Witherspoon v. Salm, 169S21

• Decision Date: 28 January 1969
• Docket Number: No. 169S21,169S21
• Citation: 243 N.E.2d 876,251 Ind. 575
• Parties: Estelle WITHERSPOON, Appellant, v. Jerome SALM, Executor of the Last Will and Testament and Estate of Herman Salm, Deceased, Appellee.
• Court: Indiana Supreme Court

Page 876

243 N.E.2d 876

251 Ind. 575

Estelle WITHERSPOON, Appellant, v. Jerome SALM, Executor of the Last Will and Testament and Estate of Herman Salm, Deceased, Appellee.

No. 169S21.

Supreme Court of Indiana.

Jan. 28, 1969.

Iglehart & Hewins, James D. Lopp, John H. Jennings, Lockyear & Lockyear, Evansville, for appellant.

Matthews & Warrum, Warren & Combs, W. C. Welborn, Evansville, for appellee.

PER CURIAM.

This matter came to this court on a petition to transfer, and this court has taken the case on transfer.

Appellant Estelle Witherspoon brought her original action against the appellee Jerome L. Salm, Executor of the Last Will and Testament and Estate of Herman Salm, Deceased, for personal injuries, loss of wages and damages sustained by appellant, while appellant was a passenger in an automobile accident in Crittenden County, State of Kentucky, on the 9th day of January, 1952. At the time of the collision appellant was within the scope of her employment and her injuries arose out of and during the course of her employment for Salm's Incorporated. As a result of an agreement filed with the Industrial Board of the State of Indiana workmen's compensation benefits were paid to appellant.

The cause of action arose on January 9, 1952. The decedent, Herman Salm, died on January 10, 1952. Claimant filed her claim in this action October 2, 1952. The transcript, consisting of some 232 pages, consists mainly of the pleadings of the parties, amendments to be complaint, and demurrers.

The only question which we deem it necessary to address ourselves to on appeal concerns the amended third paragraph of defendant's amended answer and plaintiff's response thereto. This amended third paragraph of the amended answer alleged that Herman Salm was the president, director, officer and manager of said employer, Salm's Incorporated, and that because of his relationship to the company was exempt from the personal liability under the provisions of Burns' Ind.Stat. § 40--1205. The plaintiff-appellant demurred to this paragraph of the amended answer on the ground that it did not state facts sufficient to constitute a defense to said claim. The trial court overruled the demurrer and ruled that the plaintiff must reply to the amended answer.

Thereafter, the plaintiff-appellant refused to amend or plead further, admitting therefore, the facts as alleged, and the court entered the following judgment:

'It is therefore considered, ordered and adjudged by the court that the plaintiff take nothing by way of her complaint, and that the defendant be discharged and recover its costs herein.'

Does the Indiana Workmen's Compensation Act bar the plaintiff's suit against the personal estate of the deceased? Burns' § 40--1205, supra, reads in part: '* * * he or those conducting his business and his workmen's compensation insurance carrier 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.'

The applicable section of Burns' § 40--1213, supra, reads: 'Whenever an injury or death for which compensation is payable under this act (§§ 40--1201--40--1414), shall have been sustained under circumstances creating in some other person than the employer and not in the same employ a legal liability to pay damages in respect thereto, the injured employee, or his dependents in case of death, may commence legal proceedings against such other person to recover damages notwithstanding such employer's * * * payment of or liability to pay compensation under this act.' Was the deceased Herman Salm included in the phrase 'those conducting his business' and therefore would he be free from personal liability or included in the category 'some person other than the employer' and therefore personally liable for the injuries inflicted upon Mrs. Witherspoon?

This is a novel question in State of Indiana. A case with facts strikingly similar to the case on appeal is Warner v. Leder (1952), 234 N.C. 727, 69 S.E.2d 6. Warner, supra, involved a plaintiff who was injured while riding in a fellow employee's automobile, both North Carolina residents, in a foreign state, South Carolina, while on a business trip for the parties' employer. Plaintiff applied for and received benefits under the Workmen's Compensation Act. Plaintiff then tried to sue the defendant personally. North Carolina Statute G.S. § 97--9 limits the liability of the employer 'or those conducting his business' to the payment of such sums as may be due...