Kerns v. Garrigus, 19385

• Decision Date: 20 November 1959
• Docket Number: No. 19385,19385
• Citation: 130 Ind.App. 133,162 N.E.2d 313
• Parties: Harry KERNS, Darrell Kerns, Doris Kerns and Nellie Kerns, D/B/A Tri-K Mining Company, Appellants, v. Edgar GARRIGUS, Appellee.
• Court: Indiana Appellate Court

Page 313

162 N.E.2d 313

130 Ind.App. 133

Harry KERNS, Darrell Kerns, Doris Kerns and Nellie Kerns, D/B/A Tri-K Mining Company, Appellants, v. Edgar GARRIGUS, Appellee.

No. 19385.

Appellate Court of Indiana, In Banc.

Nov. 20, 1959.

Rosenfeld & Wolfe, Howard T. Batman, Terre Haute, for appellants.

Berry, Kincade & Allen, Terre Haute, for appellee.

MYERS, Presiding Justice.

This is an action commenced by appellee as plaintiff in the Vigo Superior Court, Room No. 2, to recover damages for personal injuries allegedly caused by the negligence of the appellants who were doing business as a coal mining company.

The complaint alleged in brief that on February 3, 1958, appellee was instructed to pick up a load of coal in his truck and deliver the same to a customer. While he was engaged in loading the coal into the truck from a coal car at appellants' coal yard, he slipped and fell because the coal was frozen and gave way. As a result he suffered personal injuries. Negligence was charged in that appellants failed to supply appellee with a saft place to load the coal and failed to give notice that the coal was frozen and would thereby slip off the car. Damages were asked in the sum of $75,000.

An answer in abatement was filed to the effect that at the time and place involved appellee was an employee of appellants; that the injuries complained of occurred by an accident and arose out of and in the course of appellee's employment; that neither appellee nor appellants had elected not to accept the provisions of the Workmen's Compensation Act of Indiana, Burns' Ann.St. § 40-1201 et seq.; that appellee was not a casual employee; that the claim, if any, was within the exclusive jurisdiction of the Industrial Board of Indiana. Appellee filed a reply in general denial to the plea.

Upon these issues trial was held and the matter taken under advisement by the court. Subsequently, and before the entry of final judgment, appellants filed a motion to stay and suspend proceedings on the ground that the court should take no further action until the jurisdictional question presented had been adjudicated by the Industrial Board. They then filed a motion to reopen the issues for the introduction of additional evidence. These motions were overruled and the court entered judgment abating the action at appellee's costs. Appellants filed their motion for new trial in which they say that the decision of the court was not sustained by sufficient evidence and was contrary to law and specify other errors. This motion was overruled and the appeal followed.

After the transcript and appellants' brief were filed, appellee filed his motion to dismiss the appeal on the basic principle of law that a party cannot appeal from a judgment which he has expressly or impliedly requested the court to enter. Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, § 2125; McMahan v. McMahan, 1895, 142 Inc. 110, 40 N.E. 661; Shannon v. Abshire, 1924, 81 Ind.App. 299, 141 N.E. 621. This is the sole question to be decided by this court.

In their respective motions filed prior to entry of judgment, and in their brief in opposition to the motion to dismiss this appeal, appellants argue in essence that in spite of the fact that they received a favorable judgment by the trial court, they have been aggrieved and therefore judgment should be reversed. They contend that they have been aggrieved in that appellants, before and at the trial of this cause, were represented by an attorney who was employed by a casualty company which insured appellants against public liability; that such counsel undertook to defend the action primarily in favor of its own interests, and that the casualty company's interests and those of the appellants were adverse in that the plea in abatement filed by the casualty company's counsel, having been upheld, subjected appellants to 'potential' liability for payment of benefits under the Workmen's Compensation Act should such proceedings take place. They argue that in such event they would be deprived of any remedy before the Industrial Board due to the fact that the question of employment had been decided adversely to them and would be thereby binding on the Board. If an award were made, appellants argue they would have to pay it out of their own pockets because they were...