George B. Limbert & Co. v. Waznitsky
| Decision Date | 08 December 1921 |
| Docket Number | No. 23760.,23760. |
| Citation | 191 Ind. 419,133 N.E. 128 |
| Court | Indiana Supreme Court |
| Parties | GEORGE B. LIMBERT & CO. v. WAZNITSKY. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.
Action by Kasimir Waznitsky against George B. Limbert & Co. to recover damages for personal injuries. Judgment for the plaintiff, and defendant appeals. Affirmed.
A. P. Twyman and R. M. Royce, both of East Chicago, for appellant.
Ibach, Gavit & Stinson and C. B. Tinkham, all of Hammond, for appellee.
This was an action by the appellee against the appellant to recover damages for personal injuries sustained while at work as a molder in appellant's foundry. On a former trial the court directed a verdict in favor of the defendant (this appellant), which was reversed on appeal. Waznitski v. George B. Limbert & Co., 66 Ind. App. 382, 118 N. E. 317
[1][2] The alleged injuries were sustained March 3, 1913, the original complaint in this action was filed July 22, 1913, and the amended complaint, on which the case was first tried and which remains in the record as the first paragraph of the complaint, was filed February 8, 1915. After the reversal of the first judgment the appellee, under leave of court, filed an “additional and second paragraph” of complaint. Appellant insists that in permitting it to be filed the trial court abused its discretion. It does not appear from anything in the record what counsel for the appellant said or did in the way of objecting when this “second paragraph” was filed, and the statement of the record in appellant's brief does not show that it reserved an exception at the time. A mere recital in the assignment of errors that appellant excepted cannot take the place of an order book entry to that effect. Burck v. Davis, 35 Ind. App. 648, 655, 73 N. E. 192;Pottlitzer v. Citizens' Trust Co., 60 Ind. App. 45, 60, 108 N. E. 36; Ewbank Manual (2d Ed.) § 137. Neither is an objection to what the trial court did in such a matter available unless the record shows the grounds of objection that were stated in that court at the time it made its ruling. A party who complains that the discretion of the trial court was abused is limited, on appeal, to the objections which he presented to the court at the time it made the ruling complained of. Therefore no question is presented as to the alleged error in overruling appellant's objections to the filing of the additional and second paragraph of complaint.
Appellant filed an answer of general denial, and also a paragraph of answer stating:
“That the cause of action sued upon, in plaintiff's second paragraph of complaint, did not accrue within two years before the bringing of plaintiff's said action.”
A demurrer to this paragraph of answer was sustained, and appellant excepted. But since it appears by the uncontradicted evidence of all the witnesses examined by both parties, testifying in relation to the issues joined on other pleadings, that whatever cause of action the appellee may have had was one which accrued when he was injured on March 3, 1913, any error in sustaining the demurrer must be treated as harmless, unless filing the second paragraph of complaint on September 22, 1918, amounted to beginning a new action, not commenced within two years after the injury was received.
The amended complaint in one paragraph, filed less than two years after the alleged cause of action accrued, received a construction on the former appeal. The Appellate Court then held that, “eliminating matters of surplusage,” said amended complaint charged that on March 3, 1913, appellee was in the employ of appellant, and was working for it under circumstances to which the Employers' Liability Act of 1911 applied (Acts 1911, c. 88, p. 145, Burns' 1914, § 8020a et seq.), and that, while so employed and so working, he was instructed by his foreman, to whose orders he was bound to conform and did conform, and who understood the danger involved, which was unknown to the appellee, to take a hand ladle and fill with melted iron some holes in a casting which had been examined by the foreman, and that he followed such instructions, relying on the superior knowledge of the foreman, and believing therefrom that the holes were in proper condition to receive the molten metal, and in the exercise of due care poured the metal into the holes, when dampness therein caused an explosion by which he was injured wholly by reason of the negligence of appellant and its foreman in requiring him to pour such metal into the holes when they had not been properly prepared for its reception. Waznitski v. George B. Limbert & Co., 66 Ind. App. 382, 118 N. E. 317.
[3] The construction thus given to the amended complaint was the basis for a judgment of reversal in the case cited, and is therefore binding upon the parties as the law of the case in a subsequent appeal. Cleveland, C., C. & St. L. R. Co. v. Blind, 186 Ind. 628, 630, 117 N. E. 641.
[4] The “additional and second paragraph of complaint,” filed after the cause was reversed on the first appeal, was obviously drawn in an attempt to “eliminate matters of surplusage,” and to state more clearly and concisely those facts which ...
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