Weis v. Wakefield
| Decision Date | 23 December 1941 |
| Docket Number | 16702. |
| Citation | 38 N.E.2d 303,111 Ind.App. 106 |
| Parties | WEIS et al. v. WAKEFIELD. |
| Court | Indiana Appellate Court |
Pence O'Neill & Diven, of Anderson, and Brown, Reller & Mendenhall, of Richmond, for appellants.
Salyer & Cleveland, of Anderson, Donald L. Smith, of Indianapolis, Scotten & Hinshaw, of Newcastle, and J Brandon Griffis, of Richmond, for appellee.
This action was brought by the appellee against the appellants Weis & Horan, and their employee and servant, Mummaw, to recover for injuries sustained by him by reason of his having been run over by the appellants' truck.
The amended complaint alleged that on May 8, 1936, the appellee was employed at the Delco-Remy Division of General Motors Corporation at Anderson, Indiana. As a part of his duties, he was required to take dirt and trash from the premises and buildings to a pit on the premises, which was used as an incinerator. This dirt and trash was carried from the buildings to the incinerator in a tub. The appellee alleges that while in the act of dumping his tub, containing waste material, into the pit, the appellants backed their truck into him, thereby occasioning him the injuries complained of.
The complaint alleged that the appellants, Weis & Horan, were engaged as general contractors, to do hauling for the General Motors Corporation, Delco-Remy Division, and under such contract they furnished trucks and drivers to remove waste material from the incinerator.
The complaint further alleges that at the time of the appellee's injury, the truck owned by Weis & Horan was being operated by their agent and servant, the appellant Mummaw, and while he was so engaged in the discharge of his duty, the appellants negligently and carelessly backed their truck into the plaintiff without giving him a signal or warning of their approach.
The complaint also charged that the appellants negligently failed to keep a good, proper, and sufficient watch or lookout for the appellee, although they well knew of his presence at or near the place where he was injured.
The complaint further charged negligence in the manner of operating the truck, and negligence in failing to stop said truck after discovering his presence. The complaint then described his injury as a result of this accident, and concluded with a prayer for damages in the sum of $30,000.
To this complaint, a motion to make more specific was filed and overruled. This ruling constitutes the first error assigned on appeal. Answers in three paragraphs were then filed. The third paragraph of answer alleged that following the appellee's injury, and on May 22, 1936, the appellee and the Delco-Remy Division of General Motors Corporation filed with the Industrial Board of Indiana their written agreement in regard to compensation for the appellee's injuries, under the terms and provisions of the Workmen's Compensation Act, Burns' Ann.St. § 40-1201 et seq. This agreement was approved by the Industrial Board of Indiana, and the appellee was paid compensation at the rate of $11.14 per week, beginning May 16, 1936. The answer further alleged that compensation was paid to the appellee under this agreement until the 25th of October, 1936, at which time the Delco-Remy Division of General Motors Corporation and the appellee entered into an agreement before the Industrial Board of Indiana, by the terms of which agreement, the order and award of the Industrial Board was vacated and set aside. The answer further alleged that by reason of the award of the Industrial Board, by which compensation was allowed and paid the appellee, the appellee has elected to take the compensation provided by the Workmen's Compensation Act and is, therefore, precluded from maintaining this action against the appellants.
To this third paragraph of answer the appellee filed an affirmative paragraph of reply, in which he alleged that the award of the Industrial Board of Indiana had been vacated and set aside because of the misunderstanding and mistake of the parties in the filing of the original agreement, upon which the award was originally based. The paragraph of reply set out as exhibits the various proceedings had before the Industrial Board, together with the order of the Industrial Board vacating and setting aside the original award. The appellants filed a demurrer to this paragraph of reply on the grounds that "said paragraph of reply * * * does not state facts sufficient to constitute a cause of defense to defendants' separate and several third paragraph of answer." The court overruled this demurrer, and this ruling is the second error assigned and relied upon for reversal.
The case was submitted to a jury for trial, and the jury returned a verdict against all of the appellants in the sum of $5,000. Along with this verdict, the jury returned answers to twenty-eight interrogatories submitted. The appellants then filed a motion for judgment on the answers to the interrogatories. This motion was overruled, and this ruling constitutes the third error assigned in this court. Motion for new trial was then filed and overruled, and this ruling constitutes the fourth assignment of error here.
Under these assignments of error, the appellants first contend that the court erred in overruling the appellants' motion to make the complaint more specific. The complaint alleges "that at the time of plaintiff's injury there were between twenty-five and fifty persons using the pit for the purposes herein mentioned." The appellants ask that this allegation be made more specific, in that the plaintiff should be required to locate the twenty-five or fifty persons alleged to be employed in this particular locality. It seems entirely clear to us that such allegations would be purely evidentiary in character and could not, if pleaded, aid the appellants in understanding the charges of negligence, which they were called upon to meet. The general rule is that there is no reversible error in overruling a motion to make more specific, unless it is made to affirmatively appear that substantial rights of the moving party have been denied them by said ruling. Patton v. State Bank of Hardinsburg, 1938, 105 Ind.App. 381, 15 N.E.2d 106; Board, etc., v. State ex rel., 1913, 179 Ind. 644, 102 N.E. 97. The appellants nowhere point out the manner in which they have been harmed by the ruling of the court. There was, accordingly, no reversible error in overruling the motion to make more specific.
The appellants next contend that the court erred in overruling the demurrer to the second paragraph of reply to the appellee's third paragraph of answer. Under this assignment of error, the appellants contend that the evidence conclusively shows that the appellee was injured while in the course of his employment; that an award of the Industrial Board was entered in his favor, and compensation paid thereunder, which he accepted for a period of nineteen weeks. The appellants contend that these facts are sufficient to preclude the appellee from now proceeding in an action at law to recover damages against the third party, by whose negligence the appellee was injured. While it is true that this second paragraph of reply to the third paragraph of defendant's answer does not deny the existence of the award of the Industrial Board and compensation paid thereunder, yet this paragraph of reply alleges that the award of the Industrial Board was entered in his favor, as a result of a misunderstanding and mistake, and that it was not his intention or purpose to accept the compensation as fixed by the Industrial Board for his injuries, but he understood that any money so advanced to him by his employer was in the nature of a loan from his employer, and that the same was accepted with the understanding and assurance by his employer that such loan would not and did not affect his right to prosecute his cause of action against the appellants.
The reply further alleged that, by reason of these facts, the award of the Industrial Board had been vacated and set aside, and was not in force at the beginning of this action.
The reply further alleged that the appellee had not received any sum of money from his employer in settlement of his claim, and that he has never executed any release or satisfaction thereof.
The appellants' demurrer to this paragraph of reply is not in the language of the statute. The demurrer, instead of the language heretofore quoted in this opinion, should have charged that the facts stated in the paragraph of reply "are not sufficient to avoid the paragraph of answer." Sec. 2-1026, Burns' Indiana Statutes 1933, Sec. 130, Baldwin's Ind. Statute 1934. Whether or not the language used by the demurrer is sufficient to raise the question which the appellants seek to present, we need not decide, for the reason that the same question is again presented in the motion for judgment on the interrogatories, notwithstanding the verdict. Here again, the jury, by answers to interrogatories, found that the appellee was injured in the usual course of his employment by the General Motors Corporation.
The jury further found that the appellant had agreed to accept compensation from his employer by an instrument in writing, filed with and approved by the Industrial Board of Indiana. The jury further found that General Motors had paid to the appellee compensation under this order for approximately nineteen weeks, and that the appellee had also received hospital and medical service furnished by the General Motors Corporation. The jury further found that the appellee had not offered or promised to repay his employer for the hospital and medical expense received by him.
By these answers, the appellants contend that it has been...
To continue reading
Request your trial