Diamond v. Cleary
| Decision Date | 19 June 1928 |
| Docket Number | 12,816 |
| Citation | 162 N.E. 372,88 Ind.App. 518 |
| Parties | DIAMOND v. CLEARY |
| Court | Indiana Appellate Court |
Rehearing denied November 13, 1928. Transfer denied January 31, 1929.
From Lake Superior Court; Maurice E. Crites, Judge.
Action by Samuel Cleary against Jacob Diamond. From a judgment for plaintiff, the defendant appeals.
Affirmed.
William J. Whinery, for appellant.
Tinkham & Galvin, for appellee.
OPINION
This action was brought by appellee, claiming to be an employee of appellant, to recover damages on account of alleged personal injuries.
The appellant was, on the day of the alleged injury, and for some time prior thereto had been, operating a fruit and vegetable store in the city of Hammond, Indiana. In the complaint it was alleged, inter alia, that the appellant was operating said store on February 11, 1924; that on said date the appellee was an employee of appellant; that on divers occasions previous to said date, appellee had been in the employment of appellant, at said store, as a general helper in loading, unloading, and in transporting such fruits and vegetables as were handled at said store; that in the conduct of his said business, the appellant was accustomed to, and did, purchase fruits and vegetables on the wholesale market in Chicago, Illinois, and did cause the fruits and vegetables so purchased to be transported from place of purchase to his place of business in Hammond, Indiana, by truck, which the appellant owned and operated for that purpose; that on said date, and for some time prior thereto said truck was, and had been, in the control of a son of appellant, Al Diamond, and said son was during said time driving said truck and using the same to transport fruits and vegetables from Chicago Illinois, to Hammond, Indiana; that when, during said time, said Al Diamond would make a trip to Chicago to haul back a load of such fruits and vegetables, he was usually, with the knowledge and consent of the appellant herein, accompanied by one of appellant's employees, who rode with him on said truck, and assisted in the loading and unloading of said truck, and who also rendered such other service as might be required of a helper on said truck, all under the direction of said Al Diamond.
It is alleged that on February 11, 1924, Al Diamond drove said truck to Chicago for the purpose of bringing to Hammond a truck load of vegetables and fruits, the property of appellant; that on said occasion, the appellee, as an employee of appellant, went with said Al Diamond as a helper and did assist, work and serve as a helper on said truck on said day; that said truck was driven to South Water street in Chicago, and there loaded with fruits and vegetables, the property of appellant, the appellee assisting in said work of loading said truck; that on the return to Hammond, it became necessary for said truck to pass under a certain viaduct, and, on arriving at said viaduct, the appellee was ordered and directed by said Al Diamond, he then and there being the agent of appellant and the driver of and in charge of said truck, to get out of the cab of said truck and to climb up the side of the load on said truck and observe, or see, whether there was sufficient clearance to permit said truck to pass, with its then load, under said viaduct; that appellee started to obey said order and, while he was climbing up the side of said truck, in his endeavor to get to a point from which he could determine whether the said viaduct would probably clear said truck with its then load, said driver negligently, suddenly, and without warning to appellee, started said truck and swerved the same to the right, whereby the appellee was caught between said load and certain iron supports of said viaduct and his body crushed, squeezed, and twisted between said load and the said iron supports of said viaduct, and that he was then and thereby injured. The injuries claimed by appellee to have been then and there received are set forth in detail, and it is then alleged that the appellant had not complied with the Workmen's Compensation Act of this state , by insuring his liability as an employer in any corporation, association, or organization authorized to write and carry such insurance in this state, nor had he presented to the Industrial Board proof of his own financial ability to pay compensation when due, and that he had not filed with the Industrial Board any evidence of his compliance with said act as to the matter of carrying such insurance, and that he was not operating his said business under and according to the provisions of said act. Damages were asked in the sum of $ 25,000.
Appellant first moved that the appellee be required to make the said complaint more specific in certain designated particulars, which motion was overruled. Appellant next demurred to said complaint "for want of facts," and "for want of jurisdiction," which demurrer was also overruled. Appellant then answered by general denial, and the cause was submitted to a jury for trial, which resulted in a verdict and judgment for appellee.
Appellant first complains of the action of the court in overruling his motion to make said complaint more specific. As to such rulings it was said in Haskell, etc., Car Co. v. Trzop (1920), 190 Ind. 35, 128 N.E. 401: "The question of granting or refusing such motions is largely within the discretion of nisi prius courts, and their action on appeal will be upheld unless it appears that the complaining party has suffered from such ruling." The appellant has not shown that he was harmed by the ruling complained of, and under the rule as above announced, we cannot say that the trial court erred.
It is next urged that the court erred in overruling the demurrer to said complaint. Under this assignment appellant insists that as between the parties hereto, under the averments of the complaint, the court had no jurisdiction of the subject-matter; that under the averments of the complaint, the only remedy of the appellee was by an application to the Industrial Board for an adjustment of compensation. We cannot concur in this contention. It is, among other things, provided in § 68 of the Workmen's Compensation Act (§ 9513 Burns 1926), that: "Every employer under this act shall...
To continue reading
Request your trial