Strickler v. Sloan, 18806
| Decision Date | 01 May 1957 |
| Docket Number | No. 18806,18806 |
| Citation | 127 Ind.App. 370,141 N.E.2d 863 |
| Parties | Jack M. STRICKLER, Appellant, v. Herbert H. SLOAN, Frederic H. Sloan and Robert D. Sloan, doing business as H. H. Sloan and Sons, and J. I. Case Company (a Wisconsin Corporation), Appellees. |
| Court | Indiana Appellate Court |
John M. Heeter, Indianapolis, K. Parker Vosloh, Bloomfield, John J. Dillon, Indianapolis, of counsel, for appellant.
Emerson Boyd, Kenneth L. Kleinsmith, Locke, Reynolds, Boyd & Weisell, Indianapolis for J. I. Case Co.
Murray, Mannon, Fairchild & Stewart, Alvin E. Meyer, Indianapolis, for Herbert H. Sloan, Frederic H. Sloan and Robert D. Sloan, doing business as H. H. Sloan & Sons.
Appellant instituted this cause against the appellees, the complaint being in two paragraphs.
For proper consideration by this court it is necessary to explain the issues presented.
The theory of said first paragraph of complaint as stated by appellant is as follows: The first paragraph of complaint is predicated upon common-law negligence and alleges an agency relationship between the appellees H. H. Sloan and Sons and the J. I. Case Company as well as allegations of negligence on the part of J. I. Case Company in manufacturing a latently defective and inherently dangerous machine.
The theory of the second paragraph of complaint is based upon liability under the Employers' Liability Law and does not state a cause of action against the appellee J. I. Case Company.
Appellee H. H. Sloan and Sons filed a demurrer to each paragraph of the complaint. Appellee J. I. Case Company filed a demurrer to Paragraph I of the complaint, which demurrers were sustained by the trial court. Appellant failing to plead further, judgment was rendered for each appellee.
Appellant's amended complaint alleged that appellee H. H. Sloan and Sons was in the farm equipment and farming business; that appellees Sloans were the agent and representative of J. I. Case and Company; that as their employee appellant traveled from farm to farm in the business of harvesting crops; that appellees Sloans ordered and directed appellant to work on another farm at the time sued upon; that because of negligence on the part of appellees jointly and severally, appellant fractured his thumb and two fingers in 'open and moving trash rollers' of a mounted Case cornpicker.
Appellant's contention of error is predicated upon the following grounds:
1. That the bare allegation of appellant in his complaint, that he was a 'farm laborer', is admitted by the demurrer and therefore the Workmen's Compensation Act is not applicable.
2. That the court below could not consider the allegations of fact made by appellant in his complaint to determine appellant's status as a matter of law without a trial and submission of evidence.
Appellees Sloans contend that they cannot accept either of these proposals as being supported by the decisions of the courts of Indiana and, in fact, maintain that they are contrary to decided case law and the statutes relating to complaints and demurrers. Appellees Sloans further argue in their brief that with regard to the court's decision below, the appellant admits in his brief that his action should fail if he was employed to operate a cornpicker at the time of the injury, in behalf of his employer, picking corn for another person. Appellees Sloans call attention to the fact that the appellant cites the case of Hahn v. Grimm, 1935, 101 Ind.App. 74, 198 N.E. 93, in his brief, which the appellees Sloans relied upon in their demurrer and upon which case the trial court rendered its judgment. It is the contention of the appellees Sloans that the allegations of 'farm laborer' in appellant's complaint is a legal conclusion which is not admitted as true by the demurrer. The specific allegations by appellant in his complaint which describe the nature of his employment at the time of injury and the reasonable inferences to be drawn from such allegations wholly support the decision of the trial court in sustaining appellees Sloans' demurrer and the rendition of judgment thereon, the appellant failing and refusing to plead over. It is appellees Sloans' further contention that the allegations of facts that appellant was 'picking corn with a cornpicker * * * owned by the defendants, H. H. Sloan and Sons, as a loaned laborer to the said Walter Rollison on the John Owen farm * * *' when construed with the other allegations of appellant's complaint clearly states facts from which the court properly concluded that the appellant was an employee within the meaning of the Workmen's Compensation Act.
The first proposition advanced by appellant is that a demurrer admits as true the allegations to which the demurrer is addressed. This is true, when qualified, since it does not apply to legal conclusions which are pleaded in a complaint. Works' Indiana Practice, Lowe's Revision, Vol. 1, § 14-37, p. 564, with cases cited.
It is well settled law that conclusions of law which are alleged in the pleading demurred to, are not taken as true, nor is it necessary to file a motion to state facts sufficient to support the conclusion in order to avoid waiving the objections thereto. Burns' § 2-1005, 1946 Replacement; Columbia Properties v. State Board Tax Com'rs, 1953, 232 Ind. 262, 111 N.E.2d 891; Loftin v. Johnson, 1940, 216 Ind. 537, 24 N.E.2d 916.
The allegation 'that the plaintiff was employed by the said defendants, H. H. Sloan and Sons, for the performance of farm labor' is a legal conclusion and the demurrer does not admit such conclusion as an ultimate fact pleaded in the complaint, nor is it such a conclusion as will be considered as having all the fact allegations necessary to support the conclusion. In each instance in the complaint, the appellant recites by allegation the descriptive facts concerning the nature of services performed by him at the time of the alleged injury, immediately following the broad legal conclusion allegation of 'farm labor' as follows: 'Picking corn with a cornpicker * * * owned by the defendant, H. H. Sloan and Sons, for said defendant, H. H. Sloan and Sons, as a loaned laborer to the said Walter Rollison on the John Owens Farm * * *'. These allegations are the ones of fact.
Appellant's second general proposition is that the court could not conclude as a matter of law, without evidence being heard thereon, that the appellant was an employee within the meaning of the Workmen's Compensation Act, and not a farm laborer.
The appellant is correct in his assertion that the general occupation or business of the employer is not controlling upon the issue of determining a farm laborer's status as such; what is determinative is the character and nature of services rendered by the employee in the course of his employment, and the complaint clearly states those services as the appellant pleaded them, and the allegations must be regarded as true when tested by demurrer. Under the Hahn v. Grimm case, supra, the services alleged are not regarded as constituting farm or agricultural employment within the meaning of the Workmen's Compensation Act. See also Heffner v. White, 1942, 113 Ind.App. 296, 45 N.E.2d 342; Evansville Veneer & Lumber Co. v. Mullen, 1946, 116 Ind.App. 616, 65 N.E.2d 742.
So, in the case before the court, where the nature of the employment at the time of the injury is clearly stated in the pleadings, and the twofold nature of the employer's activities is also pleaded, the mere fact that the employee might on other occasions of employment not be within the scope of the Act cannot be controlling in the determination of the jurisdictional matter involved in this appeal which is clearly presented by the pleadings. Evidence is unnecessary where the issue presented by the pleading is one of law only. It has been held by this court that one who operates hazardous farm machinery on the farm of a farmer who is not his employer, under contract existing between the farmer and his employer, is not a farm laborer. Hahn v. Grimm, supra; In re Boyer, 1917, 65 Ind.App. 408, 117 N.E. 507. We are of the opinion that the facts as alleged in appellant's complaint are identical to the facts stated in the case of Hahn v. Grimm, supra, and that the judgment rendered in behalf of the appellees Sloans should be affirmed on the precedent of that decision. The appellant came into court by his own choice of allegations of fact in his complaint and he was afforded the opportunity to plead over after the court below sustained appellee H. H. Sloan and Sons' demurrer, but appellant refused and elected to be bound by his complaint. The complaint clearly shows on its face that appellant's employment was under the Workmen's Compensation Law and that he has a right to bring his action before the Industrial Board if he so elects.
Appellant's proposition supporting his assertion of error to the trial court's sustaining the demurrer of appellee J. I. Case Company to Paragraph I of the amended complaint may be summarized:
1. The amended complaint alleged that appellant was a bona fide farm laborer so as to exclude appellant from the compensation act and the six months' time limit for a third party action.
2. Expiration of the six months' time limit for a third party action cannot be raised by demurrer.
3. A chattel manufacturer is liable to an ultimate user for 'failure to exercise reasonable care in the adoption of a safe plan or design.'
4. The issue of whether appellant's action was within the Industrial Board's jurisdiction, whether appellant, as an employee of appellees Sloans, was excluded from the Workmen's Compensation Act, and whether the alleged defect in the cornpicker was latent or patent, must be determined only by evidence.
Appellee J. I. Case Company contends that the appellant's amended complaint is demurrable for want of jurisdiction of the subject matter and of this case, and for failure to state sufficient facts to constitute a cause of...
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