Hogle v. Reliance Mfg. Co.

• Decision Date: 25 May 1943
• Docket Number: No. 16952.,16952.
• Parties: HOGLE v. RELIANCE MFG. CO.
• Court: Indiana Appellate Court

113 Ind.App. 488

48 N.E.2d 75

HOGLE

v.RELIANCE MFG. CO.

No. 16952.

Appellate Court of Indiana, in Banc.

April 30, 1943.

Rehearing Denied May 25, 1943.

Appeal from Dubois Circuit Court; Flavian A. Seal, Special Judge.

Action by Donald A. Hogle against Reliance Manufacturing Company and others for personal injuries resulting from being struck by tear-gas projectile or bomb discharged into crowd of workers, picketers, and sympathisers of striking workmen. From a judgment for defendants, the plaintiff appeals.

Reversed with instructions to overrule demurrer to the first, second, and third paragraphs of amended complaint.McDonald & McDonald, of Princeton, for appellant.

Ortmeyer, Bamberger and Ortmeyer, of Evansville, for appellee.

ROYSE, Judge.

This action originated in the Daviess Circuit Court, where, on February 25, 1938, appellant brought his complaint against appellee and others for damages. The venue was thereafter changed to the Dubois Circuit Court. After such change was completed and more than two years after the action accrued, appellant filed an amended complaint in three paragraphs. Appellee demurred to each paragraph of appellant's amended complaint, and the trial court sustained such demurrers. Appellant refused to plead further. The court entered judgment that appellant take nothing and that appellee recover its costs.

The only error assigned here is the ruling of the trial court on the demurrers.

The original complaint alleged, in substance, that appellee was a corporation of the State of Indiana engaged in the manufacture of clothing and garments, and operated a plant in Washington, Daviess County, in said State; that in the fall of 1937 appellee and its employees were engaged in a labor dispute, as a result of which the Company closed down its factory, and a large number of employees engaged in a strike and picketed the place of business of said Company; that appellee had in its employ a co-defendant, Deskin M. Pasley, who was the superintendent in charge of the operation of said factory, and who undertook to load out the goods manufactured by said defendant and stored in the warehouse of said defendant; that the employees of said defendant protested said action and picketed said warehouse; that during all of said time the defendant Fitzgerald was the duly elected, qualified and acting Sheriff of said Daviess County; that the defendants, Reliance Manufacturing Company and Pasley, requested and procured from said defendant Fitzgerald the appointment of thirty-five persons who were appointed and deputized to act as deputy sheriffs of said county, including the defendant Shaw; that these persons went upon the grounds, premises and warehouse of defendant Company to guard and protect the property of said defendant, and to assist the Company in the loading and removal of the goods, wares, merchandise and chattels of said defendant Company; that said premises and property were not at said time nor was any part of them at any of the times herein mentioned in the custody of the law; that for the performance and discharge of the acts and duties assigned to and requested of said agents, Sheriff and deputy sheriffs, the defendants Reliance Manufacturing Company and Fitzgerald armed said men or deputies with firearms, tear-gas guns, ammunition, gas projectiles and missiles; that on the 16th day of November, 1937 this appellant was in a group of picketers and sympathisers of the employees of said Company, and that at about the noon hour he was sitting on a rail of a railroad switch track near, but not upon, the premises of said defendant company, and that he started to rise to go away from said premises and as he was turning to leave the defendant Shaw came out of said warehouse onto the platform thereof and fired one of the tear-gas guns so furnished, as aforesaid, into the crowd of workers, picketers and sympathisers so assembled off of the premises of said defendant Company; that the tear-gas projectile or bomb so discharged therefrom struck the appellant in the back of his head, penetrating his skull and exploded therein, thereby fracturing his skull and destroying the brain tissue so that a portion of appellant's brain oozed therefrom; that he was thereby rendered unconscious; that as a result of the injuries received by appellant he was confined in the hospital for more than three weeks and his entire nervous system was subjected to great shock; that a portion of his skull was necessarily removed, and that by reason of said condition his ability to work and labor has been greatly impaired; that prior to the injury complained of he was a strong able-bodied man, earning and capable of earning as a truck driver and laborer the sum of five dollars a day; that since said injuries he has been unable to perform such labor; that he is uneducated and not qualified to perform any other labor or engage in any other occupation; that he is married, has two children, a boy of nine years and a girl of four years, and has no other means of supporting himself and family except by his manual labor; that by reason of said injuries he has become liable for large amounts for medical care, nursing and hospital expense in the total amount of $500.

In the second paragraph of original complaint it is alleged the defendants entered into a conspiracy to intimidate such employees from lawfully and peaceably picketing said premises; that in the furtherance of said conspiracy the defendant Shaw did the acts alleged in the first paragraph of complaint.

To this complaint appellee filed its answer in general denial after the venue had been changed from the Daviess Circuit Court to the Dubois Circuit Court. On January 2, 1940, appellant filed his amended complaint in three paragraphs in the Dubois Circuit Court. The first paragraph of amended complaint is as follows:

“The plaintiff for his first paragraph of amended complaint, complains of said defendants, and each of them, and says that said defendant Reliance Manufacturing Company is a corporation of the State of Indiana and at all times herein mentioned has been engaged in the business of owning and operating manufacturing plants for the maufacture of clothing and garments and in connection with its said business owns and operates a garment manufacturing plant in the City of Washington in the State of Indiana and a shipping plant and warehouse situate in Daviess County in the State of Indiana, immediately outside the corporate limits of the city of Washington;

“Plaintiff says further that on, towit, the 15th day of November, 1937, and at all times herein mentioned, the defendant Deskin M. Pasley, was then and there the superintendent of said defendant company in charge of the operation of its said factory and ware-house, and managed, directed and controlled, for and in behalf of said defendant Reliance Manufacturing Company, all of its property, operations and business in Daviess County, Indiana.

“That on the 16th day of November, 1937, said defendants, Reliance Manufacturing Company and Deskin M. Pasley requested and directed said defendant Fitzgerald to select and procure some thirty-five other persons, including said defendant Shaw, to, and they did, on the morning of November 17, 1937, go upon the grounds and premises, and into said warehouse of said defendant Company, for and in its behalf as its agents and servants, in pursuance of a common purpose and design, to guard and protect the property and employes of said defendant company, to keep other persons from entering thereon, and assist in the loading and removal of certain goods, ware, merchandise and chattels of said defendant Company from said ware-house and from said County; that said premises and property, were not, at said time, nor was any part of them, at any time herein mentioned, in the custody of the law; that for the performance and discharge of the acts and duties assigned to and requested of said agents, sheriff and deputy sheriffs, said defendants Reliance Manufacturing Company and Fitzgerald took onto said company's said premises a supply of tear-gas guns, ammunition, gas projectiles and mis sles; and placed the same in the care and custody of said defendant Shaw and instructed him how and when to use the same; in the course of his duties and employment and in the discharge of said common purpose and design aforesaid;

“That on said 16th day of November, 1937, this plaintiff at about the noon hour was sitting with a group of other persons on the rail of a railroad switch track near, but not upon, the premises of said defendant Company and started to rise to go away from said premises; that as he arose, and was turning to leave, said defendant Shaw, acting for and in behalf of his codefendants, and each of them, and believing that their common purpose of guarding and protecting the property and employes of said defendant and of preventing other persons from entering upon said premises of the defendant Reliance Manufacturing Company could be best served thereby, came out of said warehouse, onto the platform thereof, and wantonly and recklessly and in utter disregard of the life, limb and safety of all such assembled persons, including this plaintiff, fired one of the tear-gas guns so furnished him, as aforesaid, into the group of persons so assembled off the premises of said defendant company, and the tear-gas projectile so discharged therefrom, struck this plaintiff in the back of his head, penetrating his skull and exploded therein, thereby fracturing the skull of this plaintiff and destroying the brain tissue so that a portion of the brain of plaintiff oozed therefrom; that plaintiff was thereby rendered unconscious and the gas contained in said bomb was thereby released so that it was impossible for sometime for persons to get to the plaintiff to render him first aid; that as a result of said injuries said plaintiff was confined to the hospital for more than three weeks, during a part of...