Ideal Laundry & Dry Cleaning Company v. Mackowiak

• Decision Date: 25 April 1924
• Docket Number: 11,679
• Parties: IDEAL LAUNDRY AND DRY CLEANING COMPANY v. MACKOWIAK
• Court: Indiana Appellate Court

143 N.E. 614

83 Ind.App. 1

IDEAL LAUNDRY AND DRY CLEANING COMPANY v. MACKOWIAK

No. 11,679

Court of Appeals of Indiana

April 25, 1924

Rehearing denied June 25, 1924. Transfer denied April 22 1925. [Copyrighted Material Omitted]

From St. Joseph Superior Court; Chester R. Montgomery, Judge.

Action by Hattie Mackowiak against the Ideal Laundry and Dry Cleaning Company. From a judgment for plaintiff, the defendant appeals.

This action was instituted by Hattie Mackowiak (hereinafter designated "the plaintiff") by her next friend Martin Mackowiak, against the Ideal Laundry and Dry Cleaning Company to recvoer damages for personal injuries alleged to have resulted from the negligence of the defendant. In so far as necessary to an understanding of the matters here involved, the material averments of the complaint are as follows:

"That the defendant owned and operated a laundry in which laundry machinery was used; that on Sept. 24, 1919, the defendant by an agreement in writing employed the plaintiff to work in its laundry in the capacity of a shaker and folder; that the plaintiff continued to work as a folder of articles for a period of about six weeks; that at the end of that period the defendant, by its foreman, and in violation of the agreement and contrary to law, directed and ordered the plaintiff to operate a mangle; that the mangle is a machine used by the defendant in its laundry to iron articles and consists together with other parts, of a projecting shelf in the nature of a table, a revolving cylinder or cylinders which pressed articles against a heated surface with great force in order to iron the articles which were fed into the machine and under the cylinder or cylinders; that it was necessary that the person operating the mangle should feed into it the articles to be ironed and the process was attended by great danger to the operator, especially to the young and inexperienced, in that there was likelihood of getting the hands caught in the mangle, which was well known to the defendant; that without any knowledge of the dangerous character of the work she was performing, and obedient to the directions of the defendant's foreman, she operated the mangle for a period of three or four weeks, and until Nov. 26, 1919, at which time she was aged 14 years and 4 months; and that the defendant knew her age.

"That on the last named date the plaintiff was operating the mangle without knowledge of how to avoid the danger incident to the operation thereof; that on account of her youth and inexperience she was likely to have her hands caught in the mangle and thereby crushed and burned; that on the last-named date the defendant employed the plaintiff to operate the mangle; that the employment was in violation of § 5 of the act of the General Assembly of the State of Indiana, entitled 'An Act concerning the employment of children, and providing penalties', approved March 6, 1911; that after the employment, the defendant carelessly, negligently and unlawfully put the plaintiff at the work of operating the mangle, without giving her any instructions whatsoever for the operation of the mangle or how to avoid injury thereby; that while the plaintiff was unlawfully operating the mangle by feeding towels therein her left hand caught in the edge, or became entangled in the wring of a towel, and was drawn into the machine, thereby crushing and bruising all the fingers and the thumb of that hand and burning the hand and fingers; that by reason thereof she has ever since been unable to use the hand, thumb and fingers, was thereby made a permanent cripple, has suffered great pain and anguish, and has been damaged in the sum of $ 10,000."

The defendant filed a pleading which it denominated a "plea in abatement." The following are the material averments of the first paragraph of the so-called plea in abatement:

"That on September 24, 1919, the defendant employed the plaintiff in the capacity of a shaker and folder; that the employment was lawful; that at all times mentioned in the complaint the relation of employer and employee, within the meaning of the compensation law, existed between the parties; that neither party had taken any step to acquire exemption from the provisions of the compensation law; that the plaintiff's injury described in her complaint arose out of and in the course of the employment; and that the court has no jurisdiction of the subject of the action but that jurisdiction thereof is vested exclusively in the Industrial Board."

The second paragraph of the so-called plea in abatement avers the same facts as the first, with respect to the employment, the relation of the parties and the compensation law; and then adds the following:

"That the plaintiff wrongfully, unlawfully and contrary to the directions, instructions and orders of the defendant, upon her own initiative, without any necessity or direction so to do, undertook and assumed to operate a certain flat-work ironer, without the knowledge or consent of the defendant; that while wrongfully, unlawfully and against the express orders of the defendant, the plaintiff was attempting to operate the ironer, she suffered the injury described in her complaint; that she suffered the injury solely because of her wrongful, disobedient and unlawful conduct in total and reckless disregard of express orders and admonitions of the defendant not to approach or attempt to operate the ironer; that her injury arose out of and in the course of her employment and solely because of her wilful failure or refusal to obey the instructions and directions of the defendant; and that she cannot maintain her action herein because the court is without jurisdiction in the premises."

A demurrer to each paragraph of the so-called plea in abatement was sustained. A demurrer to the complaint was overruled.

The memorandum accompanying the demurrer specifies three particulars wherein the complaint is insufficient for want of facts, viz.: (1) That the complaint fails to aver that the defendant employed or permitted the plaintiff to operate any machine or machinery named in § 5 of the statute mentioned in the complaint; (2) that the complaint fails to negative the presumption that the plaintiff's remedy, if any, is by virtue of the compensation law; and (3) that to construe § 5 of that statute to mean that it shall be unlawful to employ or permit any child under the age of sixteen years to operate laundry machinery of any kind, would bring the statute, to that extent, in conflict with the Fourteenth Amendment to the Federal Constitution and in conflict with § 23 of Art. 1, and § 20 of Art. 4, of the Constitution of Indiana.

The defendant filed answer in two paragraphs, the first being the general denial. The second paragraph contains the same averments embodied in the so-called plea in abatement, with the following additional matter injected:

"That prior to the employment the plaintiff presented to the defendant a certificate from the school official showing her age, date and place of her birth, and that she had passed the fifth grade in the common schools; and procured from the defendant a signed statement showing that the defendant was about to employ her, and the place and character of the proposed employment."

On motion of the plaintiff, the second paragraph was stricken.

The trial resulted in a verdict for the plaintiff in the sum of five thousand dollars. The defendant's motion for a new trial was overruled and its motion to arrest judgment was overruled. Judgment was rendered accordingly.

The transcript contains three bills of exceptions of the following import:

Bill No. 1 shows the instructions given. Bill No. 2 shows that in the course of the defendant's examination of the prospective jurors touching their competency, certain objections were sustained as follows:

"Frank Emerson, who was subsequently accepted as a juror, was asked:

"Q. Now, if it should develop in the course of the trial, as it doubtless will, that the plaintiff has sustained an injury while she was employed and it is of such a nature, the circumstances are such that it should be settled by the Workmen's Compensation Board, would you if the court so instructed you--(Objection sustained).

"Q. Have you filed any claim under the workmen's compensation act? (Objection sustained.)

"Albert Slusser was asked: Q. Have you any prejudice against the workmen's compensation act? Ans. Yes, sir. (Objection sustained after answer given.)

"The defendant was not thereafter permitted to question prospective jurors concerning any possible prejudice they might have against the workmen's compensation act."

Bill No. 3 shows the following:

"(1) That Nellie C. Warren testified as a witness for the plaintiff; and that, on cross-examination, in response to questions put to her by defendant's counsel, she testified as follows:

"Q. Was this particular machine that you saw there a calender roll, this mangle at the Ideal, or rather did it have calender rolls in it, the machine that you saw down there and have described? A. I have called it a mangle all the time. Q. It didn't have any calender rolls in it, did it? A. Had these long rolls rolling over this heated surface. Q. But they weren't calender rolls, were they? A. Yes. Q. They were? A. Yes."

"(2) That after the plaintiff had rested and the defendant had entered upon the task of adducing its evidence, one Antoinette Crockett was called as a witness for the defendant and on direct examination was asked, among other questions the following: Q. Do you use calender rolls in your laundry? (The plaintiff objects to the question for the reason that it calls for the conclusion of the witness and is leading.)

"The defendant offers to prove that if the witness is permitted to...