Harshman v. Union City Body Co.

• Decision Date: 09 March 1938
• Docket Number: 15860.
• Citation: 13 N.E.2d 353,105 Ind.App. 36
• Parties: HARSHMAN v. UNION CITY BODY CO.
• Court: Indiana Appellate Court

13 N.E.2d 353

105 Ind.App. 36

HARSHMAN v. UNION CITY BODY CO.

No. 15860.

Appellate Court of Indiana, in Banc.

March 9, 1938

Nichols & Nichols, of Winchester, and Clarence E. Benadum and Ralph V. Cecil, Jr., both of Muncie, for appellant.

James L. Murray, of Indianapolis, for appellee.

DUDINE Presiding Judge.

Appellant instituted this cause against appellee. The complaint is in three paragraphs. Appellee filed a demurrer to each paragraph of complaint. The demurrers were sustained, and appellant having declined to plead further, judgment was rendered for appellee.

Each paragraph of complaint alleged that appellant while employed by appellee to operate a punch press machine in appellee's factory, and in the course of operating said machine, suffered an injury to his right hand which necessitated the amputation of said hand and caused appellant severe pain, loss of work and wages, medical expenses, and reduced earning capacity. Each paragraph of complaint prayed damages for said injuries.

The theories of said paragraphs of complaint, as stated by appellant in his brief, are as follows:

"(1) The first paragraph of complaint charges that appellee failed and neglected to equip the punch press machine upon which appellant worked, with a reasonable safety device, and that appellee well knew that persons working upon said machine, without said safety device, were likely to receive great bodily injury; that knowing the premises and knowing that a personal injury would result therefrom appellee carelessly, negligently, wrongfully and unlawfully failed, neglected and refused to equip said machine with a safety device or safety guard; that appellee, knowing the unsafe condition of said punch press machine, ordered appellant to work upon the same; that appellant was injured while working in obedience to the commands, orders and directions of appellee. * * *

"(2) The second paragraph of complaint charges that the machine whereon appellant worked was defective and unsafe that it would make a double stroke at times; that appellant had no way of knowing when said double stroke would be made that appellee carelessly, negligently, wrongfully, unlawfully and knowingly permitted said machine to become dangerous and unsafe and to become, be and remain defective and in a dangerous and unsafe condition; that appellee then and there well knew and then and there had knowledge of the fact that said machine would repeat said dangerous, downward stroke, by reason of its defective condition, at times when appellant had no way of knowing and did not know when, how and under what circumstances said double stroke would occur.

"(3) The third paragraph of complaint charges that the appellee carelessly and negligently failed to provide a proper safety device and guard for the punch press machine upon which appellant was injured, and, like the other two paragraphs, charges that appellee's carelessness and negligence was the sole proximate cause of appellant's injuries."

Appellant contends further, "Each paragraph of complaint states a cause of action under the common law and under the Employers' Liability Act of the State of Indiana [Burns' Ann.St.1933, § 40-1101 et seq.], therefore the court erred in sustaining appellee's demurrer to appellant's complaint and to each paragraph." The complaint does not allege that the employment was unlawful or that either the employer or employee rejected the provisions of the Workmen's Compensation Act, Burns' Ann. St.1933, §...