Conrad v. Tomlinson, 272S25

• Decision Date: 07 March 1972
• Docket Number: No. 272S25,272S25
• Citation: 258 Ind. 115,279 N.E.2d 546
• Parties: Martin L. CONRAD and Opal G. Conrad, Appellants, v. Howard TOMLINSON, d/n/f Harriet C. Craft, Appellees.
• Court: Indiana Supreme Court

Page 546

279 N.E.2d 546

258 Ind. 115

Martin L. CONRAD and Opal G. Conrad, Appellants, v. Howard TOMLINSON, d/n/f Harriet C. Craft, Appellees.

No. 272S25.

Supreme Court of Indiana.

March 7, 1972.

Arch N. Bobbitt, and C. Wendell Martin, Indianapolis, for appellants.

Edward J. Erpelding, Joe L. Tipton, Frank E. Spencer, Indianapolis, for appellees.

HUNTER, Justice.

Petitioner, Howard Junior Tomlinson is before this Court on an Application for Transfer seeking review of the Appellate Court's decision in Conrad v. Tomlinson (1971), Ind.App., 270 N.E.2d 879. Tomlinson, plaintiff-appellee, received a favorable judgment in the trial court in the amount of $100,000.00 for injuries received by him in a truck accident on defendants' farm. The Appellate Court held that the trial court erred in refusing to declare a mistrial for alleged misconduct of the Bailiff in entering the jury room while the jury was deliberating. The Appellate Court also found error in the giving of an instruction which authorized the jury to find that the defendants, Martin and Opal Conrad, had violated the Compulsory Education Act of 1921. The trial court's judgment was reversed, and a new trial ordered. For reasons hereinafter stated, the Petition to Transfer is granted.

The evidence most favorable to the plaintiff-appellee, Tomlinson, reveals that on or about August 6, 1963, he was employed by the Conrads to perform certain tasks on their farm. At the time, Tomlinson was thirteen years of age, and he resided with his family in a tenant house on the farm. On the day of the accident he flagged down a farm dump truck loaded with corn cobs which was passing his house at noontime. Tomlinson had been instructed by the farm foreman to stop the truck and tell the driver, who was also a farm employee, that he should dump the cobs before he returned home for lunch. After being so informed, the driver of the dump truck backed the truck up the road to the entrance to the field where the cobs were to be dumped. Tomlinson and his younger brother, Billy, rode on the truck until it reached the closed gate to the field. Tomlinson got off the truck, opened the gate, and closed it after the truck had passed through. He then ran after the truck, which had failed to stop, and attempted to jump onto the right running board. Tomlinson was successful in reaching the truck, but he was unable to hold on to the side. He fell and was run over by the rear wheels of the truck, receiving severe injuries.

Paragraph I of the amended complaint alleges that the defendants invited the plaintiff to ride on the running board of the truck and that he was injured as a result of several specific acts of negligence. Paragraph II alleges that Mr. and Mrs. Conrad were subject to the Employers Liability Act; that the plaintiff was their employee; and that the Conrads were negligent, both vicariously and directly, in that: (a) the driver-employee drove the truck away from the gate without using reasonable care due to his failure to ascertain whether plaintiff had successfully boarded the truck; (b) the driver-employee drove the truck when it was so loaded as to obstruct the view of the driver of the truck to the side of the vehicle; (c) they failed to maintain the truck in a safe condition, and instead allowed it to be driven when it was not safely equipped; (d) they failed to have the truck licensed under the laws of the State of Indiana; (e) they employed an incompetent driver in that he was not licensed to drive in the State of Indiana, and he could not read; (f) they employed the plaintiff who was only thirteen years of age and incapable of comprehending dangers; (g) they failed to provide plaintiff with a safe place to work; (h) they failed to equip the motor with a good muffler; (i) through the farm foreman they order plaintiff to ride upon the truck when they knew it was constructed so that a person riding on the running board could fall off and be run over by the rear wheels; and that such negligence was the proximate cause of plaintiff's injuries. The driver-employee was also joined as a defendant, but the jury found that the employee was not negligent.

In answer to an interrogatory, the jury found that plaintiff was an employee of Mr. and Mrs. Conrad. Thus it was not unreasonable for the Appellate Court to conclude that the verdict stood on legal paragraph II of the amended complaint. However, it should be noted that the evidence most favorable to the plaintiff-appellee is sufficient to sustain a verdict under either paragraph of the complaint.

Plaintiff's Instruction No. 42, the giving of which was found to constitute reversible error, reads as follows:

'With respect to Paragraph II of Plaintiff's Amended Complaint you are instructed that at the time of the injuries complained of in said complaint, there were statutes of the State of Indiana in full force and effect which provided in part as follows:

'No minor under the age of sixteen (16) shall be employed, permitted or suffered to work in any capacity . . . in any . . . occupation dangerous to life or limb . . ..'

and as follows:

'In all actions for damages for personal injuries by any minor . . . because of his being employed, retained in employment, required or permitted to work in violation of any of the provisions . . . of this act, the employer shall not be permitted to defend upon the ground that such minor had assumed any risk of the employment, or that the injury was due to the negligence of a fellow servant, or to the contributory negligence of such minor. In any such action, it shall be sufficient to allege and prove that such minor was employed, retained in employment, required or permitted to work in violation of any provision hereof, and that the injury arose out of such employment or performance of such work.'

'Therefore, if you find from a preponderance of the evidence in this case that at the time of the injuries complained of, the plaintiff, Howard Tomlinson, was a minor under the age of sixteen, was employed, retained in the employment, required, suffered or permitted to work in any capacity on the Conrad Farm by the defendants, Martin L. Conrad and Opal G. Conrad, and each of them, that said work was dangerous to the life and limb of Howard Tomlinson, and that his injuries arose out of such employment or the performance of such work, then defendants, and each of them, may not defend against Paragraph II of Plaintiff's Amended Complaint upon the grounds that the plaintiff had assumed any risk of said employment, or that the injury was due to the negligence of a fellow servant, or due to the contributory negligence of the plaintiff.'

The statutory language contained in the above instruction is taken from sections of the Compulsory Education Act of 1921, Ind.Ann.Stat. § 28--501 et seq. (Burns 1948). As amended since the trial the Act is IC 1971, 20--8---8--1 et seq. or Ind.Ann.Stat. § 28--5306 et seq. It should also be noted that the prohibition against employing a child under the age of sixteen years in any occupation 'dangerous to life or limb' is no longer contained in the Act. If this Act is applicable, the plaintiff's contributory negligence, if any, would not be available as a defense. The Appellate Court, in regard to this matter, held:

'(A) consideration of the entire act leads to the inescapable conclusion that the General Assembly did not intend to include any work on a farm in the phrase 'any other occupation dangerous to life or limb." Conrad v. Tomlinson, supra, Ind.App. at 270 N.E.2d at 882.

We do not agree.

Ind.Ann.Stat. § 28--518 (Burns 1948), IC 1971, 20--8--8--18, provided as follows:

'No minor under the age of fourteen (14) years shall be employed or permitted to work in any gainful occupation other than farm labor or domestic service, or as a caddie to any person or persons who are engaged in playing the game of gold or as a carrier of newspapers. It shall be unlawful for any person, firm or corporation to employ or permit any minor to work in any occupation or service whatsoever during any of the hours when the common schools of the school corporation in which such minor resides are in session, contrary to the provisions of sec. 6 ( § 28--506) of this act.'

Ind.Ann.Stat. § 28--522 (Burns 1948), provided:

'No minor under the age of sixteen (16) years shall be employed, permitted or suffered to work in any capacity in any of the following occupations: Oiling, wiping or cleaning machinery, or assisting therein; operating, or assiting in the operation of, or offbearing at, any of the following machines or apparatus, whether power driven or not: Circular or band saws, wood shapers, wood joiners, planers, stamping machines used in sheet metal or tinwork manufacturing, stamping machines in washer or nut factories, or any other stamping machine used in stamping metal, boiler or other steam generating apparatus; dough bakers or cracker machinery of any description, wire or iron straightening machinery, rolling mill machinery, punch, shears, drill press, grinding or mixing mills, calender rolls in rubber manufacturing, laundry machinery, corrugating rolls of the kind used in roofing and washboard manufacturing, metal or paper cutting machines, corner staying machines in paper box factories, assorting, manufacturing or packing tobacco, in or about any mine, quarry, or excavation, or in any hotel, theatre, bowling alley, or in any other occupation dangerous to life or limb, or injurious to the health or morals of such minor.' (our emphasis)

Ind.Ann.Stat. § 28--523 (Burns 1948), IC 1971, 20--8--8--22, read, in part:

'No minor under the age of eighteen (18) years shall be employed, permitted or suffered to work in any capacity in any of the following occupations: Oiling and cleaning moving machinery; in the operation of emery wheels except for the sharpening of tools used by an apparentice in connection with his work; or at any abrasive, polishing or buffing wheel; * * * in the...