Ideal Laundry & Dry Cleaning Co. v. MacKowiak

*9 Dausman, P. J. In disposing of the assignment of errors, we will follow the order of events as they occurred in the trial court. *10 *9 The so-called plea in abatement rests on the proposition that the court had no jurisdiction of the subject of the action for the reason that if the defendant is *10 liable at all, it is liable solely by virtue of the Workmen’s Compensation Law. The proposition involves a misconception of the meaning of jurisdiction of the subject of the action. Whether or not the court had jurisdiction of the subject of the action must be determined by the answer to the question, Did the court have jurisdiction of the class of actions to which this action belongs? Undoubtedly this is a civil action—an action at law; and, by referring to the appropriate statute, it may be readily ascertained that the court had general jurisdiction of the class of actions to which this one belongs. §1588 Burns 1926, §1575 Burns 1914, Acts 1913 p. 35; Pease v. State (1921), 74 Ind. App. 572, 129 N. E. 337; 1 Watson, Revision Work’s Practice §501. The averments in the so-called plea in abatement do not even tend to controvert the jurisdiction of the court. They, could be available only in an answer in bar, since their only effect is to challenge the plaintiff’s right to recover in an action at law. Ayrshire Coal Co. v. Thurman (1920), 73 Ind. App. 578, 585. The court did not err in sustaining the demurrer to the so-called plea in abatement. The three specifications in the memorandum accompanying the demurrer to the complaint will be considered together. They are merely three different ways leading to the same question, viz.: Does the complaint aver facts sufficient to show that the employment was unlawful? The defendant’s contention was that §5 of the statute, commonly known as the Child Labor Law (§8022e Burns 1914, Acts 1911 p. 511), should not be interpreted so as to make it unlawful to permit a child to operate any laundry machinery, but should be interpreted so that the inhibition would be applicable only to a case where a child is permitted to operate “calender rolls in laundry machinery.” With respect to this feature, the attitude of defendant’s *11 counsel is peculiar. They assumed that the statute is subject to two interpretations. They urged that, on one interpretation, the complaint is bad because that interpretation would render the statute unconstitutional. They also urged that, on the other interpretation, the complaint is bad because it does not specifically aver that the plaintiff was permitted to operate “calender rolls in laundry machinery.” When read attentively, it will be observed that the complaint avers that the plaintiff was ordered and directed to operate a laundry machine known as a mangle; that the mangle contained certain revolving cylinders which pressed with great force the articles to be ironed against a heated surface; that the articles to be ironed had to be fed into the machine and under the cylinders by the operator; and that the operation of the machine was attended by great danger, for the reason that the hands of the operator were likely to be caught therein. From this description, it sufficiently appears that the rolls or cylinders work on the principle of a calender. Whether or not they are entitled to be called “calender rolls” must depend, of course, upon the evidence. If counsel for the defendant were of the opinion that the description left a doubt as to the precise character of the rolls, they should have moved the court for an order requiring the plaintiff to make her complaint more definite and certain in that respect. In this connection, it should be noted that it is impossible to know from the ruling on this demurrer what, if anything, the trial court decided concerning the defendant’s contention. Evidently the court was of the opinion that the complaint is good on some theory; but, as to the two theories presented by the defendant, we do not know which one was adopted. Indeed the court may have been of the opinion that the complaint is good on either theory. The court did not err in overruling the demurrer. *12 We are informed by the appellant’s brief that the sole purpose of the second paragraph of answer was to present the jurisdictional question—the identical question previously presented by the demurrer to the so-called plea in abatement. On that theory, the action of the court in striking it from the record could not constitute reversible error; for the reason that the defendant had previously procured a positive ruling on the same question, to which ruling an exception had been duly given, and the question therein involved has been reviewed in this opinion. See Weideroder v. Mace (1916), 184 Ind. 242. The trial court has a wide discretion in regulating the examination of prospective jurors touching their competency to sit as fair and impartial triers of the facts. But it is uniformly held that questions which are irrelevant should be excluded. Martin v. Lilly (1919), 188 Ind. 139; Goff v. Kokomo Brass Works (1909), 43 Ind. App. 642; 2 Elliott, Gen. Prac. §517. Counsel have not pointed out, nor have they even suggested, in what respect a juror’s attitude toward the compensation law might influence him in the discharge of his duty in the case at bar. We are unable to conceive how a consideration of that law could possibly come within the province of the jury. We are of the opinion that the questions were entirely irrelevant and that the objections thereto were properly sustained. Whether the question asked Antoinette Crockett was incompetent because of the particular grounds stated in the objection depends upon the attitude of thel parties toward the subject of calender rolls. The record suggests that one of the questions in dis-j pute was whether or not the machine at which the! plaintiff received her injuries contained calender rolls.The complaint does not use the words “calender rolls.” But it does contain a description of certain cylinders *13 or rolls which constituted a part of the machine. Were they in truth calender rolls? The words “calender rolls” may be highly technical and not within the realm of common knowledge. In that event, the question was for the jury, and both court and jury were entitled to be enlightened by evidence on the subject; On that basis, the objection was properly sustained on the grounds therein stated. But the ruling would not constitute error if valid on any other ground. The court may have been of the opinion that because of the form in which it was asked, the question could be properly answered only by an expert. The record does not disclose that the question relates to the defendant’s laundry. Certainly it does not relate to the particular machine at which the plaintiff received her injury. For aught that appears from the record, the question was wholly irrelevant. The offer to follow the question by other questions is wholly without force; for the defendant’s right, if any, to prove by subsequent questions and answers the things mentioned, did not depend in the least upon the answér to the first question. The plaintiff was injured November 26, 1919; the complaint was filed November 2, 1920; and the trial commenced on June 6,1922. The question asked the witness Harrison M. Crockett related to the time of the trial. Of course, the rolls might have been removed from the machine at some time between the date of the accident and the date of the trial. The defendant announced its purpose to follow the inquiry with other questions “to show that the only calender rolls in the Ideal Laundry at the time of the injury in question were contained in the collar machine.” (Our italics.) We do not know what, if anything, was said by counsel or the court on this subject in addition to what is shown by the bill of exceptions. But the bill forcefully suggests that the objection to the question *14 was sustained because it did not call, for the mechanism of the machine—as to whether or not it contained calender rolls—at the time of the injury. There is nothing in that ruling which precluded counsel for the defendant from asking all the questions they desired to ask concerning the mechanism of the machine at the time of the injury. The action of the court in sustaining the objection was not erroneous. Counsel for the appellant have combined in their brief instructions numbered respectively 1, 2, 5, 6 and 8, and they assert that each instruction in the group is erroneous for the reason that therein “the jury were told that if they found that the plaintiff was authorized by the defendant at the time of the injury to feed the mangle, she was illegally employed and their verdict should be for the plaintiff.” (Our italics.) None of those instructions is subject to that criticism; for the reason that none of them contains the words on which the criticism is based. Nor does any instruction contain any statement which may be rightfully interpreted to mean what the criticism assumes to be its- meaning. Whether the mangle was in truth such a machine as comes within the statute was a question for the jury under proper instructions. By the instructions, the court did not invade the province of the jury. Furthermore, the instructions requested by the defendant rest on the assumption that the mangle was a machine which the defendant was prohibited from employing or permitting the plaintiff to operate, and disclose that the only defense was that, at the time of the injury, the plaintiff was “feeding the mangle” in violation of the express orders of her employer. The eighth instruction is not vulnerable on the ground that it eliminates contributory negligence as a defense. The principle on which contributory negligence was held to be available in the *15 case of Gifford v. Haynes Automobile Co. (1922), 80 Ind. App. 95, 136 N. E. 88, is not applicable to the case at bar. There is no contention that the evidence is not sufficient to sustain the verdict. An impressive feature of this appeal is the fact that there has been no attempt to bring the evidence into the record. In this connection, some consideration must be given a feature which, although of great importance in our system of jurisprudence, is too often ignored. The trial courts occupy a momentous field in the administration of justice. A great work has been committed to them. A greai responsibility rests upon them. They are clothed with ample power to render unto every litigant that which is his due under the law and the facts. In comparison with an appellate tribunal, a trial court has a free hand. It may freely correct its own errors, where its attention is called to them in time. Within the limits of the law, it may grant new trials; and the law is generous in that respect. Usually when the trial court acts, it has before it the litigants or their counsel or both. The trial judge observes the conduct of litigants, counsel, witnesses and jurors, and occupies an advantageous position for forming opinions and drawing conclusions with respect to all matters of fact. In an appellate tribunal, the situation is different. All we know, all we can know, concerning a controversy is what the record discloses. And the record comes to us in cold type. It is rigid. This court may neither add to, nor subtract from, that which is legitimately in the record; and must scrupulously ignore whatever may be found in the transcript which is not legitimately a part of the record. All presumptions are in favor of the correctness of the rulings of the trial court. If any part of the record is ambiguous, it is the duty of this court to adopt that interpretation which tends to *16 sustain the judgment. It is also the duty of this court to scrutinize the record, lest it misapprehend the effect thereof; for a reversal must not rest on conjecture. In the oral argument, counsel for the appellant urged with great earnestness that the trial court misinterpreted that part of the statute which is applicable to this cause (§8022e Burns 1914, supra) ; but a thorough investigation reveals that no question concerning the interpretation of the statute is presented by the record. When the record has been tested and appellant’s briefs have been considered in accordance with the rules of appellate procedure, it becomes apparent that no error has been shown in the ruling on the motion for a new trial. The motion to arrest judgment is based on the proposition that the complaint does not state a cause of action. That question has been considered. The motion was properly overruled. Judgment affirmed.