Arthur v. Arthur, 1--1172A92

• Decision Date: 14 June 1973
• Docket Number: No. 1--1172A92,1--1172A92
• Citation: 296 N.E.2d 912,156 Ind.App. 405
• Parties: Geraldine ARTHUR, Plaintiff-Appellant, v. Ira E. ARTHUR, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 912

296 N.E.2d 912

156 Ind.App. 405

Geraldine ARTHUR, Plaintiff-Appellant, v. Ira E. ARTHUR, Defendant-Appellee.

No. 1--1172A92.

Court of Appeals of Indiana, Third District.

June 14, 1973.

Rehearing Denied Sept. 6, 1973.

Vernon J. Petri, Spencer, for appellant.

Hickam & Hickam, Spencer, for appellee.

HOFFMAN, Chief Judge.

The primary issue presented by this appeal is whether the trial court erred in granting summary judgment in favor of appellee Ira E. Arthur.

Lemuel P. Arthur and Ira E. Arthur were engaged in hauling logs for Kenneth Welty who was in the logging and timber business in Spencer, Indiana. On January 15, 1969, Lemuel was injured while he and Ira were unloading a load of logs from Ira's truck. Lemuel filed an application with the Industrial Board for compensation against Kenneth Welty. The Industrial Board approved an agreement between the parties that Lemuel was to receive compensation payments of $51 per week from January 16, 1969. Payment was made by the compensation insurance carrier for a period of 82 weeks. The total compensation received by Lemuel was approximately $13,000.

The instant cause of action against Ira Arthur was commenced by the complaint of Geraldine Arthur, the wife of Lemuel, for the loss of consortium of her husband and praying for judgment in the amount of $90,000.

A motion for summary judgment filed by defendant Ira Arthur was granted by the trial court and judgment was entered in favor of Ira. The timely motion to correct errors filed by Geraldine was overruled and this appeal followed.

The law in Indiana is clear that a wife is entitled to recover for loss of consortium against a wrongdoer who has injured her husband. Troue v. Marker (1969), 253 Ind. 284, 252 N.E.2d 800. However, a cause of action for loss of consortium derives its viability from the validity of the claim of the injured spouse against the wrongdoer. Where, for example, the claim of the injured spouse against the alleged tort-feasor has been abrogated by statute, the right of the other spouse to recover for loss of consortium cannot exist. Stainbrook v. Johnson Co. F. Bur. etc., et al. (1954), 125 Ind.App. 487, 122 N.E.2d 884 (transfer denied). Thus, the crucial issue in the instant case is whether Lemuel has a valid cause of action against Ira.

The instant case is controlled by the following provisions of the Indiana Workmen's Compensation Act of 1929, as amended: IC 1971, 22--3--2--5, Ind.Ann.Stat. § 40--1205 (Burns 1965); IC 1971, 22--3--2--6, Ind.Ann.Stat. § 40--1206 (Burns 1965); and IC 1971, 22--3--2--13, Ind.Ann.Stat. § 40--1213 (Burns 1972 Cum.Supp.). These sections must be construed together. Artificial Ice, etc. Co. v. Waltz (1925), 86 Ind.App. 534, 146 N.E. 826, (transfer denied).

Section 40--1205, supra, provides, in pertinent part, as follows:

'Insurance by employers--Carrying risk without insurance.--Every employer who accepts or is bound by the compensation provisions of this act ( §§ 40--1201--40--1414, 40--1505--40--1704), * * * shall insure the payment of compensation to his employees and their dependents in the manner hereinafter provided, * * * and while such insurance or such certificate remains in force, he or those conducting his business and his workmen's compensation insurance carrier shall be liable to any employee and his dependents for personal injury or death by accident arising out of and in the course of employment only to the extent and in the manner herein specified.'

Section 40--1206, supra, reads as follows:

'Rights and remedies of employee under this act exclusive.--The rights and remedies herein granted to an employee subject to this act ( §§ 40--1201--40-- 1414, 40--1505--40--1704) on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death.'

Section 40--1213, supra, provides, in pertinent part, as follows:

'Liability of third person--Subrogation of employer--Lien on award to employee--Notice to employer if employee sues--Settlements--When action barred--Costs--Attorney fees--Release and satisfaction.--Whenever an injury or death for which compensation is payable under this act ( §§ 40--1201--40--1414), shall have been sustained under circumstances creating in some other person than the employer and not in the same employ a legal liability to pay damages in respect thereto, the injured employee, or his dependents in case of death, may commence legal proceedings against such other person to recover damages notwithstanding such employer's or such employer's compensation insurance carrier's payment of or liability to pay compensation under this act. In such case, however, if the action against other person is brought by the injured employee or his dependents and judgment is obtained and paid, and accepted or settlement is made with such other person, either with or without suit, then from the amount received by such employee or dependents there shall be paid to the employer, or such employer's compensation insurance carrier, the amount of compensation paid to such employee or dependents, plus the medical, surgical, hospital and nurses' services and supplies and burial expenses paid by the employer or such employer's compensation insurance carrier and the liability of the employer or such employer's compensation insurance carrier to pay further compensation or other expenses shall thereupon terminate, * * *.'

In Witherspoon v. Salm, Executor (1969), 251 Ind. 575, 578, 243 N.E.2d 876, our Supreme Court was concerned with the following language of § 40--1205, supra:

'(H)e or those conducting his business (and his Workmen's Compensation insurance carrier) shall be liable to any employee and his dependents for personal injury or death by accident arising out of and in the course of employment only to the extent and in the manner herein specified.'

In interpreting the above language literally the court relieved the president, director, officer and manager of the employer-corporation from personal liability because he was a person conducting the business of the employer.

In Merritt v. Johnson (S.D.Ind.1961), 190 F.Supp. 454, the defendants, Johnson and Dotlichs, were hired by a concrete block company to build a concrete block plant. An employee of the block company brought a personal injury action against Johnson and Dotlichs. At 461 of 190 F.Supp., it is stated:

'The reference to 'some other person than the employer' in Section 13 means some other person than the employee's employer or those conducting his employer's business referred to in Section 5 of the Act. The question thus becomes whose business was Johnson, Dotlichs and Fowler conducting when the incident...