Deep Vein Coal Co. v. Dowdle

• Decision Date: 14 May 1941
• Docket Number: 27535.
• Citation: 33 N.E.2d 981,218 Ind. 495
• Parties: DEEP VEIN COAL CO. v. DOWDLE.
• Court: Indiana Supreme Court

33 N.E.2d 981

218 Ind. 495

DEEP VEIN COAL CO. v. DOWDLE.

No. 27535.

Supreme Court of Indiana

May 14, 1941

[Copyrighted Material Omitted]

Appeal from Dubois Circuit Court; Eldo W. Wood Judge.

Morton C. Embree, of Princeton, W. D. Hardy, of Evansville, and Gerald Hall, of Princeton, for appellant.

McDonald & McDonald, of Princeton, and R. W. Armstrong, of Evansville, for appellee.

FANSLER Judge.

In 1919 the appellee began this action by filing his complaint against Frank Buchanan to recover damages resulting from an assault and battery. Shortly thereafter the Princeton Coal Company was made a party defendant. The complaint was amended to allege that Buchanan was the agent and servant of the Princeton Coal Company and was acting as its servant at the time the assault and battery was perpetrated. The record shows that the Princeton Coal Company appeared to this action and defended. There was a trial and judgment for the plaintiff. The Princeton Coal Company perfected a term-time appeal and gave bond to pay the judgment if the appeal should be unsuccessful. The judgment was reversed, and the opinion of the court discloses the substantial facts concerning the assault and battery and the allegations by which the Princeton Coal Company was charged with responsibility for the tort under the respondeat superior doctrine. See Princeton Coal Co. v. Dowdle, 1924 194 Ind. 262, 142 N.E. 419. The Deep Vein Coal Company was not a party to the action at that time and was not mentioned in the pleadings or in the evidence as disclosed by the briefs.

In 1925, after the reversal of the cause, the venue was changed to the Pike Circuit Court, where it was tried and the jury disagreed. In 1928 the venue was changed to the Dubois Circuit Court, where, in 1929, in the same cause, which was entitled upon the court's docket 'Robert L. Dowdle vs. Frank Buchanan Princeton Coal Company,' the plaintiff filed his second amended complaint, entitled 'Robert L. Dowdle vs. Frank Buchanan, Deep Vein Coal Company, otherwise known as Princeton Coal Company.' In this complaint it is alleged that the Deep Vein Coal Company is a corporation, and engaged in mining, producing, and marketing coal, under the name and style of 'Princeton Coal Company'; that, for the purpose of evading liabilities imposed by law, to the employees and persons engaged in the operation of the coal mine for injuries sustained by negligence, and to fraudulently relieve the defendant, Deep Vein Coal Company, of such liability, the company and certain of its stockholders and agents entered into a fraudulent conspiracy; that they entered into a pretended lease whereby the Deep Vein Coal Company pretended to lease to a corporation designated as the Princeton Coal Company, the coal mine and all the property and equipment used in the operation thereof; that at the time of the lease there was no such corporation as the Princeton Coal Company; that shortly thereafter the Deep Vein Coal Company and its officers and agents caused articles of incorporation to be executed for the incorporation of the Princeton Coal Company, with authority to issue capital stock in the sum of $5,000; that the mine and mining property leased to the Princeton Coal Company was of the value of $100,000; that the Princeton Coal Company was at all times insolvent and irresponsible, and never at any time had any property subject to execution; and that by the terms of the lease the Princeton Coal Company never would be in a position to acquire any assets; that in truth and in fact the Deep Vein Coal Company actively controlled and managed the operation of the mine through its agents, and hired and discharged employees, directed the mining of coal and sold the output and collected the proceeds, and fully and completely managed, directed, and carried on the operation of the mine; that on the 4th day of November, 1918, the defendant, Deep Vein Coal Company, had in charge of the operation of the mine the defendant, Frank Buchanan, and in the commission of the assault and battery Buchanan was acting in the line of his duties as the agent of the Deep Vein Coal Company.

By this complaint the plaintiff for the first time sought to assert facts charging the Deep Vein Coal Company with responsibility for the assault and battery under the respondeat superior doctrine. It is noted that this amended complaint was filed more than ten years after the assault and battery was committed, and that there is no attempt to allege concealment of the fact that the Deep Vein Coal Company was in fact operating the mine, and in fact the employer and principal represented by Buchanan, or any other facts which would prevent the running of the two-year statute of limitations.

The Princeton Coal Company filed a motion to strike out this second amended complaint upon the ground that no relief or judgment of any character was asked against that company, and a motion to require that the second amended complaint be separately docketed for the same reason. These motions were never ruled upon, but the Princeton Coal Company does not appear to have taken any further action or to have filed any further pleadings in the case.

Thereafter a re-amended complaint was filed, to which a demurrer by the Deep Vein Coal Company was overruled, and answers were filed. There was a motion to dismiss the cause for want of prosecution, which was sustained, but afterwards, upon motion, it was reinstated upon the docket, and in April, 1938, the record shows that the plaintiff by his attorneys, and the Deep Vein Coal Company, by its attorneys, appeared and the cause was submitted to a jury for trial. After the evidence was heard, the cause was dismissed as to the defendant, Frank Buchanan.

Within ten days after the filing of the amended complaint which first named the Deep Vein Coal Company, that company appeared specially and filed a plea in abatement in which it alleged that the plaintiff now sought for the first time to make it a party defendant; that it is an Indiana corporation; that its principal office and place of business is in the city of Terre Haute; that its officers have been continuously in the State of Indiana and amenable to the service of process; and that no summons against the Deep Vein Coal Company in this action has ever been served upon any of its officers or agents or any person authorized to transact business for it; and that it has not been constructively served with process. A demurrer to the plea in abatement was overruled, and the plaintiff answered the plea in general denial, and the issue was submitted to the court for trial without the intervention of a jury.

There was...