Wright Bachman, Inc. v. Hodnett

CourtSupreme Court of Indiana
Citation235 Ind. 307,133 N.E.2d 713
Docket NumberNo. 29277,29277
PartiesWRIGHT BACHMAN, Inc., Appellant, v. Nolan Jack HODNETT, Goshen Churn & Ladder, Inc., Appellee.
Decision Date12 April 1956

Page 713

133 N.E.2d 713
235 Ind. 307
WRIGHT BACHMAN, Inc., Appellant,
Nolan Jack HODNETT, Goshen Churn & Ladder, Inc., Appellee.
No. 29277.
Supreme Court of Indiana.
April 12, 1956.

[235 Ind. 310]

Page 714

Fansler, Fauvre, Dongus & Chambers, Hugh E. Reynolds, Michael L. Fansler and Slaymaker, Locke & Reynolds, Indianapolis, for appellant.

James J. Stewart, Alvin E. Meyer, Murray, Mannon, Fairchild & Stewart, and Townsend & Townsend, Indianapolis, for appellee.

LANDIS, Judge.

This action was brought by appellee Hodnett (hereinafter called appellee) against appellant and another, to recover damages for personal injuries in falling from a scaffold, which allegedly collapsed because of a defective ladder. The first paragraph of amended complaint alleged breach of warranty concerning the ladder, and the second paragraph was grounded on negligence in the ladder's construction.

Answer in five paragraphs was filed to the complaint. Trial by a jury resulted in a verdict of $15,000 for appellee against appellant upon the first paragraph of complaint. Appellant has assigned as error the overruling of its motion for new trial.

The facts most favorable to appellee show that in April 1951 appellee purchased the ladder from appellant, who, according to appellee, stated: The ladder 'was vertical grain fir with oak rounds and had been tested for five hundred pounds per rung.' That, 'He [235 Ind. 311] didn't have a hickory rung ladder, but he told me this one was just as good as any * * *.'

On September 20, 1951, when the ladder was being used by appellee, one of the rungs broke, permitting the scaffold to collapse, as a result of which appellee fell some 12 to 15 feet to the ground, and was seriously injured. Appellee was employed by a construction company when injured, and on January 4, 1952, filed an agreement with said employer for the payment of compensation, which was approved by the Industrial Board. Some time in September 1953 appellee informed appellant as to the breaking of the ladder, his injuries, and that a suit would be filed against the company.

Page 715

Thereafter, on September 19, 1953, the present action for damages against appellant was filed, and in March 1954 appellee's compensation agreement previously filed with the Industrial Board, was set aside and revoked, and appellee entered into a loan agreement with his employer concerning the payments received.

Appellant's first contention on this appeal is that a verdict should have been directed for appellant for the reason appellee 'failed to allege and prove that notice was given to this appellant of the breach of warranty relied upon within a reasonable time after he knew or ought to have known of such breach' referring to the Uniform Sales Act, § 49. 1

In Indiana prior to the passage of the Uniform Sales Act it had been decided that notice of breach of warranty[235 Ind. 312] was not a prerequisite to the bringing of an action by the buyer for such breach. Means v. Means, 1882, 88 Ind. 196; Ferguson v. Hosier, 1877, 58 Ind. 438. This rule is prevalent in England to this day, and it should be noted the English Sale of Goods Act, while similar to the Uniform Sales Act adopted in this country in many respects, does not contain the provisions of § 49 of the latter act requiring notice, which has been cited by appellant. 3 Williston on Sales, § 484, p. 37 (Rev. ed. 1948).

The Uniform Sales Act, while changing the common law of sales in many respects, nevertheless specifically provided that nothing in said act '* * * shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable * * *.' 2

The action before us for personal injuries allegedly received by appelleebuyer on account of defects in the chattel sold and covered by appellant's sales warranty is unquestionably an action for special or consequential damages, 3 and therefore we must conclude that as to such special damages the Uniform Sales Act did not change the pre-existing Indiana law which did not require notice of breach of warranty to be given by the buyer before bringing suit. Accordingly, we hold against appellant in its contention that a verdict should have been directed against appellee because of the insufficiency of notice by appellee of breach of warranty.

[235 Ind. 313] We shall next consider appellant's second contention that a verdict should have been directed for appellant for the reason that appellee's suit was not brought within six months after the cause of action accrued, as required by § 13 of the Workmen's Compensation Act. 4

Appellee admits the existence of this statute, but contends:

(1) It is not applicable because the case at bar involved an action ex contractu instead of an action ex delicto, and that § 13 of the Workmen's Compensation Act only applies to actions ex delicto; and

(2) That the portion of § 13 of the Workmen's Compensation Act prescribing

Page 716

a six months' statute of limitations is unconstitutional and void.

It is well settled that an action of breach of warranty may be either a contract action or a tort action, depending on the allegations of the complaint. 5 The seller's warranty has been described as a curious hybrid of tort and contract, unique in the law. 6

The distinction between tort and contract actions which appellee is attempting to make in the case before [235 Ind. 314] us, would place tort actions for breach of warranty subject to § 13 of the Workmen's Compensation Act, and contract actions of the same character, outside the act. If appellee's position is sound, Workmen's Compensation employees under the statute here involved, 7 would be limited in bringing tort actions for breach of warranty to six months, and also their employers would be entitled to subrogation rights for compensation paid. However, employees under Workmen's Compensation would not be limited in bringing contract actions for breach of warranty to six months, but would have six years to bring their suits, 8 and would not be affected by any subrogation rights of the employer for compensation paid, as such rights would not exist, and such employees could seemingly recover both from the employer and the third person.

Did the legislature intend any such distinction between damage actions ex contractu and ex delicto by their enactment of § 13 of the Workmen's Compensation Act? The pertinent portion of this section in this connection says:

'Whenever an injury * * * for which compensation is payable under this act, shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee, * * * may commence legal proceedings against such other person to recover damages * * *. In such case, however, if the action against such other person is brought by the injured jured employee * * * and * * * settlement is made with such other person, * * * there shall be paid to the employer the amount of compensation paid or to be paid by him [235 Ind. 315] to such employee * * *, plus the medical, surgical, hospital and nurses services and supplies * * *.'

We are not able to conclude that any such general language as above employed by the legislature, to wit:

'Whenever an injury * * *, for which compensation is payable under this act, * * *'

should be so narrowly construed as to apply only to damages in tort and to exclude damages in contract. To adopt appellee's limited construction of this statute would require this court to rewrite the language of the statute to provide:

'Whenever an injury from a tort * * * for which compensation is payable under this act * * *.'

We cannot indulge in any such judicial legislation, and must, accordingly, hold in the case before us that § 13 of the Workmen's Compensation Act applies to actions ex contractu for breach of warranty, just as it does to actions of ex delicto for breach of warranty.

Page 717

We now proceed to the appellee's contention that § 13 of the Workmen's Compensation Act 9 is unconstitutional.

Appellee first says this section of the act embodies matters not properly connected with the title and is, therefore, violative of Article 4, Section 19, of the Indiana Constitution. 10

[235 Ind. 316] The title to the act is in part as follows:

'An Act to amend * * * an act entitled * * * 'An act concernerning workmen's compensation; to acquire medical, surgical, hospital and nurse care for employees injured by accidents arising out of and in the course of their employment; to provide compensation for injuries and death of employees resulting from such accidents; to provide methods of insuring the payment of such compensation; to abolish certain personal injury litigation; * * *.''

The pertinent portion of the act is as follows:

'If said employee * * * shall fail to institute legal proceedings against such other person for damages within six (6) months after said cause of action accrues, * * * the right of said * * * [employee] to proceed against said other person shall be forever barred and the employer having paid compensation or having become liable therefor, may collect * * * from the other person in whom legal liability for damages exists, the compensation paid, or payable, to the injured employee, * * * plus such medical, * * * supplies, * * * paid by him, or for which he has become liable. The employer may commence such action * * * against the other person in whom legal liability for damage exists at any time within one (1) year after said six (6) months period has expired * * *, notwithstanding the provisions of any statute of limitations to the contrary.' Acts 1951, ch. 258, § 1, p. 713, being § 40-1213, Burns' 1952 Replacement, supra.

At the outset it must be conceded as was stated by this court in a recent case in considering the constitutionality of a statute:

'We recognize the well established principle...

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