Witherspoon v. Salm, 16908

• Decision Date: 20 May 1968
• Docket Number: No. 1,No. 16908,16908,1
• Citation: 142 Ind.App. 655,237 N.E.2d 116
• Parties: Estelle WITHERSPOON, Appellant, v. Jerome L. SALM, Executor of the Last Will and Testament and Estate of Herman Salm, Deceased, Appellee
• Court: Indiana Appellate Court

Page 116

237 N.E.2d 116

142 Ind.App. 655

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

No. 16908.

Appellate Court of Indiana, Division No. 1.

May 20, 1968.

Rehearing Denied July 2, 1968.

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

Jerome L. Salm, Warren & Combs, Welborn & Miller, Evansville, for appellee.

CARSON, Chief Judge.

This is an appeal from the Knox Circuit Court. The action below arose out of the appellant's claim for damages to which appellee filed answer in three (3) paragraphs under Rule 1--3 of the Rules of the Supreme Court of Indiana. Paragraph I, being an answer in denial. Paragraph II sets out an affirmative defense that the appellant was acting within the scope of her employment at the time of her alleged injuries and that said injuries arose out of said employment; that as a result thereof, an agreement was filed with the Industrial Board and compensation benefits were paid to the plaintiff-appellant; that the plaintiff-appellant's cause of action did not accrue within six (6) months before the commencement of the action. Paragraph III of the answer alleges substantially the same facts, but further alleges that Herman Salm was President, Director, and stockholder of the employer, Salm's Incorporated, and that Herman Salm was not some person other than the employer, and against whom a legal liability to pay damages was created within the meaning of Section 13 of the Workmen's Compensation Act.

To the appellee's second paragraph of answer, the plaintiff-appellant demurred, stating that said paragraph did not state facts sufficient to constitute a cause of defense, and contended, among other things, that the cause of action arose under the laws of the State of Kentucky; that the accident occurred in Kentucky; that the Indiana Workmen's Compensation Act has no extraterritorial effect and that the substantive law of Kentucky would apply. Plaintiff-appellant demurred to the appellee's third paragraph of answer, alleging that said paragraph did not state facts to constitute a defense in that the decedent was a person other than the employer within the meaning of the Act and was therefore a proper third-party tortfeasor.

The trial court overruled plaintiff-appellant's demurrer to the second paragraph of answer and third paragraph of answer. Following this action, appellant filed reply in eight (8) paragraphs, however, only four (4) of them are before this court on appeal.

Appellant's first paragraph of reply is filed pursuant to Rule 1--3 of the Rules of the Supreme Court. The third, fourth and fifth paragraphs substantially allege that the Executor of the Estate of Herman Salm, deceased, was an officer of the corporation and also and attorney and advised plaintiff-appellant that her rights would not be affected by signing Workmen's Compensation documents and that plaintiff-appellant had two years from the date of the occurrence in which to file a claim against the Estate of Herman Salm; that plaintiff-appellant relied upon these representations and that she had no knowledge that the period of time was less than two years in which to file her claim and plaintiff-appellant therefore pleads estoppel of the appellee to rely upon these matters as a defense.

To the various pleadings thus filed by the plaintiff-appellant, the appellee filed demurrers contending that the replies did not set forth facts sufficient to avoid the second amended paragraph of answer.

The trial court sustained the defendant-appellee's separate demurrers to the appellant's first, third, fourth and fifth paragraphs of reply.

Thereafter, the plaintiff-appellant refused to amend or plead further 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.'

Following the entry of the judgment, the appellant filed praecipe for an appeal and assignment of errors. The assignment of errors reads as follows:

'The Appellant avers that there is manifest error in the judgment and proceedings in this cause which is prejudicial to the Appellant in this:

'1. The trial court erred in sustaining Appellee's demurrer to Appellant's second amended first paragraph of reply to Appellee's amended second paragraph of answer.

'2. The trial court erred in sustaining Appellee's demurrer to Appellant's second amended third paragraph of reply to the Appellee's amended second paragraph of answer.

'3. The trial court erred in sustaining Appellee's demurrer to Appellant's second amended fourth paragraph of reply to Appellee's amended second paragraph of answer.

'4. The trial court erred in sustaining Appellee's demurrer to Appellant's second amended fifth paragraph of reply to Appellee's amended second paragraph of answer.

'5. The trial court erred in overruling Appellant's demurrer to Appellee's third paragraph of answer.

'6. The trial court erred in overruling Appellant's demurrer to Appellee's amended second paragraph of answer.'

The demurrers filed serve to raise various questions of law, which may be summarized as follows:

1. What statute of limitations governs this cause of action?

2. Is the appellee estopped to assert the tolling of the statute of limitations by virtue of the alleged fraudulent misrepresentations of Jerome Salm?

3. Was Herman Salm a proper 'third-party' tortfeasor under the Workmen's Compensation Act?

4. Should the substantive law of Kentucky or of Indiana control?

5. Has the appellant elected her remedy by receiving Workmen's Compensation benefits?

For purpose of clarity, we feel it is necessary to briefly set forth the facts leading to the initiation of this action.

Herman Salm, deceased, was the President, a Director and a stockholder of Salm's Incorporated, a corporation authorized to do business in Indiana. Appellant held the position of purchasing agent, with Salm's, Incorporated.

On, or about the 9th day of January, 1952, Herman Salm, accompanied by appellant and other employees of Salm's Incorporated, were on a business trip to one of Salm's stores in paducah, Kentucky. A company car, driven by Herman Salm, was used for transportation.

Appellant alleged that on the same day, as she was riding as a passenger in said automobile, being driven by Herman Salm, on Highway 60, approximately three miles north of the City of Marion, Crittenden County, Kentucky, Herman Salm, deceased, willfully and wantonly, drove said automobile across the center line into the path of an approaching automobile; and, that by reason thereof, appellant was seriously injured.

Herman Salm died the day following the accident as a result of injuries occasioned by the accident. Appellant filed a claim for personal injury against the Estate of Herman Salm, in the Vanderburgh Probate Court. Subsequent to a motion for change of venue, the cause was transferred to the Knox Circuit Court, from which this appeal was taken.

As there is a total lack of evidence to the contrary, appellant is conclusively presumed to have accepted the provisions of the Workmen's Compensation Act in toto and where applicable. Acts of 1943, ch. 114, § 1; and, Acts of 1929, ch. 172, § 3; Burns' Ann.Stats., (1952 Replacement), §§ 40--1202, 40--1203, respectively.

See also: Kelly v. Girdler Corp., 7 Cir. (1953), 207 F.2d 703; followed by our Supreme Court in Wright-Bachman, Inc. v Hodnett, et al. (1956), 235 Ind. 307, 133 N.E.2d 713.

Acts of 1929, ch. 172, § 20; Burns' Ann.Stats. (1952 Replacement), § 40--1220 provides:

'Injury or death occurring outside the state.--Every employer and employee under this act (§§ 40--1201--40--1414, 40--1503--40--1704) shall be bound by the provisions hereof whether injury by accident or death resulting from such injury occurs within the state or in some other state or in a foreign country. (Acts 1929, ch. 172, § 20, p. 536.)'

Approximately nine (9) months elapsed between the date of the accident and the date upon which plaintiff-appellant's claim was filed. Therefore, defendant-appellee maintains that the action was not filed within the six-month period provided in Acts of 1951, ch. 258, § 1; Burns' Ann.Stats., (1952 Replacement), § 40--1213; and, is forever barred.

We conclude that the six-month period specified in § 40--1213, supra, does control the bringing of this action and that plaintiff-appellant failed to comply therewith. However, plaintiff-appellant, in her third paragraph of reply, avers that defendant-appellee is estopped from asserting the statute of limitations as a bar, by virtue of the fraudulent misrepresentations of Jerome Salm, brother of the deceased and herein party-appellee, as Executor of the Estate of Herman Salm.

Plaintiff-appellant alleges that Jerome L. Salm, brother of the deceased; an officer of Salm's, Incorporated; Executor of the Estate of Herman Salm; and, an attorney; advised her that she had two years from the date of the occurrence within which to file a claim against Herman Salm (or his estate).

Generally, a misrepresentation as to a matter of domestic law is merely an expression of opinion and will not constitute an estoppel to a defense which claims the tolling of the statute of limitations.

The general rule does not apply, however, where:

'(1) the party making the representations is especially skilled in the law and the party to whom the representations are made is not so skilled, or (2) where there exists a relation of trust and confidence between the parties.'

Waugh v. Lennard (1949), 69 Ariz. 214, 211 P.2d 806, 814; Kinney v. Dodge (1884), 101 Ind. 573.

Defendant-appellee contends that as Jerome L. Salm represented an interest adverse to that of the appellant; the appellant knew of the adverse interest; and, is precluded from asserting the alleged fraud as an...