Old Folks' & Orphan Children's Home v. Roberts

• Decision Date: 28 October 1925
• Docket Number: No. 12154.,12154.
• Citation: 83 Ind.App. 546,149 N.E. 188
• Court: Indiana Appellate Court
• Parties: OLD FOLKS' AND ORPHAN CHILDREN'S HOME v. ROBERTS.

83 Ind.App. 546

149 N.E. 188

OLD FOLKS' AND ORPHAN CHILDREN'S HOME

v.ROBERTS.

No. 12154.

Appellate Court of Indiana, Division No. 1.

Oct. 28, 1925.

Appeal from the Circuit Court, Howard County; John Marshall, Judge.

Action by William F. Roberts against the Old Folks' & Orphan Children's Home. Judgment for defendant, and plaintiff appeals. Reversed with directions.

York & Rees, of Peru, Ind., and Overson & Manning, of Kokomo, for appellant.

Arthur D. Sayler, of Huntington, and Wolf & Barnes, C. W. Roll, and Geo. B. Shenk, all of Kokomo, for appellee.

ENLOE, J.

This was an action by the appellee to recover damages on account of a personal injury sustained by him, while an inmate of appellant home, which said injury was alleged to have been caused by the negligence of the appellant.

The cause was tried upon an amended complaint, in one paragraph, to which the appellant had unsuccessfully demurred, and resulted in a verdict for the appellee. The errors assigned and presented upon this appeal are (a) the overruling of said demurrer, and (b) the overruling of the motion for a new trial.

[1] The appellee has first raised the question that the bill of exceptions containing the evidence is not in the record. This contention must be sustained. The said bill was not filed during the term at which the motion for a new trial was overruled, nor was time then asked and given within which to file such bill. See Tozer v. Hobbs, 79 Ind. App. 258, 137 N. E. 715.

It appears from the record that the appellant is a private charitable corporation, duly organized under the laws of this state. The object of said corporation, as stated in its articles of incorporation, is:

“To better provide for and take care of poor and infirm members of said church and orphan children of the same, as may be duly admitted to the benefits of said home; to train up and properly educate said orphan children and to prepare them for the proper and correct discharge of the duties of life.”

It further appears from the record that the appellant was duly placed in said home as an inmate thereof, by the order of the circuit court of Huntington county, when he was about 14 years of age, and that he had been an inmate of said home about six months at the time he received the injury complained of; the said injuries being caused by the clothing of appellee catching in a flywheel which was unguarded. The negligence charged in the complaint was (a) failure to have a guard about said flywheel; (b) negligence in ordering and directing appellee, on account of his age and inexperience, to operate a certain switchboard, whereby he was brought into close proximity with said flywheel; and (c) negligence of appellant in employing a certain named person as business manager of said home, in the employing of another named person as matron of said home, and in the employing of another named person as caretaker of boys in said home, and in retaining each of said servants in its employ after the incompetence of each was, or should have been, known.

[2][3] There was no motion to separate the several alleged causes of action, and, if said complaint states a cause of action, as to either of said alleged acts of negligence, reference being had to the memorandum of deficiencies filed with said demurrer, there was no error in overruling said demurrer. As to the said first charge of negligence the complaint proceeds upon the theory, and it was so stated by counsel upon oral argument, that it was the positive duty of appellant, and which duty it owed to appellee to place a guard about said flywheel; that this duty was imposed upon it by statute (section 8029, Burns' 1914); that this duty was nondelegable; that, as to this duty, the appellant owed to the appellee the same duty which a master owes to his servant.

[4] With this contention we cannot agree. The appellant was an eleemosynary corporation; it was assisting the state in carrying on a part of its work, assisting in the performance of a governmental duty, a matter in which...