Dawson v. Acme Evans

• Decision Date: 18 November 1947
• Docket Number: 17583.
• Citation: 75 N.E.2d 553,118 Ind.App. 49
• Parties: DAWSON v. ACME EVANS, Inc.
• Court: Indiana Appellate Court

75 N.E.2d 553

118 Ind.App. 49

DAWSON v. ACME EVANS, Inc.

No. 17583.

Appellate Court of Indiana, in Banc.

November 18, 1947

Appeal from Superior Court No. 3, Marion County; Francis M. Hughes Special Judge.

Hall Cochrane, of Indianapolis, for appellant.

Murray Mannon, Fairchild & Stewart, of Indianapolis, for appellee.

DRAPER Judge.

The appellant brought this action in the Marion Superior Court by next friend, to recover damages for personal injuries sustained by accident arising out of and in the course of his employment by appellee.

The complaint alleges that appellant, then 15 years of age, was injured while operating a freight car pulling device at night. It alleges common law negligence, as well as facts showing that appellant was illegally employed and permitted to work in violation of various of the provisions of the Compulsory Education Act, the Factory Act etc.

The appellee demurred to the complaint on the ground that exclusive jurisdiction of such a case is vested in the Industrial Board, whether the minor was lawfully or unlawfully employed. The demurrer was first sustained but later, on appellant's motion, was reconsidered and overruled. The appellee then took a change of venue from the regular judge and moved the reconsideration of the ruling on demurrer. Appellant moved to strike out appellee's motion to reconsider, which was overruled; the special judge sustained appellee's motion to reconsider, and sustained the demurrer. Error is predicated on those rulings by the special judge.

The real question seems to us to be whether a special judge has the right to reconsider the decisions of a prior judge in the same case. Dean Gavit in his Pleading and Practice, Vol. I, § 137, p. 652, comments as follows: 'Change of Ruling on Demurrer. If a trial court has overruled a demurrer the ruling constitutes a decision upon which the parties are entitled to rely as to the point raised during the subsequent proceedings in the case. Thus if the same point arises later the trial court should not rule on the point contrary to the ruling on demurrer. So long, however, as a case is pending a trial court has the power to modify or vacate a previous ruling, and it is perfectly proper for good cause shown for the trial court to reconsider a previous ruling, vacate it, and make a modified or contrary ruling. * * *'

In State ex rel. Williams Coal Co. v. Duncan, Judge, 1937, 211 Ind. 203, 6 N.E.2d 342, 343, our Supreme Court, actually considering, it is true, a motion for change of venue and not a demurrer, said: 'It often happens that the judge who originally has jurisdiction is required to rule upon a question of law, presented by demurrer or other pleading, and that thereafter, upon a change of judge, the same questions are presented during the trial. The ruling of the original judge does not become the law of the case so as to bind the judge who later has jurisdiction, nor, in passing upon the question when again presented, does he review the ruling of the former judge. His authority and his duty require that he exercise his judicial discretion as though the matter were presented for the first time.'

Although insisting the special judge had no right to reconsider and change the ruling on demurrer, the appellant concedes him the right to refuse to adhere to his predecessor's ruling if a similar question of law was later otherwise presented, such as by a motion for a directed verdict. It would seem to us that a judge who believes a ruling on demurrer by his predecessor was erroneous should not be required to put the parties to the expense of a trial, and occupy the time of the court for that purpose, well knowing in advance that he would not find for the plaintiff or permit a verdict favorable to the plaintiff to stand. We think the special judge was not required to reconsider the demurrer, but he had all the power and authority to reconsider and change the ruling; which was interlocutory in its nature, as did his predecessor. Nevertheless, it is an authority which should be cautiously exercised. See Peterson v. Hopson, 1940, 306 Mass. 597, 29 N.E.2d 140, 132 A.L.R. 1, Annotation 14.

The Workmen's Compensation Act of 1915, Laws 1915, c. 106, § 76(b), in its definition of 'employee', included minors, but was silent as to whether they were to be considered employees if illegally employed. New Albany Box, etc., Co. v. Davidson, 1920, 189 Ind. 57, 125 N.E. 904, arose under that Act, and it was therein held that a 15 year old boy illegally employed was not deprived of his common law action for injuries, since the employment referred to in the Act meant 'lawful' employment, although it did not expressly say so. Cited with approval in the opinion are cases grounded on the proposition that the right of the employer to pay or of the employee to receive compensation are in their last analysis a matter of contract; an agreement violative of a positive statute cannot become a valid contract; a minor child cannot be deemed to have consented to come under the Act and it, therefore, neither binds the minor nor protects the employer. Mid-West Box Co. v. Hazzard, 1925, 195 Ind. 608, 146 N.E. 420, involved a 15 year old girl illegally employed, and our Supreme Court reaffirmed its holding in the Davidson case.

In 1919, Laws 1919, c. 57, the definition of 'employee' was changed to include only those minors who were 'lawfully' in the service of another, and the same language was reenacted in the amendment of 1929, Laws 1929, c. 172. In cases arising under those amendments it was uniformly held that the compensation law did not govern in cases where a minor was unlawfully employed; see, e. g. In re Stoner, 1920, 74 Ind.App. 324, 128 N.E. 938; Driscoll v. Weidely Motors Co., 1921, 77 Ind.App. 10, 133 N.E. 12; In re Morton, 1922, 79 Ind.App. 5, 137 N.E. 62; and that a minor unlawfully employed could resort to a common law action, Ping v. Indianapolis Soap Co., 1934, 206 Ind. 287, 184 N.E. 903.

In 1933 the legislature made significant changes in the definition of the word 'employee'. The word 'lawfully' was omitted; minor employees were made of full age for all purposes under, in connection with, or arising out of the Act; the benefits payable to a minor under 16 years of age, as was appellant, illegally employed or permitted to work, were doubled; and it was provided that the rights and remedies therein granted to a minor subject to the Act on account of personal injury or death by accident should exclude all...