Muncie Pulp Co. v. Davis

Decision Date29 April 1904
Docket Number20,354
Citation70 N.E. 875,162 Ind. 558
PartiesMuncie Pulp Company v. Davis
CourtIndiana Supreme Court

From Delaware Circuit Court; J. G. Leffler, Judge.

Action by Frank K. Davis against the Muncie Pulp Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Reversed.

W. A Thompson and W. H. Thompson, for appellant.

R. S Gregory, A. C. Silverburg and W. J. Lotz, for appellee.

OPINION

Gillett, C. J.

This action was instituted by appellee to recover for an injury to his person. The complaint was in three paragraphs. Appellant unsuccessfully demurred to each of said paragraphs, and then filed answer by way of general denial. Appellee recovered a verdict, on which judgment was rendered. The record has been so framed as to present the sufficiency of each paragraph of complaint as against said demurrer.

Some statement as to said first paragraph must be made as a basis for the opinion which is to follow; but in the making of such statement we shall endeavor to show the character of said paragraph with reference to the objections urged against it, rather than to make an abridged exhibit of all its averments. It appears from said paragraph that at the time of appellee's injury, January 7, 1902, appellant, a corporation engaged in the manufacture of pulp, had in its factory two batteries of boilers, with a fire-box beneath each of said boilers; that it was necessary to clean said boilers by steam and hot water every three or four hours; that for that purpose said batteries were encircled by what is termed a "blow line"; that opposite each boiler there was an individual line extending from said blow line through the fire-box and into said boiler; that there was a valve on each of said individual lines, whereby the steam and hot water could be shut out of it. It further appears from said paragraph that appellee, a pipe-fitter in the employ of appellant, was injured by the steam and hot water being turned on in said blow line, while he was making a repair to the system by the replacing of a pipe in the fire-box of furnace No. 7, and that appellee was doing said work pursuant to the order of appellant's boiler superintendent, one Thornburg, to whose order appellee, under his contract with appellant, was bound to conform, and was conforming at the time of his injury. It is alleged that appellant and said Thornburg and a number of appellee's co-employes knew of said order, and had full knowledge of appellee's dangerous position while he was working in said fire-box. It does not appear who turned the steam and hot water into the blow line, but it is alleged that the valve in the pipe leading to said furnace was "negligently, carelessly, and wrongfully left open by the defendant corporation, its employes, and the said Thornburg, without any knowledge or fault of the plaintiff, so that when the steam was turned into said blow line the full force thereof was negligently, carelessly, and wrongfully rushed and forced into the fire-box, where plaintiff was then and there working, and upon and against his body, and that the said Thornburg failed, neglected and omitted to keep said valves closed, and carelessly and negligently permitted the same to be left open by the employes of the defendant corporation, without any fault, knowledge, or notice on the part of the plaintiff." After alleging the nature of appellee's injuries, it is charged in said paragraph that all of said injuries were caused "by reason of the said carelessness, negligence, and acts and omissions of the defendant corporation, through its employes, agents, and servants, and through the said negligent and careless acts and omissions of the said Thornburg."

Counsel for appellee do not claim that the paragraph of complaint in question states facts sufficient to create a liability at common law, but they claim that said paragraph states a cause of action under the employers' liability act (§ 7083 et seq. Burns 1901). Appellant's counsel, on the other hand, limit their argument as to said paragraph to a discussion as to whether the facts therein alleged bring the case within the terms of said act. In view of the manner in which the case has been presented, we shall assume that the sufficiency of the paragraph is to be judged by the standard indicated.

The particular contention of counsel for appellee is that a cause of action is stated in said paragraph under the second subdivision of the first section of said act. The portions of said section thus brought into review are as follows: "That every railroad or other corporation, except municipal, operating in this State, shall be liable for damages for personal injury suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases: * * * Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time of the injury was bound to conform, and did conform."

It is to be observed that it is not alleged in said paragraph that it was negligent to give the order to make the repairs in said fire-box. Construing the pleading most strongly against the pleader, we are warranted in...

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