Hatton v. Hodell Furniture Co.

• Decision Date: 28 January 1920
• Docket Number: No. 10115.,10115.
• Citation: 125 N.E. 797,72 Ind.App. 357
• Parties: HATTON v. HODELL FURNITURE CO.
• Court: Indiana Appellate Court

72 Ind.App. 357

125 N.E. 797

HATTON

v.HODELL FURNITURE CO.

No. 10115.

Appellate Court of Indiana, Division No. 1.

Jan. 28, 1920.

Appeal from Circuit Court, Shelby County; Alonzo Blair, Judge.

Action by William F. Hatton against the Hodell Furniture Company. From a judgment for defendant, plaintiff appeals. Reversed, with instructions.

Isaac Carter, Walter Keese, and Isley & Israel, all of Shelbyville, for appellant.

Edmund K. Adams and Herbert C. Jones, both of Shelbyville, for appellee.

REMY, P. J.

Appeal from a judgment for appellee in an action instituted by appellant to recover damages for personal injuries alleged to have been sustained while in the employ of appellee. The sole error assigned and relied upon for reversal is the action of the court in overruling the motion for a new trial; and the questions presented by appellant for our consideration relate to the alleged error of the trial court in the giving of certain instructions.

It is urged by appellee that appellant's bill of exception is not in the record, and for that reason no questions are properly before this court for review.

[1] It is provided by section 660, Burns 1914, that when the record does not otherwise show the decision or grounds of objection thereto, the party objecting must, within the time allowed by the court, present to the trial judge a proper bill of exceptions, which, if correct, the judge shall promptly sign and cause to be filed, but that the “delay of the judge in signing and filing the same shall not deprive the party objecting of the benefit thereof.” It appears from the record that the time fixed by the trial court for filing expired May 6, 1917, and that the bill was not actually signed by the judge and made a part of the record until August 23, 1917. It also appears that corrections to the bill as first prepared were required by the trial court; and it is contended by appellee that these corrections were made after the time for filing the bill had expired, and that therefore the bill as finally prepared was not presented within the time fixed by the court. The record, however, does not show that the corrections were in fact made after the time for filing the bill had expired. On the contrary, the trial judge, in his certificate to the bill of exceptions, states that on April 12, 1917, and within the time allowed by the court, appellant “presents this his bill of exceptions.” We must therefore hold that the bill of exceptions is properly in the record.

The complaint is in two paragraphs, each of which charges, in substance, that, at the time of the injury complained of appellee was, and now is, a corporation engaged in the manufacture of furniture in the city of Shelbyville, and having in its employ in the operation of its factory more than five men; that appellant was employed in said factory as a common laborer, and while so engaged was ordered and directed to assist in moving a certain truckload of lumber into a dry kiln in appellee's factory; that while he was in the act of assisting with such work a heavy piece of lumber fell from the load and struck him on the head, to his resulting serious injury. In addition to the allegations found in both paragraphs of complaint, the first paragraph alleges facts showing that the injuries complained of were caused by the negligence of appellee in furnishing appellant an unsafe place in which to work; while in the second paragraph facts are specifically averred showing that appellant received the injuries while he was working in obedience to orders of appellee's superintendent, to whose orders he was at the time bound to conform, and that his said injuries were caused by the negligence of said superintendent in ordering appellant to assist in the said work. Each paragraph is based upon the Employers' Liability Act of 1911 (section 8020a et seq., Burns 1914), and neither of said paragraphs states a cause of action under the common law.

The evidence is not in the record, but a recital incorporated in a bill of exceptions, containing the instructions, shows that the undisputed evidence was that at the time appellant received the injuries complained of, and for some years before, appellee “was a corporation organized under the laws of the state of Indiana, and engaged in the business of manufacturing furniture out of wood and other material; and during all of said time had employed more than five persons in such business.” The record also shows that “on and during the trial” appellant asserted and claimed that his complaint proceeded upon the theory that appellee was liable under the Employers' Liability Act of 1911, but that it was appellee's contention that the complaint charged a...