187 Ind. 469 | Ind. | 1918
— Appellee, as employe .of appellant wire company, sustained a fracture of both bones of his right forearm while working in the wire company’s factory. Appellant The Fidelity and Casualty Company of New York, as insurer of the wire company, settled with appellee for $120. This action is against both appellants for fraud in the settlement. The verdict of the jury was for $7,500, less the settlement, and judgment was rendered against appellants for $7,380. The questions presented by motion for a new trial are as follows: (1) Verdict is not sustained by sufficient evidence. (2) Verdict is contrary to law. (3) Errors in giving and refusing instructions. We shall consider the first two together.
So far as the negligence is concerned, the complaint is based on §3, Acts 1911 p. 145 (§8020a et seq. Burns 1914), and is the failure of the wire company to furnish'appellee a safe place to work.
The evidence shows, following the allegations of the complaint, that the wire company employed from 150 to 200 men; that in its factory there was a bench along the south wall of the room about two and one-half or three feet high and about the same width; that on this bench were vertical iron spools about twelve inches in diameter at the top and about sixteen inches in diameter at the bottom; that in the top of each spool were four holes which were fitted with iron pins about two feet long with hooks on top to prevent wire from flying off; that these spools were about one foot apart and about twelve or thirteen inches from the south wall of the building; that they were rotated rapidly by electrical power transmitted by a line shaft and gears under the bench; that each spool could be stopped by a foot pedal which projected through a sheet metal apron which ex
Appellants next insist that there is not sufficient evidence from which the inference of fraud may be. drawn. The evidence shows that when appellee was hurt he was asked by the superintendent of the factory if he had a family doctor; that he said “no”; that the superintendent then told some one in the office to call a doctor, naming him; that this superintendent then took appellee in a cab to this doctor’s office; that this doctor with the assistance of another took care of the fracture; that this doctor continued to care for it from February 4, -1913, to August 25,1913; that about three or four weeks after the accident appellee told the doctor that the grocer was pressing him; that the doctor told appellee to go to the superintendent of the wire company and maybe something could be done; that appellee went and was told by the superintendent that the company had insurance and to go to the agent of the company; that appellee afterwards met the claim agent of the appellant insur
Appellants insist that the court erred in instructions on fraud and cite to sustain this proposition Kirkpatrick v. Reeves (1889), 121 Ind. 280, 22 N. E. 139. This case and the authorities there cited sustain exactly and correctly the instructions which the court gave on this subject.
Judgment affirmed with costs.
Note. — Reported in 119 N. E. 2. Master and servant: liability of master for any negligence which involves one of his personal duties, 54 L. R. A. 33; master’s knowledge of defect, 98 Am. St. 304; see under (1) 26 Cyc 1185. Release: avoidance of, on account of misstatements by physician as to nature of injury, 20 Ann. Cas. 750; Ann. Cas. 1918A 358.