Downham v. Wagner

• Decision Date: 19 August 1980
• Docket Number: No. 2-280A54,2-280A54
• Citation: 408 N.E.2d 606
• Parties: George H. DOWNHAM and Elizabeth A. Downham, Defendants-Appellants, v. Frank W. WAGNER and Catherine Wagner, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 606

408 N.E.2d 606

George H. DOWNHAM and Elizabeth A. Downham, Defendants-Appellants, v. Frank W. WAGNER and Catherine Wagner, Plaintiffs-Appellees.

No. 2-280A54.

Court of Appeals of Indiana, First District.

Aug. 19, 1980.

Rehearing Denied Sept. 24, 1980.

Frank E. Tolbert and Kim S. Walker, Miller, Tolbert & Wildman, Logansport, for defendants-appellants.

Julian L. Ridlen, Smith & Ridlen, Logansport, Courtney B. Justice, Delphi, for plaintiffs-appellees.

NEAL, Judge.

Defendants-appellants George H. and Elizabeth A. Downham appeal an adverse judgment for personal injury and loss of services in favor of plaintiffs-appellees Frank W. and Catherine Wagner.

We affirm.

Eleven alleged errors are submitted for review; we have consolidated them as follows:

I. Whether the court of origin erred in granting a change of venue from the county;

II. Whether the verdicts of the jury are sustained by sufficient evidence of negligence and proximate cause;

III. Whether the plaintiffs' exclusive remedy was under the provisions of the Workmen's Compensation Act, and whether the trial court erred in refusing to give defendants' instruction No. 4 relative to that question;

IV. Whether the trial court erred in giving plaintiffs' instruction No. 1 relative to duties imposed under the Occupational Safety and Health Act; and

V. Whether defendant George H. Downham was an agent of his wife, defendant Elizabeth A. Downham.

DISCUSSION AND DECISION

Issue I. Change of venue.

This cause originated in the Carroll Circuit Court. More than ten days after the issues were first closed, thus after the time when they could take a change of venue without demonstrated cause, the plaintiffs filed a motion for a change of venue under Ind.Rules of Procedure, Trial Rule 76(8), which alleged as grounds convenience of counsel. It was not verified by the plaintiffs personally, but by counsel, and did not state when the cause for change was first discovered. It was, therefore, clearly inadequate. The Carroll Circuit Court set the motion for hearing. The record recites the following:

"Hearing is had on plaintiffs' motion for change of venue from the county, and now, with the agreement of the parties, said motion is granted."

Thereafter the court listed counties, the parties struck, and the cause was venued to Cass County. The record discloses no objections by the defendants to the change of venue proceedings. By failing to object and by consenting to the change of venue, the defendants have waived any error in that regard. Marsh v. Lesh, (1975) 164 Ind.App. 67, 326 N.E.2d 626.

Issue II. Whether the verdicts of the jury are supported by sufficient evidence of negligence and proximate cause.

The evidence most favorable to the judgment is as follows: Plaintiff Frank W. Wagner was engaged by the defendants to help renovate an obsolete barn to accommodate modern farm machinery. Part of the job required the removal of 11' X 10' sliding doors which were hung from a track. Frank and defendant George H. Downham worked together on this project. They took the doors from the track, leaned them against the barn, maneuvering the bottom of the doors out from the wall about 30 , and, in the words of plaintiff, to a point "where we both figured it would be safe." While George was moving the next-to-last door into a storage place by means of a tractor, gusting wind blew the last door onto Frank and injured him.

The doors on the opposite side of the barn from the removed doors had been open all day. The wind had come up during the day, and George had considered quitting at one time but went ahead with the work. Earlier the doors, upon removal, had been braced by the tractor to keep them from falling. In times past wind had blown these large doors off the track, and the doors had then been secured by concrete blocks on each end to keep them from blowing out. There was evidence that George knew the wind blew through and around the barn with considerable effect on the large surfaces of the doors, and the evidence does not disclose that Frank shared this knowledge.

The pretrial order indicates that the case was tried upon the alleged negligence of the defendants in failing to warn Frank of the danger of the door falling on him, failing to secure the door or brace it, and failing to keep the premises in a safe condition.

The standard of review in appeals questioning the sufficiency of the evidence is firmly established. We will neither weigh the evidence nor judge the credibility of the witnesses, but will affirm the judgment if supported by evidence of probative value. Our role is limited to an examination of the evidence most favorable to the judgment of the trial court and the reasonable inferences that flow therefrom. Foreman v. State ex rel. Department of Natural Resources, (1979) Ind.App., 387 N.E.2d 455.

Little discussion or citation of authority is necessary to demonstrate that the owner and occupier of property owes an invitee the duty of keeping a property in reasonably safe condition. That duty includes warning an invitee of latent or concealed perils such as are not known to the person injured. The status of the invitee is created by his entering the premises with the occupant's express or implied invitation to transact business or to perform some act which is to the commercial advantage of the occupant. Mullins v. Easton, (1978) Ind.App., 376 N.E.2d 1178. A contractor and his employees are invitees, Rink v. Lowry, (1906) 38 Ind.App. 132, 77 N.E. 967; thus, it cannot be seriously argued that Frank Wagner did not attain invitee status.

The event causing the injury was the wind blowing on the large surface of the heavy door and toppling it over onto Frank. There is evidence that George was familiar with the effect of the wind, blowing through and around that barn, upon the doors, but he did not warn Frank nor take steps to secure them. The record does not disclose plaintiffs' knowledge of this. We are of the opinion that there was sufficient evidence of probative value to support the jury's determination.

Issue III. Whether the plaintiffs' exclusive remedy was under the provisions of the Indiana Workmen's Compensation Act, and whether the court erred in refusing to give the defendants' instruction No. 4 relative to that question.

Under this heading the defendants argue that the plaintiff is an employee, and therefore his remedy is under the Workman's Compensation Act, Ind.Code 22-3-1-1 et seq. Where the injured party is an employee, the exclusive remedy is a proceeding before the Industrial Board. Ind.Code 22-3-2-6. However the act does not apply to casual laborers, farm and agricultural employees, or domestic servants. Ind.Code 22-3-2-9. Nor does the act apply to independent contractors. Crabill v. Livengood, (1967) 142 Ind.App. 624, 231 N.E.2d 854.

The proceedings disclose that the defendants raised the issue of employment status in their answer, stating that the trial court had no jurisdiction, and in a motion for summary judgment, which was overruled. In the pretrial order, jurisdiction was conceded but the defendants listed as a contested issue of fact the employment status of plaintiff Frank W. Wagner. The issue was raised again at the close of the plaintiffs' evidence by a motion for judgment on the evidence, and later yet, by a tendered instruction.

The issue of whether a person engaged for services is an employee or a contractor is jurisdictional. In Crabill, supra, 142 Ind.App. at 626, 231 N.E.2d at 855, the court stated:

"We are thus confronted with the sole issue of the relationship between two parties. If appellant was an employee of appellee, the court below would have no jurisdiction to hear this action. If the appellant was an independent contractor or a casual employee the court should retain jurisdiction."

The employment status issue was similarly framed in Harshman v. Union City Body Company, (1938) 105 Ind.App. 36, 13 N.E.2d 353. There the court based its jurisdictional ruling on Ind.Code 22-3-2-6, which made the Workmen's Compensation Act the exclusive remedy for an injured employee.

Where there is a lack of jurisdiction of the subject matter in trial court, that question may be raised at any time before final decision. Where such lack of jurisdiction is apparent but not raised by a party, it is the court's duty sua sponte to raise and determine it. Wedmore v. State, (1954) 233 Ind. 545, 122 N.E.2d 1; Decatur REMC v. PSC, (1971) 150 Ind.App. 193, 275 N.E.2d 857; Keller v. Reynard, (1967) 140 Ind.App. 468, 223 N.E.2d 774. Subject matter jurisdiction cannot be waived nor conferred by agreement. In re City of Fort Wayne, (1978) Ind.App., 381 N.E.2d 1093. The rule applies not only to general subject matter jurisdiction involving the authority of the court to determine the kind of case in question but also the specific jurisdictional averments necessary to maintain the particular proceedings. Squarcy v. Van Horne, (1975) 163 Ind.App. 64, 321 N.E.2d 858.

The defendants allege as error the trial court's refusal to give their instruction No. 4, informing the jury that if they found that Frank Wagner was an employee of the defendants, his sole and exclusive remedy would be under the Workmen's Compensation Act, and in that event they should return a verdict for the defendants. Whether the trial court's refusal to give instruction No. 4 is error depends upon whether the determination of status of plaintiff as an employee or otherwise is a jury question.

The determination of jurisdiction is a matter for the trial court and not the jury. 21 C.J.S. Courts § 112 (1940). See also 7 I.L.E. Courts § 6 (1958). Our research has disclosed no Indiana authority which directly addresses the issue of jury determination of jurisdiction or jurisdictional facts. However, the ready inference to be gleaned from the authorities on jurisdiction cited above is that the court considers jurisdictional facts and determines subject matter jurisdiction,...