Conway v. Park

• Citation: 31 N.E.2d 79,108 Ind.App. 562
• Decision Date: 21 January 1941
• Docket Number: 16424.
• Parties: CONWAY v. PARK et al.
• Court: Indiana Appellate Court

31 N.E.2d 79

108 Ind.App. 562

CONWAY v. PARK et al.

No. 16424.

Appellate Court of Indiana, in Banc.

January 21, 1941

Cloe & Campbell, of Noblesville, for appellant.

Christian & Waltz, of Noblesville, and Cleon W. Mount, of Tipton for appellee.

STEVENSON Presiding Judge.

The appellant as plaintiff in the trial court filed an action against the appellees to recover damages for injuries arising out of an automobile collision. The amended complaint alleged that on the 20th day of July, 1935, the appellees were partners engaged in the business of buying and selling livestock; that the appellant at that time was the owner of a motor truck and was employed by the appellees to haul livestock for them in said truck. The complaint further alleges:

"That on said 28th day of July, 1935, at about six o'clock in the evening, the plaintiff was driving his said truck in an easterly direction over and along a public highway in Madison County, Indiana, known as the Walnut Grove highway, at a point about four miles east of the Hamilton and Madison County line, and was accompanied by the defendant Alexander S. Park, in gathering up a load of livestock which had previously been purchased by said defendants.

"That while so driving said motor truck he approached an intersection of said Walnut Grove Highway and the Mose Allen highway, which latter highway ran in a north and south direction and crossed said Walnut Grove highway at right angles. That said Mose Allen highway was a paved road and said defendant, Park, knew that the traffic on said Mose Allen highway moved much more rapidly than it did on said Walnut Grove highway. That at the time plaintiff approached said intersection his view to the north was partially obstructed by corn stocks standing in the field on the north side of said Walnut Grove highway. That upon approaching said highway crossing the plaintiff slowed down and prepared to stop at said intersection. That at said time the defendant Alexander S. Park, said to this plaintiff, 'Go ahead,' whereupon plaintiff proceeded to drive across said Mose Allen highway.

"That this plaintiff, believing and relying upon the fact that said defendant, Park, was acquainted with said highways and the nature of the traffic thereon and the order and direction by him given, proceeded to drive across said highway, but as they entered and were in the act of crossing said intersecting highway the truck in which plaintiff was riding was struck by an automobile operated by one Fae Nelson, approaching from the north, as a direct and proximate result of said defendant's order and direction to this plaintiff to proceed across said highway.

"That as they approached said intersection said defendant, Park, was seated on the right hand side of the driver's seat in said truck and was in a position where he could see and observe said highway.

"That by reason of defendant's said negligence said truck in which plaintiff was riding, was struck with such force and violence as to throw said truck off of the highway and upset the same on the east side of said Mose Allen highway and the plaintiff was thrown against the front and side of said truck, thereby bruising and wounding him crushing and mashing his left leg below the knee so that parts of the ankle bone were removed."

The complaint contains further allegations of injuries received which has resulted in permanent impairment. The complaint further alleges that the appellees were not operating under the provisions of the Workmen's Compensation Act, Burns' Ann.St. § 40-1201 et seq., and concludes with a prayer for judgment in the sum of $10,000.

To this amended complaint the appellees filed a demurrer assigning as a reason that the complaint does not state facts sufficient to constitute a cause of action. The court sustained this demurrer and the appellant refused to plead further and judgment was rendered in favor of the appellees and that the appellant take nothing. This appeal has been perfected and the error assigned in this court is the alleged error in sustaining the demurrer to the amended complaint. It is contended in support of the demurrer that the complaint does not show a duty on the part of the appellant to obey the orders of the appellees as to the manner of operating his truck nor does the amended complaint show that the appellees at the time the order was given knew of the danger present or in the exercise of reasonable care should have known of the present danger. The appellees further contend that the complaint shows no duty upon the appellees to protect the appellant in the operation of his truck and that the complaint shows upon its face that the appellant was guilty of contributory negligence.

Along with many other propositions, the appellee contends that this case is controlled by the Indiana Workmen's Compensation Act, and that the remedy thereby afforded is exclusive. In answer to this, it is contended by the appellant that the complaint shows on its face that the provisions of the Workmen's Compensation Act gives the appellant an election of remedies for the reason that the complaint alleges that "the defendants did not insure their liability nor make any proof to the Industrial Board of Indiana of their ability to pay their liability to any employee who might be injured in the course of his employment, but elected to and did operate such business without complying with the provisions of the Indiana Workmen's Compensation Act."

The appellant contends that this allegation is sufficient to enable him to maintain an action at law against the employer under the provisions of Section 69 of the Workmen's Compensation Act, Burns' Ann.St. § 40-1602. This section imposes a penalty on employers who refuse or neglect to comply with the provisions of Section 68 of the Workmen's Compensation Act, Burns' Ann.St. § 40-1601, as to the insurance provisions contained therein. Section 69 of the act accordingly provides: "If such employer refuses or neglects to comply with these provisions he shall be punished by a fine of ten cents (10c) for each employee at the time of such refusal or neglect, but not less than ten dollars ($10.00) nor more than fifty dollars ($50.00) for each day of such refusal or neglect and until the same ceases, and he shall be liable during continuance of such refusal or neglect to an employee either for compensation under this act or at law in the same manner as provided for in section ten." Sec. 40-1602, Burns' Ind.Statutes 1933, Sec. 16445, Baldwin's Ind.Stat.1934.

Under the provisions of this section, the appellees had an election as to whether or not they would operate their business under the provisions of the Workmen's Compensation Act or whether they would operate such business without complying with such provisions. The complaint alleges that the appellees did not carry insurance nor did they make proof to the Industrial Board of their financial ability to pay any employee who might be injured in the course of his employment. The appellant accordingly had an election to proceed against the appellees for compensation under the provisions of the Workmen's Compensation Act or to proceed...