Blanchard-Hamilton Furniture Co. v. Colvin

Decision Date05 February 1904
Docket Number4,574
Citation69 N.E. 1032,32 Ind.App. 398
CourtIndiana Appellate Court

From Shelby Circuit Court; Douglas Morris, Judge.

Action by Stephen Colvin against the Blanchard-Hamilton Furniture Company. From a judgment for plaintiff, defendant appeals.


K. M Hord, E. K. Adams and Albert Davis, for appellant.

Isaac Carter and H. C. Morrison, for appellee.

COMSTOCK J. Henley, C. J., Robinson, Black, and Roby, JJ., concur. Wiley, P. J., absent.



Appellee sued and recovered judgment for $ 1,650 in the court below, for injuries sustained by him while working for appellant on a frizzer which was not properly guarded, and which injuries would not have happened had the machine been so guarded. The action is based upon a statutory liability. § 7087i Burns 1901, § 5169k Horner 1901, Acts 1899, p. 231.

The errors relied upon for reversal are the action of the court in overruling appellant's demurrer for want of facts to the complaint, and its motion for a new trial.

The complaint is in one paragraph. It contains, among other things, the following: "That during all of said time said company was required by law properly to guard its machines and said frizzer, and to put upon them and it proper safeguards; that said guards were so required for the purpose of protecting from injury the men who worked on such machines; that on the 24th day of October last the factory in which said machines were used was inspected by the officer authorized and directed by law to make such inspection, and on or about the 28th day of said month said defendant was directed by said officer to provide guards for ripsaws, joiners, and frizzers; that said defendant neglected, failed, and refused to perform its said duty, and also to place or provide guards for said frizzer or properly to guard the same; that on the 13th day of January, 1902, the plaintiff was employed by the defendant in said factory; that under the direction of the defendant it was his duty to work at said machine known as a frizzer; that while he was engaged at said work it was his duty to place pieces of wood on the table on said machine and to run them over the same; that portions of such wood were cut by such revolving bits; that on said day no guard of any kind was provided by the defendant to be used by him while he was working at and operating said machine on said work, nor did he have a guard which he could use on said frizzer while he was doing the work he was then doing, and said machine was then wholly unguarded, and of which the defendant knew."

The objection made to the complaint is that it "does not travel on any definite theory." It is claimed that it is uncertain. "It is uncertain from the allegations whether the plaintiff attempted to allege that no guard was furnished, or that the machine was guarded by a defective guard. If the purpose was to allege the furnishing of a defective guard, it was plaintiff's duty to allege specifically in what particular the guard was defective, so as to give notice to appellant of the exact theory upon which the appellee relied for recovery. The allegation that the machine was not properly guarded is pleading a conclusion and not an averment of fact."

Uncertainty in a complaint is reached by a motion to make more specific. Cleveland, etc., R. Co. v. Wynant, 119 Ind. 539, 20 N.E. 730. If more than one cause of action is stated, the remedy is by motion to separate or by demurrer for misjoinder. If the complaint alleges the failure of a duty imposed by statute, it is sufficient to allege such failure in the language of the statute imposing the duty. Pittsburgh, etc., R. Co. v. Brown, 44 Ind. 409, 411; Buehner Chair Co. v. Feulner, 28 Ind.App. 479, 63 N.E. 239; Monteith v. Kokomo, etc., Co., 159 Ind. 149, 58 L. R. A. 944, 64 N.E. 610. The statute required the appellant "properly to guard" the machine. This is the statement of a fact. The allegation that it was not properly guarded is not the statement of a conclusion. The leading allegations of a pleading determine its theory. An appellate court will look to the whole record to determine the theory of a case. Carmel Nat. Gas, etc., Co. v. Small, 150 Ind. 427, 47 N.E. 11; Carter v. Lacy, 3 Ind.App. 54, 29 N.E. 168; Shew v. Hews, 126 Ind. 474, 26 N.E. 483.

It is averred in the complaint "that no guard of any kind was provided by the defendant to be used by him while he was working at and operating said machine on said work, nor did he have a guard which he could use on said frizzer while he was doing the work he was then doing, and said machine was then wholly unguarded, all of which the defendant knew;" that the injury was sustained without any fault or negligence on the part of the appellee, and was due wholly to the fault of the defendant. In the second paragraph of the answer the appellant says that it "had provided for use on said machine, at and before the time of his alleged injury, a guard to be placed upon said machine, and which before the time of said injury had been placed thereon, and which guard was the best known for use upon said machine, so as to be full and ample protection to plaintiff while working with said machine; * * * that said plaintiff would not have been injured if he had obeyed the instructions of this defendant in the use of said guard." In the third paragraph of the answer the appellant says that the appellee was "fully aware of the dangers and hazards of operating the same [the frizzer] without a proper guard adjusted to and attached to said machines; and that it 'provided him with a proper and sufficient guard,' that could be adjusted and placed on the machine, and if he had used said guard, which was the best known for the protection of persons using said machine, he would not have been injured."

The court gave instruction sixteen, in which it said: "If you further find that at the time such inspector or deputy gave such order, or at any time before such injury, there was provided by defendant or its employes at its instance a suitable guard for such machine, which would protect the plaintiff from such injury while doing the work at which he was engaged when injured," etc. Also instruction seven, in which it said: "You may consider whether or not there was at hand a suitable guard which he had a right to use, by the use of which he might have avoided the injury." And in instruction eight the following language is used: "Notwithstanding it was the duty of the defendant, at the time plaintiff received the injury complained of, to provide a suitable guard for plaintiff's use and protection while operating the machine by which he was injured." In instruction seven the court told the jury, "If you find from the evidence that a guard, and which was a proper kind of a guard;" also, "If such a guard was made in the manner and under the circumstance as set out in this instruction, and if it could have been used by the plaintiff with safety at the time he received the injury," etc. All said instructions were given at appellant's request.

In the admission of evidence the counsel for appellant said, with reference to the guard furnished: "We want to show that the guard could have been used, and it was his duty to use it for the purpose of making application to that work." The court then said to counsel: "Your object is to prove that the particular guard in question could have been used safely in the work?" to which the counsel responded, "Yes, sir; in doing this particular work."

These extracts from the record show that the case was tried upon the theory, not that no guard was furnished, but that it was the duty of the appellant properly to guard the frizzer. When the facts pleaded may be construed as proceeding upon different theories in the statement of a cause of action, the construction placed upon them by the trial court will be the theory upon which they will be considered by the court upon appeal. Callaway v. Mellett, 15 Ind.App. 366, 57 Am. St. 238, 44 N.E. 198. The complaint states a good cause of action upon the theory that no proper guard was furnished or that no guard was furnished, and is therefore sufficient to withstand a demurrer. Kreag v. Anthus, 2 Ind.App. 482.

Appellant discusses the following reasons set out in the motion for a new trial, viz.: The verdict of the jury is not sustained by sufficient evidence; it is contrary to law (under these specifications appellant contends that the evidence of the appellee shows that his own conduct contributed to his injury); that the court erred in refusing to give as the law of the case instructions two, three, ten, and eleven, and each of them, requested by appellant, and in giving to the jury instructions numbered five, nine, ten, twelve, and fourteen, and each of them.

Said instructions two, three, ten, and eleven were each of them addressed to the question of appellee's contributory negligence. In so far as they correctly stated the law, the substance of them was covered by others given. The instructions to the jury upon this question were fair and full.

Said instruction five, given to the jury, is as follows: "Before the plaintiff can recover in this cause, the evidence must have shown, by a fair preponderance thereof, that before the commencement of this action the defendant used in its factory a machine known as a frizzer as described in the complaint; that plaintiff was employed by defendant to operate said frizzer; that, while so operating said machine, his left hand was caught therein, and one or more of his fingers on said hand were cut and injured, that the proximate cause of such injury was the failure of the defendant to provide a proper guard for said machine for plaintiff to use...

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