Merritt v. Johnson

• Decision Date: 10 January 1961
• Docket Number: Civ. A. No. IP 59-C-168.
• Parties: J. B. MERRITT, Plaintiff, v. Earle JOHNSON, d/b/a Earle Johnson Engineering Company, George L. Fowler, Merko Dotlich, et al. d/b/a Dotlich Brothers Company and Dotlich Brothers Construction Machinery Rental Company, Defendants, Michigan Mutual Liability Company, Impleaded Defendant. Earle JOHNSON, d/b/a Earle Johnson Engineering Company, Third Party Plaintiff, v. LINABURRY BLOCK CO., Inc., Third Party Defendant, Fourth Party Plaintiff, v. MICHIGAN MUTUAL LIABILITY COMPANY, Fourth Party Defendant.
• Court: U.S. District Court — Southern District of Indiana

190 F. Supp. 454

J. B. MERRITT, Plaintiff, v. Earle JOHNSON, d/b/a Earle Johnson Engineering Company, George L. Fowler, Merko Dotlich, et al. d/b/a Dotlich Brothers Company and Dotlich Brothers Construction Machinery Rental Company, Defendants, Michigan Mutual Liability Company, Impleaded Defendant.

Earle JOHNSON, d/b/a Earle Johnson Engineering Company, Third Party Plaintiff, v. LINABURRY BLOCK CO., Inc., Third Party Defendant, Fourth Party Plaintiff, v. MICHIGAN MUTUAL LIABILITY COMPANY, Fourth Party Defendant.

Civ. A. No. IP 59-C-168.

United States District Court S. D. Indiana, Indianapolis Division.

January 10, 1961.

COPYRIGHT MATERIAL OMITTED

Howard Young, Jr., Mills & Huse, by Howard Young, Jr., Indianapolis, Ind., for plaintiff.

Armstrong, Gause, Hudson & Kightlinger, by Erle A. Kightlinger, Indianapolis, Ind., for Earle Johnson, d/b/a Earle Johnson Engineering Co.

Locke, Reynolds, Boyd & Weisell, by Hugh Reynolds, Sr., Indianapolis, Ind., for George Fowler, Merko Dotlich, et al., d/b/a Dotlich Bros. Co. and Dotlich Bros. Constr. Machinery Rental Co.

Cadick, Burns, Duck & Neighbours, by Floyd Burns, Indianapolis, Ind., for Linaburry Block Co., Inc.

Murray, Mannon, Fairchild & Stewart, by James J. Stewart, Indianapolis, Ind., for Michigan Mut. Liability Co.

HOLDER, District Judge.

The defendants, Earle Johnson, doing business as Earle Johnson Engineering Company (herein referred to as Johnson), George L. Fowler (herein referred to as Fowler), and Merko Dotlich, Sammy Dotlich, Mike Dotlich, and Monnie Dotlich, doing business as Dotlich Brothers Company and Dotlich Brothers Construction Machinery Rental Company (herein referred to as Dotlichs), pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., separately and severally filed their Motion for a Summary Judgment on October 25, 1960 for the dismissal of the action of plaintiff, J. B. Merritt (herein referred to as Merritt), on the ground that there is no genuine issue as to any material fact, and that the defendants are entitled to judgment as a matter of law. In support of their Motion, they filed an affidavit of E. L. Bradshaw, President of Linaburry Block Company, Inc. (herein referred to as Linaburry), and the depositions of Johnson, Charles Stafford, Fowler, and Merritt. The moving parties contend such evidence conclusively show the following:

(a) That Merritt, while an employee of Linaburry, was injured and being duly qualified, sought, and received compensation from Linaburry under the Indiana Workmen's Compensation Act of 1929 as amended (herein referred to as the Compensation Act of 1929). Each of the moving defendants, at the time of such injury to Merritt, were engaged in the conduct of Linaburry's business so as to be one of "those conducting his business" as that language is used in Section 5 of said Act (Section 40-1205, Burns' Indiana Statutes), and, therefore, under said section and Section 6 of said Act (Section 40-1206, Burns' Indiana Statutes), the remedies under the said Act are exclusive.

(b) The defendants are not "other persons" under Section 13 of the Compensation Act of 1929 (Section 40-1213, Burns' Indiana Statutes) and, therefore, the defendants are not liable as third party tort-feasors.

Pursuant to Rule 56, Merritt, in opposition to the defendants' Motion in addition to the affidavit and depositions offered by the defendants, submitted the following evidence: Certified copy of the Articles of Incorporation of Linaburry; depositions of Fowler taken October 19, 1960, Charles Franklin Stafford taken October 6, 1960, Monnie Dotlich taken November 17, 1960, and of Merritt taken October 20, 1960; transcript of the cross-examination testimony of Elbert L. Bradshaw from the trial of the fourth party action in this cause on October 13, 1960, and the transcript of the direct and cross-examination testimony of Johnson from the trial of the fourth party action in this cause on October 13, 1960. The plaintiff, Merritt, contends such evidence shows that:

(a) The plaintiff's common law right of action against the defendants on account of their negligence is specifically preserved by Section 13 of the Compensation Act of 1929 (Section 40-1213, Burns' Indiana Statutes).

(b) The Compensation Act of 1929 (Section 40-1201 through 40-1704, Burns' Indiana Statutes) is no defense to the defendants in this cause.

The plaintiff further moved to strike the third defenses of Johnson's, Fowler's, and Dotlichs' answer to the plaintiff's second amended complaint. This Motion to Strike is considered as a Motion for Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure. The plaintiff contends that the Compensation Act of 1929 does not support such defenses to the plaintiff's second amended complaint.

The hearing and argument was held on December 20, 1960, and no further evidence was offered by the parties.

The plaintiff's action against Johnson, Fowler, and Dotlichs is for damages proximately caused by the alleged negligent acts of commission and omission in violation of common law and statutory duty. The issues of the second amended complaint and the defendants' defenses thereto material to the Motion for Summary Judgment are as follows:

The defendants admit that Merritt was an employee of Linaburry on October 11, 1957. The defendants deny that as a proximate result of their separate and several negligent acts of commission and omission in the construction of Linaburry's concrete block plant which included the preparation and the hoisting of a large metal hopper into a steel framework erected to support such hopper about thirty-five (35) feet above ground level. Such negligence of defendants consisted of permitting or causing the hopper to fall, pinning plaintiff between the hopper and steel framework from which plaintiff suffered severe permanent injuries, losses and expenses. The defendants admit Merritt was paid compensation under the Compensation Act of 1929. The defendants deny that Johnson was constructing the Linaburry concrete block plant and directing such hopper operation as an independent contractor. The defendants admit that Fowler was the crane operator in hoisting such hopper. The defendant, Johnson, denies and the defendants, Fowler and Dotlichs, admit that the Dotlichs were in the business of furnishing heavy equipment and operators thereof. The defendants all deny that the Dotlichs furnished Johnson the crane in question operated by Fowler, as the employee of Dotlichs, or that the Dotlichs turned over such control of the crane and operator thereof to Johnson. The issues of Johnson's third defense to the second amended complaint are that Merritt received workmen's compensation benefits from the insurer of his employer Linaburry pursuant to the Compensation Act of 1929. Johnson was acting on said project as a construction engineer for and on behalf of Linaburry in the furtherance of the construction of a building for the said Linaburry and on its account and under its supervision, control and direction and in the furtherance of its business and project and that the Compensation Act of 1929 is the exclusive, sole and only remedy available to Merritt, and that the Court herein has no jurisdiction to entertain a suit at law for damages against Johnson. The issues of Fowler's and Dotlichs' third defense to the second amended complaint are that Merritt received workmen's compensation benefits from the insurer of his employer Linaburry pursuant to the Compensation Act of 1929. Fowler was the operator of a crane rented by Dotlich to Linaburry which was paid for by Linaburry. Fowler, in the furtherance of the construction of said building for Linaburry and on its account and under its supervision, control and direction and in the furtherance of its business and project was engaged in conducting the business for and on behalf of Linaburry, and that the Compensation Act of 1929 is the exclusive, sole and only remedy available to Merritt, and that the Court herein has no jurisdiction to entertain a suit at law for damages against Fowler and Dotlichs.

The issues of the third and fourth party actions have been separately tried and are pending on Motions for New Trials. The judgment of the Court under the issues of Johnson's third party action against Linaburry was to the effect that the "Contract Agreement", hereinafter quoted, between Linaburry and Johnson obligated Linaburry to indemnify Johnson from all risk and involvement including the claims of Merritt's complaint against Johnson. The judgment of the Court under the issues of Linaburry's fourth party action against Michigan Mutual Liability Company was to the effect that Linaburry had not ordered liability insurance for Johnson that would cover the claims of Merritt's complaint against Johnson as claimed by Linaburry.

The facts gleaned from the tendered evidence of all of the parties are briefly stated as follows:

It is undisputed that Linaburry was the sole employer of Merritt when he was injured in the course of such employment for which Merritt claimed compensation from Linaburry under the Compensation Act of 1929 and was paid compensation under said Act by Linaburry's compensation insurance carrier, Michigan Mutual Liability Company. None of the defendants were employers of Merritt and no claim for compensation under the Act was made by or paid to Merritt by defendants. The facts concerning the relationship of Johnson with Linaburry and Merritt is herein narrated. Johnson, a licensed professional engineer, was experienced in the building of buildings for the City of Indianapolis for eighteen (18) years; was a construction engineer for Fort Harrison during the latter part of World War II; has been a designer and engineer in charge of construction of buildings and warehouses; has also built houses and small buildings; was at the times in question maintaining his own business office. Before Linaburry was incorporated, on March 27, 1957,...