Evansville Furniture Co. v. Freeman
| Decision Date | 20 May 1914 |
| Docket Number | No. 8287.,8287. |
| Citation | 105 N.E. 258,57 Ind.App. 576 |
| Parties | EVANSVILLE FURNITURE CO. v. FREEMAN. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Warrick County; Ralph E. Roberts, Judge.
Action by Karl Freeman, by his next friend, against the Evansville Furniture Company. Judgment for the plaintiff, and defendant appeals. Affirmed.Elmer E. Stevenson, of Indianapolis, and Iglehart, Taylor & Heilman, of Evansville, for appellant. John R. Brill and Frank H. Hatfield, both of Evansville, for appellee.
This is an appeal from a judgment in appellee's favor in a suit for personal injuries, received by him while in the employ of appellant and operating a ripsaw alleged to have been improperly guarded at the time of his injury.
The action was originally brought in the Vanderburgh superior court, and afterwards venued to the Warrick circuit court. The complaint filed in the latter court shows, among other things, that appellee was 19 years of age when injured; that the appellant is a corporation engaged in the manufacture of furniture; that in its business it operated a ripsaw which, when in operation, ran at a high and dangerous rate of speed, and was dangerous to the hands and limbs of the person operating it; that appellee, under his employment with appellant, run and operated such ripsaw from February 18, 1910, until March 2, 1910, when he was injured. The negligence charged is, in substance, as follows: The defendant, at the time of the plaintiff's injury, neglected and failed to properly guard said ripsaw, as required by the statutes of Indiana, in this, to wit: The front part of the guard used by defendant on said saw was old, worn, and broken, and the set screw thereon used for adjusting the guard to or near the teeth of said ripsaw was broken, and would not work or hold. Such ripsaw could have been properly guarded without in any manner interfering with its efficiency for the purpose for which it was used and intended. The heel or back part of said guard was old and broken, and by reason thereof the guard was easily thrown out of position and out of line with the teeth of the saw. At the time of plaintiff's injury such guard, by reason of said defects, moved up and down and back and forth while the saw was in operation, and left it unguarded and dangerous to the hands of the operator running it. The front or movable part of the guard, by reason of said defects, moved up and back a distance of four inches from the teeth of such ripsaw. The defendant had notice and knowledge of said defects, and especially of the improper and broken guard above described, but wholly failed to remedy the same, though it promised plaintiff to do so.
The allegations as to the manner in which appellee received his injury are substantially as follows: Plaintiff's foot slipped on the floor where he was standing, causing him to lose his balance. The front part of said guard was then back and out of position, leaving the teeth of the saw exposed and unguarded as aforesaid, and plaintiff, in an attempt to catch and save himself from falling while so unbalanced, threw out his left hand, and it struck the exposed teeth of such unguarded ripsaw, and such saw so cut and lacerated the forefinger of his left hand that it had to be amputated. If said ripsaw had been properly guarded, plaintiff's hand would have hit the guard, instead of the teeth of such saw. Plaintiff's injuries were received by reason of the negligent acts of the defendant as above set out, and not otherwise.
A demurrer to the complaint for want of facts was overruled. A trial by jury resulted in a verdict for appellee for $2,000. Appellant's motion for a new trial was overruled and judgment rendered on the verdict.
The errors assigned and relied on for reversal are: (1) “The superior court of Vanderburgh county erred in overruling the demurrer to the complaint.” (2) “The court erred in overruling the motion for a new trial.”
[1] It does not appear from the record that the complaint therein set out was ever filed in the superior court of Vanderburgh county. The first entry of the proceedings had in the Vanderburgh superior court, as shown by the transcript thereof filed in the Warrick circuit court, is an entry ordering the defendant “to file its answer to the complaint on or before Thursday, April 21, 1910.” Such transcript then sets out an order showing the filing of a demurrer to the complaint, and order showing the overruling of such demurrer, another order to answer the complaint on or before May 19, 1910, and an order showing the filing of such answers. Such transcript contains no further reference to, or identification of, any complaint. As the record comes to this court, it would be impossible for us to say that the complaint to which, a demurrer was filed in the Vanderburgh superior court was, in fact, the complaint filed in the Warrick circuit court, which is the one contained in the record in this court. No question is therefore presented by the first error assigned.
However, in the discussion of several of the rulings presented by its second assignment of error, appellant assumes that the complaint proceeds on a given theory, which it now seeks to have this court adopt. Whether or not such rulings constitute error depends on whether this court adopts such theory. It therefore becomes important to determine on what theory the complaint proceeds. Appellant contends that it proceeds on the theory that appellant discharged the statutory duty which required it to furnish such guard in the first instance, but afterwards allowed it to become defective, and promised appellee to make the necessary repairs, and failed to do so. It is then insisted that, such being its theory, it should have averred that appellee relied on appellant's promise to make such repairs, and should also have averred that, after appellant acquired knowledge of such defects and needed repairs, a sufficient length of time elapsed to afford it opportunity to remedy the defects. It is urged that the instructions ignore such theory, and that, in enumerating the elements necessary to a recovery by appellee, they omit said elements, which it claims, were necessary to a recovery under such theory.
[2] The theory of a pleading must be determined by all of its averments and by its general scope and tenor, rather than by any isolated averment. Modlin v. State, 175 Ind. 511, 515, 94 N. E. 826, Ann. Cas. 1913C, 669;Oölitic Stone Co. v. Ridge, 169 Ind. 639, 83 N. E. 246.
[3] When so judged, there can be no doubt but that the negligence intended to be charged, and, in fact, charged, in this complaint is the violation by appellant of the statutory duty which required it to properly guard the saw in question, rather than a violation of a common-law duty to make needed repairs according to its promise.
[4] The complaint was sufficient on this theory, and, even if it could be said that it is ambiguous and proceeds upon two theories, this court will adopt that theory which was adopted by the trial court and by the parties in the trial of the cause. Foundry & Machine Works v. Myers, 15 Ind. App. 385, 44 N. E. 193;Chicago, etc., R. Co. v. Vester, 47 Ind. App. 141, 148, 93 N. E. 1039;Southern R. Co. v. Crone, 51 Ind. App. 300, 306, 307, 99 N. E. 762.
[5] That the case was tried on the theory that the complaint charged a violation of the statute which required appellant to properly guard the saw in question is evidenced by the entire record, including the instructions tendered by appellant. It is argued, however, that where, as in this case, the complaint proceeds on the theory that a proper and efficient guard has been furnished in the first instance, and the negligence relied on consists in the failure to keep such guard in repair and in a proper state of efficiency, instructions should not set out the statute in question and indicate to the jury that a finding by it that the appellant had failed to comply with the provisions of such statute requiring it to properly guard the saw in question would authorize recovery; that the instructions should distinguish between failure to properly guard in the first instance and a failure to keep a proper guard in a proper state of repair and efficiency. While there is a distinction between the failure to guard in the first instance and a failure to keep in repair and in a proper state of efficiency a proper guard that had been once furnished, the negligence in each case consists in the violation of the statutory duty which requires the particular machine or appliance to be properly guarded. Paul Mfg. Co. v. Racine, 43 Ind. App. 695, 702, 88 N. E. 529.
It is true that it is incumbent on the part of a person who is injured on account of the bad repair of such guard and its inefficiency on account thereof for the purpose for which it was intended to prove that the appellant had knowledge of its bad repair and inefficiency, but once this knowledge is shown any further use or operation of the machine or appliance so improperly guarded is as much a violation of the statute as a failure to furnish a proper guard in the first instance. Proof of time for repair is not necessary in a case where the master permits the operation of the appliance after he has knowledge that its guard has become inefficient. The master must not operate such machine, in the first instance, without a proper guard, and, in the second instance, upon information and knowledge that the proper guard once furnished has become improper and inefficient, he must cease to operate such machine or appliance until the efficiency of its guard is restored or a new and proper guard supplied. Any other construction of the statute would render it of little or no avail for the purpose it was intended. Such construction is in complete harmony with the holding of this court in the case of Paul Mfg. Co. v. Racine, supra. As was said in that case: ...
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