Lagler v. Bye

• Decision Date: 09 June 1908
• Docket Number: 6,274
• Citation: 85 N.E. 36,42 Ind.App. 592
• Parties: LAGLER, BY NEXT FRIEND, v. BYE ET AL
• Court: Indiana Appellate Court

85 N.E. 36

42 Ind.App. 592

LAGLER, BY NEXT FRIEND, v. BYE ET AL

No. 6,274

Court of Appeals of Indiana

June 9, 1908

Rehearing denied October 7, 1908. Transfer denied December 9 1908.

From Superior Court of Marion County (70,804); Vinson Carter Judge.

Action by Frank Lagler, by his next friend, against David M. Bye and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

James M. Ogden, Orison H. Hayes and Jacob L. Steinmetz, for appellant.

Elmer E. Stevenson, for appellees.

COMSTOCK, J. Roby, J., absent.

OPINION

COMSTOCK, J.

This action was brought by appellant against appellees to recover damages for injuries received by him while working on appellees' building, which was in course of erection, caused by appellees' failure to build temporary floors as required by statute. (§§ 3859-3862 Burns 1908, Acts 1903, p. 151.)

The complaint is in one paragraph, and alleges, substantially, that on November 12, 1903, the appellees were engaged in the erection of a building five stories in height in the city of Indianapolis, upon real estate owned by them; that the appellant on that day was at work on the iron work of a skylight, which skylight formed a small part of the roof; that on the day mentioned no floor or protection had been put down on the fourth story of the building, underneath the skylight, before the fifth story was commenced, contrary to the provisions of the law of Indiana; that appellant was young and inexperienced, being then of the age of seventeen years; that he was lawfully on the building and was lawfully at work constructing the iron work supporting the skylight; that directly underneath where he was working there was no floor or protection to prevent him from falling five stories to the ground floor; that, without fault on his part contributing thereto, he fell to the ground floor of the building, receiving severe and serious injuries, externally and internally (describing the injuries). Wherefore he demands judgment for $ 25,000. A demurrer for want of facts was sustained to this complaint, and, appellant refusing to plead further, judgment was rendered in favor of appellees for costs.

The action of the court in sustaining said demurrer is assigned as error.

Connecticut, Illinois, Indiana, Massachusetts, New York, Ohio, Pennsylvania and Wisconsin have enacted laws for the protection of employes engaged in the construction of buildings, but in the cases reported under the various statutes the precise question here presented has not been considered.

A penal statute is one which inflicts a forfeiture for transgressing its provisions. Anderson's Law Dict., 763. It involves the idea of punishment, and its character is not changed by the mode in which it is inflicted, whether by civil or criminal procedure. United States v. Chouteau (1880), 102 U.S. 603, 26 L.Ed. 246. Such statute is one which affords a remedy, supplying defects in the common or statutory law. 1 Blackstone's Comm., 86.

"If a statute creates a liability where otherwise none would exist, or increases a common-law liability, it will be strictly construed." 2 Lewis's Sutherland, Stat. Constr. (2d ed.), § 547, and cases cited under note 2.

Section 3859, supra, provides: "That it shall be unlawful for any person, firm or corporation engaged in the erection of any building, three stories in height or more, to begin in the erecting of the third story, or any story above the third story, until a floor or protection has been put down on the second story, and a floor or protection shall likewise be put down for the third story before the fourth story is commenced, and so on successively. A floor or protection shall be put down on the last story erected before beginning work on the walls or materials for the next story above. Such floor or floors shall be made of material fitted together sufficiently close to prevent persons, materials or substances of any kind, falling from above, from going through the same, and such floor or floors shall be sufficiently secure as to prevent their tipping up or giving away under a person or persons walking over same." The third section of the act (§ 3861, supra) provides that any person or corporation violating any of its provisions shall be fined not less than $ 25 nor more than $ 100. The fourth section (§ 3862, supra) provides for enforcing the provisions of the law. The statute answers the definition of a penal statute. It must be construed by the rules of strict construction which generally obtain as to such statutes. The only exception to this rule is in the case of a statute which provides for more than actual compensation, such as double or treble recovery for the commission of some wrong which would have given the party injured a cause of action at common law for actual compensation, such as trespass, negligence and other common-law torts. In such cases the statute allows to the party no cause of action for "a newly created offense." Casey v. St. Louis Transit Co. (1905), 116 Mo.App. 235, 250, 91 S.W. 419.

Statutes may be in part penal and in part remedial. Statutes which provide a penalty recoverable by the party aggrieved are in many cases construed as remedial as well as penal, and, in dealing...