Goshen Milling Company v. Bailey

• Citation: 114 N.E. 869,186 Ind. 377
• Decision Date: 24 January 1917
• Docket Number: 22,704
• Parties: Goshen Milling Company v. Bailey
• Court: Supreme Court of Indiana

114 N.E. 869

186 Ind. 377

Goshen Milling Company v. Bailey

No. 22,704

Supreme Court of Indiana

January 24, 1917

Rehearing Denied June 8, 1917.

From Kosciusko Circuit Court; Francis E. Bowser, Judge.

Action by Amanda Bailey, administratrix of the estate of Chester Bailey, deceased, against the Goshen Milling Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

L. L Burris, Deahl & Deahl, Frazer & Frazer and Van Fleet, Hubbell & Dinnen, for appellant.

Perry L. Turner, L. W. Royse and Jackson & Fitzgerald, for appellee.

OPINION

Erwin, J.

Amanda Bailey, administratrix of the estate of Chester Bailey, her deceased husband, brought this action against the Goshen Milling Company, a corporation, to recover damages for the benefit of herself as widow and her infant daughter, Evelyn Marie Bailey, resulting from the death of Chester Bailey by reason of the alleged negligence of appellant. A trial by jury resulted in a verdict and judgment for appellee in the sum of $ 5,000.

Jurisdiction of this cause is in this court for the reason that appellant contends that the Employers' Liability Act of 1911 (Acts 1911 p. 145, § 8020a-8020k Burns 1914) is unconstitutional as being in violation of the provisions of § 1 of the fourteenth amendment to the Constitution of the United States, and of § 23, Art. 1, of our State Constitution. This question has already been decided by this court against the contention of appellant in Vandalia R. Co. v. Stillwell (1913), 181 Ind. 267, 104 N.E. 289, Ann. Cas. 1916 D 258; Terre Haute, etc., R. Co. v. Weddle (1915), 183 Ind. 305, 108 N.E. 225, and Kingan & Co. v. Clements (1915), 184 Ind. 210, 110 N.E. 66.

Appellant also contends that § 7 of the Employers' Liability Act (§ 8020g Burns 1914) constitutes an unwarranted infringement upon the power of the judiciary and is void. This court has held otherwise. Kingan & Co. v. Clements, supra.

Error is alleged here upon the overruling of appellant's motion to make more specific, and in overruling its demurrers to the three paragraphs of the amended complaint.

The first paragraph of the complaint in question alleges, in substance, that on July 25, 1911, appellant was a duly organized corporation and was the owner and engaged in the care, operation and management of its factory and building in Goshen, Indiana, used for the manufacture of flour, and also in the transmission of electricity; that the factory had a cupola which extended six feet above the slanting roof of part of the building; that certain electric wires were attached to wires coming from the cupola, and ran across the roof at a distance of about three feet above the roof; that defendant engaged in transmitting or permitted to be transmitted over such wires electricity of high and dangerous voltage; that decedent was employed by appellant and was engaged in painting the above cupola under and about such electric wires and was liable to come in contact therewith, which appellant knew or should have known; that appellant negligently and carelessly failed to provide full and complete insulation around and about such wires such as would protect persons coming in contact therewith from injury by the electric current; that the wires were covered with some substance for the purpose of insulation but it had become old, rotten, decayed, worn, and out of repair, so as to be worthless as insulation; that at all times herein mentioned appellant carelessly and negligently maintained such wires in the above condition; that on said date decedent, while engaged in painting the roof and cupola beneath and about such wire, under direction of appellant, came in contact therewith solely by reason of appellant's negligence; that the 4,500 volts of electricity passing over the wire entered the body of decedent causing his death; that decedent was twenty-three years of age, strong, healthy and robust; concluding with other averments as to appellee and decedent's child

The second paragraph alleges, in addition to the averments of the first, that appellant employed in its business more than five persons.

The third paragraph alleges facts similar to the above, except that it is based upon the common law and alleges, in substance, that it was the duty of appellant in maintaining the wire and permitting the same to be used upon its premises for the purposes aforesaid, and particularly in maintaining or permitting it to be maintained where appellant's employes would be likely to come in contact with the same, to completely and properly insulate it and inspect it from time to time and to cause and require the same to be properly thoroughly and completely insulated and inspected from time to time, to the end that any defect in the insulation thereof might be discovered and remedied, and to maintain and keep such insulation in good repair, so as not to endanger the life and limb of its employes in the due performance of their duty; and it was appellant's duty to warn its employes of any unusual or extraordinary danger which they might encounter in their employment by reason of the defective condition of such wires. It is then properly averred that appellant negligently and carelessly failed to perform any such duties and that by reason thereof decedent was killed by reason of the defective condition of the insulation without...