Talge Mahogany Company v. Burrows

• Citation: 130 N.E. 865,191 Ind. 167
• Decision Date: 29 April 1921
• Docket Number: 23,489
• Parties: Talge Mahogany Company v. Burrows
• Court: Supreme Court of Indiana

130 N.E. 865

191 Ind. 167

Talge Mahogany Company v. Burrows

No. 23,489

Supreme Court of Indiana

April 29, 1921

Rehearing Denied October 12, 1921.

From Boone Circuit Court; Willett H. Parr, Judge.

Action by Otto Burrows against the Talge Mahogany Company. From a judgment for plaintiff, the defendant appeals.

Reversed.

Wilson S. Doan, James C. Mathews, Ulric Z. Wiley and Lilburn H. Van Briggle, for appellant.

William G. White, Arthur J. Jones and Wm. O. Polkinhorn, for appellee.

Ewbank J. Townsend, J., absent.

OPINION

Ewbank, J.

The appellee sued to recover damages for a personal injury alleged to have been caused by the negligence of the appellant while appellee was working in appellant's factory as one of appellant's employes. Demurrers filed by appellant to each of the three paragraphs of complaint on the alleged ground that neither paragraph stated facts sufficient to constitute a cause of action, were overruled and appellant excepted. The appellant then answered by (1) a general denial, and also (2) answered specially that the demand sued on had been compromised and settled, and that appellee had received money paid by appellant pursuant to such agreement of settlement; and (3) that appellant and appellee were operating under the Workmen's Compensation Act at the time of the injury, and that after appellee was injured he elected to take under said law, received money thereunder, and accepted medical services and drugs paid for by appellant under the provisions of the Workmen's Compensation Act, which he did not repay nor tender back. And with the third paragraph of answer appellant paid into court $ 700 as a tender of the accrued weekly payments admitted to be due under said act. A reply in general denial closed the issues. The case was tried by a jury, which returned a general verdict in favor of appellee for $ 7,500, together with answers to thirty-one interrogatories. Appellant filed a motion for a new trial specifying as reasons that (a) the verdict is not sustained by sufficient evidence and is contrary to law, that (b) the court refused to instruct the jury at the close of appellee's evidence to return a verdict in favor of appellant, and (c) refused to give each of twenty-five instructions asked by appellant, and (d) gave each of eight instructions on its own motion, (e) with ten more asked by the appellee, and (f) that each of certain answers to interrogatories was not sustained by sufficient evidence; also (g) that certain evidence was erroneously excluded, and certain other evidence was erroneously admitted. The motion for a new trial was overruled, and appellant excepted and duly perfected a term appeal.

The errors properly assigned are that the trial court erred in overruling the demurrers to each of the three paragraphs of complaint, and erred in overruling the motion for a new trial.

After the court had overruled appellant's motion for a peremptory instruction in its favor appellant proceeded to introduce further evidence under the issues. This constituted a waiver of its exception to the refusal to direct a verdict. Chicago, etc., R. Co. v. Medlock (1918), 187 Ind. 224, 227, 118 N.E. 810. And the specifications in the motion for a new trial that each of certain answers to interrogatories was not sustained by sufficient evidence present no questions for review, where judgment was rendered on the general verdict. Sievers v. Peters, etc., Co. (1898), 151 Ind. 642, 656, 50 N.E. 877, 52 N.E. 399; Vandalia Coal Co. v. Price (1912), 178 Ind. 546, 559, 97 N.E. 429; Chicago, etc., R. Co. v. Mitchell (1915), 184 Ind. 588, 594, 110 N.E. 680.

The substance of each of the three paragraphs is the same, so far as they relate to the particulars in which the appellant insists they were each and all insufficient to withstand the demurrer. Each paragraph alleged in substance that on April 24, 1916, the appellant was engaged in operating a factory, wherein it employed more than five persons, and employed appellee in its factory as one of its workmen; that by reason of certain alleged carelessness on the part of appellant and its workmen in operating and maintaining a certain machine in said factory, appellee was struck on the head and injured under circumstances that would make appellant liable in damages, except so far as the Workmen's Compensation Act may take away the right to maintain an action at law for the injury; that "appellant had wholly refused and neglected to comply with" said act, in that it "wholly failed and neglected to keep its liability under said compensation act insured * * * that a policy of insurance issued to appellant covering its liability under said act had been canceled on or about the 15th day of March, 1916, and that at the time appellee was injured, appellant was not insured in any manner provided by law, nor had appellant furnished to the Industrial Board, created by said act, any proof of its ability to pay direct the compensation in the amount and manner and when due as provided for in said act, all of which appellant refused and neglected to do prior to or at the time appellee was injured as aforesaid." It was also alleged that two weeks after he was injured appellant's foreman gave appellee $ 10 and told him it was a gift, and that two weeks later appellee's wife, without his knowledge or consent, received from appellant $ 12.29 which both she and appellee believed to be a gift, none of which money was received or accepted by appellee with knowledge that it was paid as compensation or under the Workmen's Compensation Act; that thereafter, about November 1, 1916, appellee learned that appellant was claiming that said sums were paid and received as compensation under said act, and thereupon, as soon as he could get the money together, he tendered back to appellant said amount of $ 22.29, with interest, and pays it into court, etc.

Appellant insists that the alleged failure to keep properly insured did not subject it to an action at law for damages for the alleged injury. The question presented by appellant's objections to each paragraph of the complaint may be stated as follows: If an employer who had elected to operate under the Workmen's Compensation Act, and had duly insured its liability in a company, authorized to transact the business of workmen's compensation insurance in this state, and had filed proof of that fact to the satisfaction of the Industrial Board, suffered its insurance to terminate and cease, but did not, for a period of several weeks thereafter, file an application for permission to carry its own insurance, and continued to operate its factory without insurance, and during such time a workman was injured, would such employe have an election to sue by an action at law to recover damages for his injury, instead of seeking compensation under the Workmen's Compensation Act? Sections 5, 6, 68 and 69 (Acts 1915 p. 392, § 8020l et seq. Burns' Supp. 1918) at the time when appellee's alleged cause of action matured, provided as follows:

"Sec. 5. Every employer who accepts the compensation provisions of this act shall insure the payment of compensation to his employes in the manner hereinafter provided, and while such insurance remains in force he or those conducting his business shall only be liable to any employe for personal injury or death by accident to the extent and in the manner herein specified." § 8020p Burns' Supp. 1918, supra.

"Sec. 6. The rights and remedies herein granted to an employe subject to this act on account of personal injury or death by accident shall exclude all other rights and remedies of such employe, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury or death." § 8020pp Burns' Supp. 1918, supra.

"Sec. 68. Every employer under this act shall either insure or keep insured his liability hereunder in some corporation, association or organization authorized to transact the business of workmen's compensation insurance in this state, or shall furnish to the Industrial Board satisfactory proof of his financial ability to pay direct the compensation in the amount and manner and when due as provided for in this act * * *." § 8020z2 Burns' Supp. 1918, supra.

"Sec. 69. Every employer accepting the compensation provisions of this act shall within thirty days after this act takes effect file with the board in form prescribed by it, and thereafter annually or as often as may be necessary, evidence of his compliance with the provisions of section 68 and all others relating thereto. If such employer refuses or neglects to comply with these provisions he shall be punished by a fine * * * for each day of such refusal or neglect and until the same ceases, and he shall be liable during continuance of such refusal or neglect to an employe either for compensation under this act or at law in the same manner as provided for in section 10." § 8020a3 Burns' Supp. 1918, supra.

Section 10, supra (§ 8020t Burns' Supp. 1918), took away from "every employer who elects not to operate under this act," the defenses of contributory negligence, assumed risks, and that the injury was caused by negligence of a fellow servant. We think that under these provisions of the statute the question as above set out must be answered in the affirmative, and that neither paragraph of the complaint is open to the objections urged against them. No error was committed in overruling the demurrers to the several paragraphs of the complaint.

The record recites that on June 6, 1918, the defendant "presents to the court its bill of exceptions containing the evidence in this cause, which bill of exceptions is examined, approved and signed by the court * * * and orders same to be and it is now filed herein and...