a guard rail of the hoist and fell many feet, hitting the appellee on the head inflicting upon him 'permanent, serious, and painful injuries'. The complaint charges appellant with six specifications of negligence lettered a. to f., inclusive.

Under instructions by the court, unobjected to, the issue of negligence averred in specifications a., c. and f. were withdrawn from the consideration of the jury, as was also rhetorical paragraph 3 of the complaint which charged that the 'defendants operated and were in control of a certain elevator or hoist used in the erection of said building at said time and place'. (Our emphasis). Appellee made no objection to the withdrawal by the court of said issues from the jury and they will receive no further consideration. It is, however, appropriate at this point to say that specification b. charged that appellant negligently and carelessly 'placed said elevator or hoist into operation' (our emphasis) before all of said cartons were within the floor space of the hoist, and appellant contends that said specification b. was withdrawn by the court's instruction number 10 which was identical with instruction No. 9 requested by appellant and given by the court. Appellant had tendered its instruction No. 10 which contained the exact wording of said specification b., (our emphasis) and which would have withdrawn said issue from the jury. But the court refused to give said instruction No. 10 and, instead, gave appellant's said tendered instruction No. 9 which contained the wording of said rhetorical paragraph 3 of appellee's complaint. (Our emphasis). Therefore, it is apparent that said specification b. remained an issue for consideration by the jury.

The charges of negligence in appellee's complaint which went to the jury are, in substance, that: b. The appellant negligently 'placed said hoist into operation' before all of the cartons were within the floor space of the hoist and that one of the cartons was partly extending beyond the floor space; d. The appellant was negligent in failing to warn appellee 'that a certain box was protruding and extending over the edge of the platform of the hoist or elevator and that said box might fall' on the appellee; and, e. The appellant was negligent in 'failing to place a guard at the floor where said elevator or hoist left' to warn fellow workmen of existing danger. It is averred that appellants' negligence was the 'direct cause' of appellee's injuries.

Before submission for trial, the action was dismissed as to the defendants Claude Wilson and Freeman Herron, and they will not be further noticed as parties to the action.

Appellant put the complaint at issue by an appropriate answer of admission and denial and a second paragraph of answer alleging in substance, that at the time of his injuries appellee was employed by one Leslie Colvin and that his injuries were received 'by an accident arising out of and in the course of his said employment'; that on March 18, 1947 an agreement as to compensation under the terms of the Indiana Workmen's Compensation law was filed with and approved by the Industrial Board and appellee 'has accepted weekly benefits of compensation' and has received medical treatment under said agreement.

Appellee replied to said second paragraph of answer by denial thereof and by an amended second paragraph of reply alleging, in substance, that an agreement as to compensation was filed with and approved by the Industrial Board on March 18, 1947, but that 'any and all sums of money received or obtained from plaintiff's employer since said time was by agreement and with the understanding that said payments were made as an advancement or loan to the plaintiff until his impairment was ascertained and he elected which remedy he would proceed upon' under the Workmen's Compensation Act.

At the close of plaintiff's evidence, appellant moved for a peremptory instruction, which was denied and appellant renewed it's motion at the close of all the evidence, with the same result.

Appellant's motion for a new trial containing thirteen specifications was duly filed and overruled. This adverse ruling is the only error assigned for reversal.

The thirteen specifications for a new trial resolve themselves into three main inquiries which are, and will be disposed of in the order following, viz.: (1) Did the appellee make an election to accept compensation under the provisions of the Workmen's Compensation Act in effect on February 21, 1947 and thereby preclude his proceeding against appellant; (2) Was the verdict sustained by sufficient evidence; (3) Were the damages assessed by the jury excessive.

(1) Under the issues presented by the second paragraph of appellant's answer and the amended second paragraph of appellee's reply, the question of whether any benefits or money accepted by appellee from his employer or his insurer were received as compensation or as a loan became a question of fact for the jury. The jury, by it's general verdict, found the issue in favor of appellee. The appellant challenges this finding by asserting error in the admission of certain documentary evidence over it's objection, by asserting error in the refusal of the court to give appellant's tendered instruction No. 3, and by alleging insufficiency of the evidence to support the verdict and that it is contrary to law.

The appellant occupies the position of a third party tort-feasor which has inflicted injury upon an employee of another. That part of our Workmen's Compensation Law in effect on February 21, 1947 applicable to the aforementioned particular issue before the jury is § 40-1213, Burns' 1933, as amended by Acts 1945, ch. 188, § 4, p. 580. It provides:

'Whenever an injury or death, for which compensation is payable under this act, shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee * * * may claim compensation from the employer or proceed at law against such other person to recover damages or may proceed against the employer for compensation and against such other person * * * at the same time, but he * * * shall not collect from both; * * *.' (Our emphasis.)

Under said section of the Act and the amendment thereto it has been held that : (1) The purpose of the cited statute is to protect the employee and employer and not to protect or limit the liability of the negligent third person. New York Central R. Co. v. Milhiser, Ind.Sup., 1952, 106 N.E.2d 453; Marion County Construction Co. v. Kimberlin, 1933, 96 Ind.App. 145, 150, 184 N.E. 574; Schneider, Workmen's Compensation, §§ 44-45; (2) that an employee may claim both an award of compensation against the employer and a judgment against the wrongdoer, and as long as there has been no collection under either there has been no election. Rushville School Tp. v. Mock, 1927, 86 Ind.App. 307, 157 N.E. 366; (3) that the employee may obtain an award against the employer and also a judgment against the wrongdoer. Marion County Construction Co. v. Kimberlin, supra; (4) that the appellee and his employer had a right to enter into an agreement concerning compensation, and to have the same approved by the Industrial Board without affecting appellee's right to sue for and collect damages from appellant. Pittsburgh, etc. R. Co. v. Keith, 1925, 89 Ind.App. 233, 241, 146 N.E. 872; (5) the mere fact that an agreement for compensation has been made between an employee and employer does not itself indicate that the employee has elected his remedy. Samuel E. Pentecost Const. Co. v. O'Donnell, 1942, 112 Ind.App. 47, 67, 39 N.E.2d 812. (6) Agreements between the employer and employee in no way affect the liability of the wrongdoer, so long as there has been no actual payment and satisfaction of the claim assertd. Weis v. Wakefield, 1941, 111 Ind.App. 106, 118, 38 N.E.2d 303. And (7) Retention of medical and hospital expenses does not constitute an election by the claimant to accept the remedies afforded under the compensation act. Weis v. Wakefield, supra.

It thus becomes readily apparent that under said issue appellant assumed the burden of proof that appellee had 'accepted weekly benefits of compensation' and the mere showing that a compensation agreement had been entered into by appellee, his employer, and the insurer would not, of itself, suffice to establish the alleged fact. Samuel E. Pentecost Const. Co. v. O'Donnell, 1942, 112 Ind.App. 47, 67, 39 N.E.2d 812, 820. The appellant, to sustain his affirmative answer, put into evidence copies of...

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