Seaton v. United States Rubber Co.

• Decision Date: 29 May 1945
• Docket Number: 28061.
• Parties: SEATON v. UNITED STATES RUBBER CO. et al.
• Court: Indiana Supreme Court

61 N.E.2d 177

223 Ind. 404

SEATON v. UNITED STATES RUBBER CO. et al.

No. 28061.

Supreme Court of Indiana

May 29, 1945

Appeal from Marion Superior Court; Walter J. Myers, Jr., Special judge.

Marsh & Marsh and T. Ernest Maholm, all of Indianapolis, for appellant.

Leo M. Rappaport, Albrecht R. C. Kipp, Alan W. Boyd, Floyd W Burns, and Barnes, Hickam, Pantzer & Boyd, all of Indianapolis, for appellee.

STARR Judge.

This is a common-law action filed by the appellant against the appellees, seeking to recover damages for personal injuries alleged to have been sustained by her, and to have resulted from the negligence of the appellees. Each of the appellees filed a demurrer to appellant's amended complaint for want of facts and lack of jurisdiction, which demurrers were sustained, and the appellant refused to plead further. Thereupon judgment was rendered against appellant and for the appellees, from which judgment this appeal is taken.

The material allegations of said amended complaint are substantially these: That the defendant United States Rubber Company, hereinafter referred to as the Company, was at all times mentioned in said complaint a corporation engaged in the manufacture of rubber products in the city of Indianapolis; that on January 30, 1942, the plaintiff was and had been in the employ of said Company for more than twelve years, and was earning more than $35 per week, her work consisting of moving certain products of the Company from one place to the other in said Company's factory building that same were transported by means of a truck which was pushed by the plaintiff over and across the floor of the Company's factory building; that the Company negligently permitted said floor to become deteriorated in that portion over which said truck was operated by the plaintiff; that dut to said deterioration there developed a hole or depression in said floor approximately four to five inches in depth which was directly in the pathway or route over which the plaintiff operated said truck; that on said last mentioned date, while plaintiff was so operating said truck, it accidentally ran into said hole, causing said truck to tip over and against the right leg of plaintiff, forcing her against a table; that her right side and hip were struck with great violence; that due to said accident plaintiff suffered severe injury and was in great pain; that at the time of the accident the defendant Edmond B. Haggard was a physician and surgeon in the employ of said Company, and was in charge of the first aid or hospital department of said Company for the use of said Company's sick or injured employees; that said Haggard as such physician, examined the plaintiff at said first aid department immediately after her injury; that at said time her right leg was greatly swollen above the ankle, and that her right hip and side were also swollen and discolored; that he at said time advised the plaintiff that said injuries 'did not amount to much,' and advised her to go back to work and to see him the following day, and in the meantime to put liniment on the injured parts; that plaintiff, although suffering great pain, did go back to work, and was again examined by the said Haggard on the following day, and that thereafter the said Haggard did make many other examinations of plaintiff's injured parts, and did on each occasion advise the plaintiff that she was only slightly bruised, and to let matters wait for a few days to see if anything further developed, and to continue the use of said liniment; that on the second examination of the plaintiff she informed him that she was still in great pain, and that he gave her some aspirin tablets and advised her to take the same; that she continued to carry out her daily tasks with said Company, as advised by said Haggard, up until March 10, 1942, although she was constantly in great pain; that on said last mentioned date the said Haggard took X-ray pictures of plaintiff's injuries, and after examining said pictures advised her to go home at once and to go to bed and remain off her feet, which she did; that on the 14th of March, 1942, she was taken to the Methodist Hospital, in said City of Indianapolis, by order of said Haggard, where numerous X-rays were taken of her injuries; that she remained in said hospital until March 24, 1942, when she was returned to her home, where the said Haggard continued to treat her professionally until on or about April 3, 1942.

That plaintiff at the time of the accident 'had no means of knowing just how bad she had been injured,' but depended and relied solely upon the advice and instructions of Edmond B. Haggard; that said Haggard, being a physician, well knew or by the exercise of reasonable care and skill should have known, that after such an injury as this plaintiff sustained, 'grave injuries might and could result thereafter' if plaintiff remained working and being on her feet, but that instead of giving her the proper attention, he 'just passed it off, as nothing of consequence,' and ordered plaintiff back to her work, to stand upon her feet, which caused her injuries to become worse, while if she had been ordered to bed and to stay off of her feet at the time of the injury the consequences of said accident 'might' have been greatly lessened, and that, by reason of the malpractice of said Haggard, plaintiff's condition was aggravated, prolonged, and made incurable; that because the defendant Haggard so negligently behaved and governed himself in and about the care of this plaintiff, in not advising her at the time of his first examination to remain off her feet, and in not at once having X-ray photographs made of her injuries, and in 'belittling' said injuries, and in instructing her to go back to work and to see him the next day, and thereafter advising her to continue with her work, and to rub liniment upon the parts that were painful, and advising her that the pain would soon cease and wear off, plaintiff was and still is caused to suffer great pain and anguish, her general health greatly impaired, weakened and ruined, and as a result she is now and will forever remain a helpless cripple, and that as a further direct and proximate result of the said negligence of the defendants she is now suffeing from an occupational disease 'which is not compensable under the Occupational Diseases Act or the Workmen's Compensation Act.'

The prayer of plaintiff's amended complaint prays judgment against the defendants both separately and severally in the sum of $150,000, costs, and any and all other proper relief in the premises.

Said amended complaint nowhere alleges that either the Company or the said plaintiff had elected not to be bound by the Workmen's Compensation Act, as provided by Burns' 1940 Replacement, § 40-1202.

Appellant assigns as error the sustaining of the appellees' demurrers to her amended complaint.

The Company set out in a memorandum to its demurrer that said complaint shows on its face that the appellant was lawfully employed; that her only remedy was under the Workmen's Compensation Act; that the acts complained of as constituting malpractice merely constituted an aggravation of the original injury, and that it was not quilty of the same; that the complaint fails to set out that either the Company or the appellant rejected the provisions of the Workmen's Compensation Act, and that the appellant accepted medical services from the Company. Appellee Haggard's memorandum to his demurrer contains substantially the same grounds as that of the Company, although in different language.

Appellant in her brief, under her Propositions, Points and Authorities, contends that the appellant had the right either to proceed under the terms of the Workmen's Compensation Act for relief or to bring this action, and that the said act could not deny the appellant a right to resort to the courts of law for redress, and to a right of trial by jury, and that so to interpret the act would be a violation of Article 1, Sections 12 and 20, and Article 7, Section 1, of the Constitution of the state of Indiana. What the appellant really intends to say is that in so far as § 40-1206, Burns' 1940 Replacement, makes the rights and remedies granted to an employee who is subject to the act on account of personal injury by accident exclusive of all other rights and remedies of said employee, at common law or otherwise, it is unconstitutional.

Every contention thus made by the appellant has been fully discussed and decided against her in the case of Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, 26 N.E.2d 399. We agree with all that is said in that case and there is no necessity for more to be added on the question of...