Stainbrook v. Johnson County Farm Bureau, Co-op. Ass'n, 18565

• Decision Date: 07 December 1954
• Docket Number: No. 18565,18565
• Citation: 125 Ind.App. 487,122 N.E.2d 884
• Parties: Virgil P. STAINBROOK, Appellant, v. JOHNSON COUNTY FARM BUREAU, COOPERATIVE ASSOCIATION, Inc., and Johnson County Farm Bureau, Inc., Appellees.
• Court: Indiana Appellate Court

Page 884

122 N.E.2d 884

125 Ind.App. 487

Virgil P. STAINBROOK, Appellant, v. JOHNSON COUNTY FARM BUREAU, COOPERATIVE ASSOCIATION, Inc. and Johnson County Farm Bureau, Inc., Appellees.

No. 18565.

Appellate Court of Indiana, In Banc.

Dec. 7, 1954.

Gerald F. Branigin, Thurman M. DeMoss and Branigin & Branigin, Franklin, for appellant.

Hugh E. Reynolds, Hugh Watson, Slaymaker, Locke & Reynolds, Indianapolis, for appellees.

KENDALL, Judge.

Appellant brought suit in the court below for damages for the loss of his wife's services who was an employee of the Johnson County Farm Bureau Co-operative who was injured while in the course of her employment. It was stipulated that the wife as the employee and her employer by its compensation insurance carrier entered into an agreement for the payment of compensation, which agreement was duly filed with the Industrial Board of Indiana.

A plea in abatement was filed by appellee alleging that the wife had been paid in full the amount due her under the provisions of the Workmen's Compensation Act, Burns' Ann.St. § 40-1201 er seq., to which a demurrer was filed by the appellant which was overruled by the court. Appellant then filed answer to plea in abatement resulting in the trial court entering judgment for appellee and ordering that said action abate.

Appellant's motion for new trial was overruled. The assignment of errors are: (a) error in overruling appellant's demurrer to appellees' plea in abatement; (b) error in entering judgment abating the action; (c) error in overruling appellant's motion for new trial.

By the issues presented, we are called upon to decide whether the rights under the Indiana Workmen's Compensation Act are exclusive or whether a husband whose wife has been injured and paid the full amount due under the provisions of the Indiana Workmen's Compensation Act may maintain an action at common law for the loss of society, companionship, conjugal affection and services on account of such injuries sustained by her in the course of her employment.

Appellees argue that the rights granted by the Indiana Workmen's Compensation Act are exclusive of all other rights and that the employer is only liable in the manner provided by the Act; that the husband's claim being dependent upon his wife's injury, an employee, he does not have a common-law right of action for his loss sustained as a result of her injuries. The appellant contends, however, that the Act does not expressly exclude the remedy of the husband at common law for the injuries of his wife; that the husband still has such remedy and that the wife may be allowed to accept payments under the Act and at the same time, he be permitted to maintain an independent action at common law for damages for loss of services.

Sections 5 and 6 of the Act, being §§ 40-1205 and 40-1206, Burns' 1952 Replacement, are pertinent to a decision of the question presented. Sec. 5 provides in part as follows:

'* * * and while such insurance or such certificate remains in force he (employer) or those conducting his business shall be liable to any employee and his dependents for personal injury or death by accident arising out of and in the course of employment only to the extent and in the manner herein specified. (Acts 1929, ch. 172, § 5, p. 536),' Burns' Indiana Statutes, 1952 Prelacement, 40-1205.

Sec. 6 provides as follows:

'The rights and remedies herein granted to an employee subject to this act on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death. (Acts 1929, ch. 172, § 6, p. 536)' Burns' Indiana Statutes, 1952 Replacement, 40-1206.

In the case of Allen v. Public Service Co., 1952, 122 Ind.App. 421, 104 N.E.2d 756, this court re-affirmed the rule that in the absence of a rejection of the Workmen's Compensation Act by the employee or employer where a case comes within the provisions of the Act, the remedy there provided is exclusive. Small Workmen's Compensation Law of Indiana, § 2.4, p. 23.

In the case of McDonald v. Miner, 1941, 218 Ind. 373, 32 N.E.2d 885, the Supreme Court pointed out that under § 6 of the Workmen's Compensation Act it was provided that the remedies granted by the Act should be exclusive of all other rights and remedies of the employees, personal representatives, dependents or next of kin at common law or otherwise on account of such injury or death. In that case, by which this court is bound, the husband sued in his own right--not as a personal representative, asserting an independent action. The court held that...