General Printing Corp. v. Umback

• Decision Date: 20 April 1935
• Docket Number: 14,755
• Parties: GENERAL PRINTING CORPORATION v. UMBACK, ADMINISTRATRIX
• Court: Indiana Appellate Court

195 N.E. 281

100 Ind.App. 285

GENERAL PRINTING CORPORATION v. UMBACK, ADMINISTRATRIX

No. 14,755

Court of Appeals of Indiana

April 20, 1935

From Allen Superior Court; George W. Leonard, Judge.

Action by Lillian R. Umback, administratrix of the estate of Frank J. Umback, deceased, against the General Printing Corporation under the Employer's Liability Act. From a judgment for plaintiff, defendant appealed.

Affirmed.

James M. Barrett, Jr., Phil M. McNagny, and Leigh L. Hunt, for appellant.

Guy Colerick, and Samuel D. Jackson, for appellee.

OPINION

WOOD, J.

Appellee, as administratrix of the estate of her husband Frank J. Umback, deceased brought suit against the appellant by her complaint, the third paragraph of which is the only one in the record, to recover damages sustained because of his death, as the result of alleged negligent conduct on behalf of appellant.

This paragraph of complaint was predicated upon the "Employer's Liability Law," Acts 1911, p. 145, § 40-1101, Burns 1933, § 10100-1, Baldwin's Ind. St. 1934. The material part thereof charging negligence of appellant is in the following language:

"That during said period the defendant owned and operated as a part of its said manufacturing establishment and printing office said department in which cards and paper and other materials and devices were painted and dyed by means of application thereon of various paints, dyes and chemicals and other materials, the exact chemical analysis and content of which are unknown to this plaintiff.

"That during said months and years immediately preceding December 3, 1928, in said place and workroom owned and operated by said defendant in which plaintiff's decedent was employed, the defendant carelessly and negligently and unlawfully failed to provide proper and suitable ventilation and means of ventilation and ventilating devices to free the air and atmosphere in said workroom and at the place where plaintiff's decedent was required by his employment to work; so that as a consequence of said negligence and carelessness on the part of the defendant the place where said plaintiff's decedent, as aforesaid, was required to and did work was dangerous, unsafe, unlawful, and deadly to persons required to work therein, including this plaintiff's decedent.

"That the chemicals, dyes and paints used by this plaintiff's decedent and his co-employes were of such a nature and character that they were applied by sprays, brushes and other devices, as a necessary consequence of which the air became laden with said chemicals, paints and dyes; and the plaintiff's decedent, working therein, came in contact with the same by means of the same being applied to his body internally and externally in the proper pursuit of his employment and the discharge of his duty as such employe of such defendant.

"That the plaintiff's decedent had no means of knowing, until his injury, as hereinafter more particularly described, that said place was not a safe workroom or place in which to work and was not properly and carefully ventilated by the defendant and that the place in which he was required so to work was dangerous and deadly to him; and that the defendant knew, or by the exercise of reasonable care and caution should have known, that said workroom in which said decedent was required by said defendant to work was not properly ventilated and that said workroom continued to be dangerous and deadly to this plaintiff's decedent.

"Plaintiff further says that by virtue of the unlawful and unsafe condition of the workroom in which plaintiff's decedent was so employed, and as a direct and proximate result thereof, the body of plaintiff's decedent became injured, afflicted by means of said dyes, chemicals and paints coming in contact therewith; that as a direct and proximate result of the carelessness and unlawfulness and negligence of the defendant, as herein set forth and alleged, plaintiff's decedent became injured and afflicted and consequently disabled about December 3, 1928, and languished from the direct and proximate result of the damage done to him by said carelessness, negligence and unlawfulness until the 15th day of February, 1929, at which time he died as a result thereof.

"That the life of the plaintiff's decedent was taken by this defendant by its carelessness, negligence and unlawfulness in causing said workroom where said plaintiff's decedent was required to work, as aforesaid, to be dangerous, unsafe, unlawful and deadly and by failing to provide plaintiff's decedent with a safe place in which to work and to provide proper ventilators, proper ventilation and lawful ventilating devices to be installed therein, and by unlawfully permitting said workroom to become filled and continue to be filled and laden with paints, chemicals and dyes, of a dangerous and deadly nature, all through the defendant's own carelessness and negligence and unlawfulness, as herein particularly described."

Appellant challenged this complaint by demurrer, alleging two causes therefor: First, that it did not state facts sufficient to constitute a cause of action; second, that the court had no jurisdiction over the subject-matter of the alleged cause of action. These two causes of demurrer were supported by several paragraphs of memoranda. This demurrer was overruled.

Appellant filed an answer is three paragraphs, the first was a general denial, the second pleaded the two-year statute of limitation, the third alleged that the decedent died as the result of an accident arising out of and in the course of his employment by appellant; that both appellant and decedent had accepted the provisions of the Workman's Compensation Law of the state of Indiana, and therefore the Allen Superior Court No. 2 did not have jurisdiction of the cause; that it was vested exclusively in the Industrial Board of Indiana. The appellee filed a reply in general denial to the second and third paragraphs of answer.

On these issues the cause was submitted to a jury for trial, which returned a verdict for appellee, on which judgment was rendered in her favor. Within proper time appellant filed a motion for a new trial, which was overruled. The only cause therefor discussed by appellant and requiring our attention is that the verdict of the jury was contrary to law.

Appellant appeals assigning as errors for reversal, that the court erred in overruling its demurrer to appellee's third paragraph of complaint, and that the court erred in overruling its motion for a new trial.

These two errors present but a single question for our consideration, namely: was the accident and injury described in the third paragraph of complaint, and as shown by the evidence, most favorable to appellee, an accident arising out of and in the course of decedent's employment by appellant, so that the only remedy which appellee had to recover damages was granted by and confined solely to the provisions of the Indiana Workman's Compensation Act, Acts 1915, p. 392, § 9451, Burns 1926, § 40-1206, Burns 1933, § 16382, Baldwin's 1934. We therefore consider the errors together.

The provisions of the "Indiana Workman's Compensation Act," supra, together with any amendments made thereto and in force previous to February 15, 1929, are controlling insofar as they determine any of the respective rights of the parties to this action. Paragraph (d) of § 76 of said act as amended by Acts of 1919, p. 175, § 9521, Burns 1926, § 40-1704, Burns 1933, provides that, "'injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of the employment and shall not include a disease in any form except as it shall result from the injury." It is appellee's contention that her decedent died as the result of a disease brought about because of the negligence of appellant, and not because of a disease resulting from an injury by accident arising out of and in the course of his employment by appellant; that therefore her remedy for relief did not lie with the Industrial Board, but that she was compelled to resort to the common law as supplemented by the Employer's Liability Act, 1911, see § 40-1111, Burns 1933, § 10100-11, Baldwin's Ind. St. 1934, for redress of the wrongs suffered by her.

Neither the sufficiency of the facts alleged in the third paragraph of complaint to state a cause of action, nor the sufficiency of the evidence to sustain the verdict of the jury is questioned by appellant.

The complaint alleges that the death of appellee's decedent was the proximate result of appellant's negligent failure to furnish him a safe place in which to work as provided by §§ 40-1013 and 40-1011, Burns 1933, §§ 10085 and 10072, Baldwin's Ind. St. 1934. It is upon the theory of disease resulting because of the negligent failure of appellant to comply with positive statutory provisions regulating the construction, equipment, and ventilation of buildings and work rooms, where certain kinds of occupations and industries are conducted and carried on, of which negligent failure the decedent had no knowledge and which negligence was the proximate cause of his illness and ultimate death.

Section 7 of the Employer's Liability Act, being § 40-1107, Burns 1933, § 10100-7, Baldwin's Ind. St. 1934, provides that: "All questions of assumption of risk, negligence or contributory negligence shall be questions of fact for the jury to decide, unless the cause is being tried without a jury, in which case, such questions shall be questions of fact for the court."

Appellant urges with much force, that the decedent's death was the result of an injury by accident arising out of and in the course of his employment and that therefore any right or remedy which the appellee had was under § 6 of the Workman's...