Merker v. Bishop

• Decision Date: 17 December 1913
• Docket Number: No. 8,100.,8,100.
• Citation: 103 N.E. 492,56 Ind.App. 455
• Parties: MERKER v. BISHOP.
• Court: Indiana Appellate Court

56 Ind.App. 455

103 N.E. 492

MERKER

v.BISHOP.

No. 8,100.

Appellate Court of Indiana, Division No. 1.

Dec. 17, 1913.

Appeal from Circuit Court, Posey County; Herdis Clements, Judge.

Action by Jane Bishop, as administratrix of Lawrence W. Bishop, deceased, against George L. Mesker. Judgment for plaintiff, and defendant appeals. Affirmed.Elmer E. Stevenson, of Indianapolis, and Iglehart, Taylor & Heilman, of Evansville, for appellant. Thomas W. Lindsey, Charles P. Bock, and Harry W. Kamman, all of Evansville, for appellee.

HOTTEL, P. J.

This is an action to recover damages for the death of Lawrence W. Bishop, deceased, alleged to have been caused by appellant's negligent failure to furnish said deceased a safe place in which to work. The original complaint was in one paragraph. A demurrer thereto for want of facts was overruled. Appellant then filed a cross-complaint, and an answer setting up a release and settlement. A demurrer for want of facts to the cross-complaint was sustained, and a like demurrer to the answer was overruled. Appellee then filed a second paragraph of complaint, to which a demurrer for want of facts was also overruled. To this paragraph of complaint appellant filed a general denial and an affirmative answer, pleading said release and settlement. A demurrer to said second paragraph of answer was overruled, and appellee then filed a general denial and an affirmative reply in two paragraphs to the second paragraph of answer to each paragraph of complaint. A demurrer was filed to each of said affirmative paragraphs of reply, which was sustained as to the second paragraph and overruled as to the third paragraph. Such third paragraph of reply alleged a want of consideration for the execution of the alleged release. There was a change of venue to Posey county, where there was a jury trial, which resulted in a verdict in favor of appellee for $2,000. Appellant filed a motion for a new trial which was overruled, and judgment was then rendered on the verdict.

The errors assigned and relied on for reversal are: (1) Error “in overruling the demurrer to the complaint”; (2) error in sustaining demurrer to cross-complaint; (3) error in overruling demurrer to second paragraph of complaint; (4) error in overruling demurrer to third paragraph of reply; and (5) error in overruling motion for a new trial.

[1] Appellee contends that the first error assigned questions the sufficiency of the complaint as a whole. It is true that the word “complaint” is used without qualification, but it appears that at the time the first demurrer was filed and overruled and exception taken, there was only one paragraph of complaint on file. Another paragraph, denominated a second paragraph, was afterwards filed. It is the general rule, and one which has been strictly adhered to, that the appellant is confined to his assignment of errors as written, and that each error assigned must be so complete, specific, and certain, as to clearly indicate the identity of the particular ruling upon which the error is predicated. Burns 1908, § 696; Rule 4 of Supreme and Appellate Court rules (55 N. E. iv); Walter A. Wood, etc., Co. v. Angemeier, 99 N. E. 500, and authorities there cited.

[2][3] In the present case there can be no doubt as to the identity of the ruling intended to be assigned as error. Chicago, etc., R. Co. v. Barker, 169 Ind. 670, 83 N. E. 369, 17 L. R. A. (N. S.) 542, 14 Ann. Cas. 375. By such alleged error appellant questions the ruling on the demurrer to the original or first paragraph of complaint. It is urged against this paragraph that the facts alleged therein show that the plaintiff assumed the risk. Each of the paragraphs of complaint alleges facts showing that decedent was employed by appellant to assist in the construction of a four-story building, and that, while working thereon, he fell through an opening in the floor in the fourth story and received injuries from which he afterwards died. The averments of the paragraph in question particularly applicable to the objection urged against it are as follows: “Said floor was left defective, without the knowledge of plaintiff's intestate, in this: *** The planks or boards did not rest on or lap on the joists, and when plaintiff's intestate was in the performance of his duty, looking upward, as he had to do, to said guy rope, and going from one part of said floor to adjust the said guy rope, *** (he stepped on said defective floor, where said boards or planks did not rest on and lap on the joists, and could not be seen by him), *** and the said board or planks tilted, and plaintiff's intestate fell to the floor below, receiving the fatal injury from which he died. *** Plaintiff's intestate had no knowledge of the insecure and unsafe condition of the said floor where he was working, as the same was hidden from view, and the danger was concealed from, and therefore he did not and could not know that said floor was defectivethrough which he fell. ***” These facts were admitted by the demurrer, and are sufficient to negative assumption of risk. Federal Cement Tile Co. v. Korff, 50 Ind. App. 608, 612, 97 N. E. 185, and cases cited; Tennis v. Davis, 46 Ind. App. 436, 92 N. E. 986.

[4] The chief objections urged against the second paragraph of complaint are, in substance, as follows: That it does not show that the decedent had no knowledge of the defective floor, and that appellant had knowledge; that it is alleged that the place appeared safe to the “ordinary observation of man,” but that it is not alleged that it appeared safe to appellee's decedent; that it is nowhere alleged that appellee's decedent did not know of the danger; that it is not alleged that it was necessary for decedent to walk over that part of the floor in which the opening was made through which he fell; that no facts are alleged showing that the appellant knew, or could reasonably have anticipated, that the decedent would go where he might fall through such opening. The averments of the pleading furnish a sufficient answer to these objections. Such averments, important for the purpose of determining the validity of said objection, are, in substance, as follows: On May 29, 1906, and for several months prior thereto, decedent was in the employ of appellant, assisting in the erection of said building, and was employed by appellant to handle a guy rope used in and about the erection of said building, in addition to other general carpenter work. On said day the decedent was at work in the line of his duty on the fourth floor of said building. Prior to said day appellant had placed a temporary floor in the fourth story of said building, which he intended for the use of decedent and other employés while engaged in the work upon such story of said building, and the decedent and others did use and occupy such floor. This floor was about 50 feet above the ground, and between it and the ground there were joists and other beams, used for the purpose of supporting the floors to be laid thereon in the construction of said building. Said fourth floor had been used and occupied by the decedent and other employés of appellant for several days prior to the 29th day of May, 1906, and was during all the time, except the time hereinafter described, safe for such use. Such floor was first laid on joists provided for that purpose, and the boards constituting said fourth floor were first laid so that the ends thereof rested securely upon joists or other boards. Just before noon on the day that the decedent received his injuries, the appellant, desiring to hoist doors, window frames, and other material to such floor, caused such floor to be changed, and a part thereof removed and an opening made therein through which he hoisted such frames and material to such floor. Decedent did not know that such opening had been made, or that any part of said floor had been removed. After such material had been hoisted to such floor appellant negligently relaid that part of such floor, so that the ends of the boards had no secure foundation on which to rest, and so that any weight on the end would cause such boards to tilt up, but so that they “appeared safe to the ordinary observation of man.” Immediately after noon on said day, the decedent in the line of his duty was handling the guy rope to the derrick on the fourth floor, “and in performing his duties under his employment it was necessary to and the decedent did walk around over said floor, and walked on that part of such floor that had been negligently relaid” and left by the appellant unsupported and apparently safe, and the weight of the decedent caused him to fall through the floor, striking the joists below, and to the ground, and so wounded and injured him that he afterwards died. If the floor of the fourth story was put down so as to be safe in the first instance, as this paragraph alleges, and was used by appellant's employés, decedent included, and found to be safe by decedent, as is also alleged, in effect, and was afterwards, by appellant, without decedent's knowledge rendered unsafe by cutting an opening therein, which he later covered by replacing the boards so taken out in such a manner as not to indicate that the floor had been disturbed, but to indicate its original safety, we think it must follow that decedent did not assume the risk of the danger that would necessarily follow from stepping on such relaid boards. The purpose of and necessity for an averment in such cases of facts, showing that decedent did not have knowledge, actual or constructive, of the dangerous condition of his place of work which caused his death, is to avoid the assumption of risk. The averments above indicated in the paragraph of complaint under consideration are, for such purpose, the equivalent of such an averment of lack of knowledge, both actual and constructive. It follows as a reasonable, if not a necessary, inference from such averments that he did not know of the...