Indiana Mfg. Co. v. Coughlin

• Decision Date: 14 February 1917
• Docket Number: No. 9148.,9148.
• Citation: 65 Ind.App. 268,115 N.E. 260
• Parties: INDIANA MFG. CO. v. COUGHLIN.
• Court: Indiana Appellate Court

65 Ind.App. 268

115 N.E. 260

INDIANA MFG. CO.

v.COUGHLIN.

No. 9148.

Appellate Court of Indiana, Division No. 1.

Feb. 14, 1917.

Appeal from Circuit Court, Miami County; Joseph N. Tillett, Judge.

Action by William H. Coughlin, administrator of the estate of Leo Coughlin, deceased, against the Indiana Manufacturing Company; Elbert Walker Shirk, receiver. Judgment for plaintiff, and defendant appeals. Affirmed.Albert H. Cole and Charles A. Cole, both of Peru, for appellant. Jabez T. Cox and Claude Y. Andrews, both of Peru, for appellee.

HOTTEL, J.

This is an appeal from a judgment of the Miami circuit court in appellee's favor for $2,500, in an action brought against appellant to recover damages for the death of Leo Coughlin.

On and prior to November 8, 1912, the time of the occurrence complained of, the Indiana Manufacturing Company was a corporation which employed more than five men, among whom was appellee's decedent, Leo Coughlin, and, on said day, he, and others, were engaged in installing a telephone system in appellant's factory. While engaged in such work, attempting to pass one of the wires of said system over a pipe some 10 or 12 feet above the floor of said factory, decedent came in contact with a coupling of appellant's metal line shaft that was being rapidly revolved, and he thereby received injuries which resulted in his death.

The complaint is in two paragraphs, to each of which appellant filed a separate motion to require appellee to state the facts necessary to sustain certain conclusions stated therein and indicated in such motion. These motions were overruled. A demurrer addressed to each paragraph of the complaint and a motion for new trial, filed by appellant, were likewise overruled. These several rulings are respectively challenged by appellant's assignments of error, and are relied on for reversal.

The averments common to each of the paragraphs and necessary to an understanding and disposition of the questions presentedby the rulings, supra, are, in substance, as follows:

Appellant, for the purpose of transmitting power to its machinery, maintained in its factory a metal line shaft about 40 feet long and 3 inches in diameter. Said shaft was in sections, which were joined together by a certain coupling, consisting of two metal discs, 8 inches in diameter, held together by four bolts, extending through the faces of said discs and within one inch from the periphery thereof. Said sections of shaft when thus coupled together formed a continuous shaft. The nuts, and the thread ends of said bolts extending beyond said nuts, projected from the faces of said coupling about 2 inches. At said times said shafting and coupling could have been guarded so as to protect from injury the employés of defendant who worked about the same, without interfering with the efficient use for which they were designed and used by defendant.

The first paragraph then proceeds, in substance, as follows: Decedent, on said day, and for some weeks prior thereto, “had been employed by and was working for defendant at said factory; that in the course of said employment and in compliance with instructions given by said defendant corporation to *** said decedent, said decedent was, on said day, engaged in putting up a system of telephone wire in defendant's said factory; that said defendant directed that said wire be placed on the joists and ceiling of said factory room through a course and along said line shaft within a space of approximately two feet over said shaft coupling; that said employment, so directed, brought *** decedent alongside of and over said coupling; that to comply with the orders and directions of said defendant then and there given to *** decedent it was necessary for said decedent to and he did go close alongside of and over said shaft coupling;” that, while decedent was so employed, and in close proximity with said shaft, defendant caused said shaft and coupling to revolve with great force and speed, viz. 100 horse power, at 200 revolutions per minute; that while decedent was so employed, there was a defect in said machinery and in said coupling, which was known to defendant, to wit, the absence of a guard over said coupling; that defendant had neglected and failed to place and maintain any guard thereover; that said shaft and coupling were at the time in question unguarded; “ that said unguarded shaft coupling was at a place where workmen of said defendant including *** decedent, were, at the time of the placing of said telephone wires, required to go;” that in consequence of said defect and of the negligence of defendant in failing to guard said coupling, decedent, on said day and while in the employ of defendant, was injured by coming in contact, in the manner aforesaid with said shafting and coupling, etc., from which injuries he died.

The second paragraph, in addition to the averments common to each paragraph, indicated supra, avers that said coupling “was unguarded so as to protect from injury the employés of defendant corporation who worked about the same”; that decedent was on the 8th day of November, 1912, and for some months prior thereto had been, in the employ of defendant corporation at said factory; “ that in the course of said employment and in pursuance to the instructions of said defendant *** decedent was on said day engaged in putting up a system of telephone wires in defendant's said factory in the vicinity of said shaft coupling;” that in said work, defendant corporation employed one Benedict, who had charge of the construction of said telephone system with authority from said defendant to give orders and directions as to the placing of the wire; that decedent, while engaged as aforesaid, was subject to the order and direction of said Benedict in the construction of said telephone system at the time of the injury; that, when said coupling was being revolved by defendant with great force and speed, in the exposed and unguarded condition aforesaid, “said Benedict carelessly and negligently ordered and directed *** decedent and others with whom he was working to place a line of telephone wire on the joists and ceiling of said factory room from the westward to the eastward side of said room, and thence southward across said line shaft and over said shaft coupling; that decedent complied with said order and proceeded with the execution of said work as ordered, and in so doing his body was brought close alongside of and over said exposed shaft coupling when the same was in motion and speed” and injured, etc.; “ that said injury to said decedent was caused directly by the obedience of said decedent to the order of said Benedict.” (Our italics.)

The portions of each paragraph of the complaint which we have italicized, supra, are attacked by appellant's said motions as being conclusions, which should have been supplemented by an averment of the facts necessary to their support. It is insisted, in effect, that inasmuch as the courts have always jealously guarded the right of a defendant to be apprised of the facts relied on as establishing liability against him, and inasmuch as the Legislature, by the act of March 15, 1913 (section 343a, Burns 1914), makes any conclusions found in a pleading the equivalent of a statement of the facts upon which it is based, subject only to the right of the party affected thereby, by written motion to have such facts stated, that the overruling of such a motion is necessarily a harmful and prejudicial error.

[1] Generally speaking, appellant's contention is correct. However, in this connection, it should be remembered that it is only those conclusions which are “necessary to the sufficiency of the pleading” that are affectedby said act. As to such conclusions, if the facts upon which they are based do not sumciently appear from the pleading when read in its entirety, the overruling of a motion to make the pleading state them will constitute prejudicial and reversible error. Premier Motor Mfg. Co. v. Tilford (1916) 111 N. E. 645, 647;S. W. Little Coal Co. v. O'Brien, 113 N. E. 465.

[2] In its said motion, appellant states as grounds therefor that to support the conclusions involved in the first italicized averment of the first paragraph, supra, the facts showing the nature of the employment and the instructions therein referred to should have been stated. Granting this to be true, such facts appear in the averment which immediately follows (quoted supra).

[3] So with the second and third italicized portions of the first paragraph, supra, if regarded as conclusions, they, in so far as they are essential to the sufficiency of such paragraph, are justified by the other facts averred in such pleading.

It is charged in said motion against the language of the second paragraph first italicized supra, that to sustain such conclusions it was necessary to allege facts showing that employés of appellant worked about the shaft coupling referred to, the class of employés who did such work, and the nature of the work they were performing when about such shaft coupling.

[4] The requirements of the statute upon which this paragraph is based (sections 8020a-8020k, Burns 1914) were met by alleging facts showing that decedent was ordered by appellant to work at a place made dangerous by its negligence, and that while performing such work in obedience to such order and by reason of such conformance thereto, decedent received the injury that resulted in his death, and any averment, by way of conclusion or otherwise, with reference to other employés being required to work at such place was not essential to the sufficiency of the pleading.

It will be observed that said paragraph alleges the facts showing the character of the work which appellant required of decedent, the nature of the order and directions given to decedent by appellant, and that in conforming to such order and directions decedent was required to be, and was in fact, brought in close proximity to...