Pearson v. Rogers Galvanizing Co.

• Decision Date: 01 March 1945
• Docket Number: No. 17324.,17324.
• Citation: 115 Ind.App. 426,59 N.E.2d 364
• Parties: PEARSON v. ROGERS GALVANIZING CO.
• Court: Indiana Appellate Court

115 Ind.App. 426

59 N.E.2d 364

PEARSON

v.ROGERS GALVANIZING CO.

No. 17324.

Appellate Court of Indiana, in Banc.

March 1, 1945.

Appeal from Superior Court, Lake County; Harold L. Strickland, Judge.

Action by Fred Pearson against Rogers Galvanizing Company, to recover for pain and mental anguish alleged to have resulted from personal injuries incurred by plaintiff while in defendant's employ and while acting in scope and in furtherance of his employment. From a judgment for defendant, following the sustaining of defendant's demurrers to the complaint and plaintiff's refusal to plead further, the plaintiff appeals.

Affirmed.Thorpe, Bamber & Harrison, of Hammond, for appellant.

Tinkham & Tinkham, of Hammond, for appellee.

DOWELL, Presiding Judge.

Appellant, the plaintiff below, sought to recover damages for pain and mental anguish alleged to have resulted from personal injuries incurred while in the employ of appellee and ‘while acting in the scope and in furtherance of his employment.’

The complaint, by first paragraph, declared upon negligence on the part of appellee founded upon its failure to provide a safety device for an overhead traveling chain hoist which left its track and dropped upon appellant, fracturing his skull. The second paragraph of complaint differed from the first only in the respect that it charged the omission to provide such safety device to have been ‘wanton and wilful conduct’ on the part of appellee. It was further alleged in the complaint that the injuries suffered by appellant were not the result of an ‘accident’ so as to be compensable under the terms of the Workmen's Compensation Act by reason of the fact that same were not the result of a mishap or untoward event not expected or designed but were proximately caused by unlawful acts and omissions of appellee amounting to negligence and wanton and wilful conduct, the appellee at all times having knowledge that the operation of said chain hoist without such safety device constituted a condition of such unusual peril that injuries of the kind, and in the manner, received by appellant could have been reasonably anticipated, the appellant being at all times without such knowledge.

To each paragraph of complaint appellee addressed demurrer for want of facts and jurisdiction on the grounds set up in the supporting memoranda they being that the facts alleged in the complaint showed that appellant sustained an injury which arose out of and in the course of his employment, his exclusive remedy under such circumstances being under the Workmen's Compensation Act.

Appellee's demurrers were sustained whereupon appellant refused to plead further and the cause reaches us with error assigned to the...