Marion County Construction Co. v. Kimberlin

• Decision Date: 24 February 1933
• Docket Number: 14,439
• Citation: 184 N.E. 574,96 Ind.App. 145
• Parties: MARION COUNTY CONSTRUCTION CO. v. KIMBERLIN
• Court: Indiana Appellate Court

184 N.E. 574

96 Ind.App. 145

MARION COUNTY CONSTRUCTION CO. v. KIMBERLIN

No. 14,439

Court of Appeals of Indiana

February 24, 1933

From Marion Superior Court; William A. Pickens, Judge.

Action by Leander F. Kimberlin against Marion County Construction Company. From a judgment for plaintiff, defendant appealed.

Affirmed.

Eph. Inman, Johnson & Zechiel, and Grabill & Ringer, for appellant.

William E. Reilley and John M. Caylor, for appellee.

OPINION

CURTIS, C. J.

This was an action brought by the appellee, Leander F. Kimberlin against appellant, Marion County Construction Company, a corporation, in tort for damages for personal injuries.

The Butler University School of Physical Education and Athletics a corporation, was building a field-house and stadium for the purpose of holding indoor and outdoor athletics and employed the appellant, Marion County Construction Company, to do the excavation work, and employed D. E. Cornelius to build the brick work in connection with the erection of the field-house adjacent to said stadium. The appellee was employed, along with a number of other men, by said D. E. Cornelius, and was on the 6th day of February, 1928, engaged at work in connection with the erection of said field-house. The appellant was at said time excavating said premises and in the process of such excavation used, in connection with its work, dynamite and other explosives to facilitate the excavation. Appellee contends that the appellant carelessly and negligently used said explosives in its work, and that, as a result of an explosion, a large rock or boulder was blown out of the ground in the direction of the appellee and struck him on the head and injured him. Appellee demanded in his complaint forty-five thousand dollars ($ 45,000.00) damages. The case was submitted to a jury. There was a general verdict returned in the sum of four thousand dollars ($ 4,000.00). With the general verdict the jury returned answers to interrogatories. The appellant moved for judgment on the answers to the interrogatories notwithstanding the general verdict, which motion was overruled with an exception to the appellant. The court then rendered judgment upon the general verdict in accordance therewith. A motion for new trial was filed seasonably and overruled with an exception duly taken.

The issues were made on a complaint in three paragraphs, each based upon the same transaction, but presumably upon a different theory; a plea in abatement by the defendant, to which a demurrer filed thereto was sustained; an answer in general denial; and a third amended second paragraph of answer, to which amended second paragraph of answer the appellee filed an affirmative reply. Prior to the trial of the case the plaintiff dismissed his action as to the Butler University School of Physical Education and Athletics and proceeded against the Marion County Construction Company only.

The errors relied upon for reversal are: "(1) The trial court erred in sustaining plaintiff's demurrer to appellant's plea in abatement. (2) The trial court erred in overruling appellant's motion for judgment on the answers to interrogatories. (3) The trial court erred in overruling appellant's motion for a new trial."

The motion for a new trial contained seven causes or grounds, with 15 different specifications under the fifth cause. In its brief, under Points and Authorities, the appellant has discussed only the following propositions, towit: (a) That the verdict of the jury is not sustained by sufficient evidence; (b) that the verdict of the jury is contrary to law; (c) alleged error of the court in giving each of instructions numbered 10 and 12. The rule is so well established that all alleged errors are waived which are not discussed under Propositions, Points and Authorities in the appellant's brief, that we need not cite authority in support thereof. The appellant has therefore waived the first and second errors assigned which relate respectively to the ruling of the court on the plea in abatement and the ruling on the motion for judgment for the appellant on the answers of the jury to the interrogatories. It has likewise waived all of the causes in the motion for a new trial except those above indicated under letters a, b, and c. We will consider only the alleged errors not waived.

Much of the evidence is undisputed and it shows that the appellee was injured on the 6th day of February, 1928, while in the employ of D. E. Cornelius, by a rock or boulder striking him on the head as a result of an explosion of dynamite brought about by the alleged negligence of the appellant, a third party; that on February 8, 1929, the appellee filed a claim with the Industrial Board of Indiana for compensation against his said employer, D. E. Cornelius; that thereafter on May 10, 1928, the appellee and his employer filed with the Industrial Board for its approval an agreement made and entered into by and between the appellee and his employer, the said D. E. Cornelius. By the terms of said agreement it was agreed between said parties that the appellee was entitled to seventy-five (75) weeks' compensation at the rate of sixteen dollars and fifty cents ($ 16.50) per week. That said agreement was approved by the Industrial Board on said date at which time the appellee was paid the sum of $ 280.50, which would be equal to the amount that he would receive for 17 weeks of compensation. D. E. Cornelius, the employer, was ordered to continue said payments at the rate of sixteen dollars and fifty cents ($ 16.50) per week for the remaining fifty-eight (58) weeks in installments of four (4) weeks each, the total amount not to exceed five thousand dollars ($ 5,000.00). Nothing in said written agreement filed with the board mentioned that said payment was to constitute a gift or loan. Other payments were made, consisting of doctor, nurse, hospital, medicine bills and expenses. That thereafter, on July 10, 1928, appellee filed with the Industrial Board an application for the review of said award on account of a change in conditions; that on the 26th day of July, 1928, appellee dismissed said application for review of award; that on the 13th day of February, 1929, he filed his complaint in this cause in the Superior Court of Marion County against the appellant, asking damages for his said injury.

The appellant, in its third amended second paragraph of answer, set forth the entire history of the case leading up to and including the making of the award of compensation to the appellee by the Industrial Board for the injury received by him, the said award being based upon the agreement between him and his employer, and the payment of money to the appellee by the insurance carrier of the employer after said award was made. To this paragraph of answer the appellee filed an affirmative paragraph of reply wherein he alleged that he accepted the sum of money paid him and the money paid for the expenses above enumerated under an agreement between him and the insurance carrier of his employer that it was not paid or accepted as compensation, but that it was paid as a gift or loan and upon the express understanding that it was to be repaid to the insurance carrier.

The appellee does not contend that he can collect from both his employer and also from the appellant. Certainly no such contention, if made, could prevail in the face of the clear language of the statute that "he or they shall not collect from both." See § 13 of the Indiana Workmen's Compensation Act, Acts 1929, p. 536. See also Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company v. Parker (1922), 191 Ind. 686, 132 N.E. 372, 134 N.E. 890, 19 A. L. R. 751.

It is not the purpose, however, of the statute to protect a negligent third party by relieving him from liability from his negligent acts. It does prevent an employee from collecting both compensation and damages. It gives an employer who has paid compensation or who has become liable therefor, the right to collect such compensation from the wrongdoer. The employee may, if he has not accepted compensation, sue the wrongdoer and recover a judgment for all his damages caused by the wrongful act. If he has been awarded compensation he must then elect which he will accept.

In what is commonly called the Keith case, Pittsburgh Cincinnati, Chicago and St. Louis Railroad Company v. Keith (1929), 89 Ind.App. 233, 146 N.E. 872, 874, wherein a petition to transfer was denied April 25, 1929, and which was a case presenting many of the elements of the instant case, this court said: "Ordinarily, when an employer pays an injured employee the amount due under a compensation agreement which has...