DISSENTING OPINION. I do not agree with the conclusion reached by the majority of the court. There is no averment in the complaint that appellee was employed in the operation of calender rolls in laundrymachinery, and unless she was so employed, she was not unlawfully employed. The complaint avers that at the time of her injury appellee was operating "a mangle which is a machine used by defendant in its place of business to iron articles by machinery, and is a laundry machine, consisting with other parts, of a projecting shelf in the nature of a table and a revolving cylinder or cylinders that pressed articles against a heated surface with great force in order to iron the articles that were fed into said machine and under said cylinder or cylinders." There is no suggestion that there were calender rolls *Page 17 connected with such laundry machinery. Appellee seems to have assumed that the statute in force at the time of the accident, being § 5 of the Child Labor Act of 1911, Acts 1911 p. 511, § 8020e Burns 1914, prohibited the employment of a minor under sixteen years of age in the operation of laundry machinery, but I do not so read the statute. So far as here involved it provides that "any child under the age of sixteen (16) years shall not be employed or permitted to operate circular or band saws, * * * wire or iron straightening machinery, rolling mill machinery, punch or shears, grinding or mixing mills, calender rolls inrubber manufacturing or laundry machinery, corrugating rolls of the kind used in roofing or washboard manufacturing." (My italics.) That it is the duty of the court to construe a statute according to the obvious meaning and import of the terms used therein, is well established. Green v. Cheek (1855),5 Ind. 105; Townsend v. Meneley (1905), 37 Ind. App. 127, 74 N.E. 274, 76 N.E. 321. The application of this rule to this statute compels this court, in my opinion, to say that it was not the operation of all laundry machinery that was prohibited, but only the operation of calender rolls in laundry machinery. § 22 of the School Attendance Act, Acts 1921 p. 352, the legislature has so changed the law here involved as to prohibit the employment of children under sixteen years of age in operating any laundry machinery, which is in harmony with appellee's contention as to the meaning of § 5, supra. If it so meant before the enactment of § 22, supra, then the legislature of 1921 did a useless thing. It plainly appears by the language above quoted that it did not so mean, hence the change.
From the averments of the complaint it does not appear that appellee was unlawfully employed. It was *Page 18 incumbent on her to aver and prove such facts as would show her right to sue at law for her injuries. Talge Mahogany Co. v.Burrows (1921), 191 Ind. 167, 176. It is presumed, nothing appearing to the contrary, that every employer and every employee have accepted the provisions of the Workmen's Compensation Act respectively to pay and to accept compensation for personal injury by accident arising out of and in the course of the employment, and shall be bound thereby, unless notice of non-acceptance shall have been given prior to the accident, as required by the act. Acts 1919 p. 673, § 9447 Burns 1926, § 8020m Burns' Supp. 1921. And the rights and remedies granted to an employee subject to the act, on account of personal injury by accident, excludes all other rights and remedies of such employee at common law or otherwise on account of such injury. Acts 1915 p. 392, § 9451 Burns 1926, § 8020pp Burns' Supp. 1921. Appellee's remedy was with the Industrial Board, and not elsewhere. The St. Joseph Superior Court had no jurisdiction of her cause. This question is presented by appellant's so-called verified plea in abatement, which avers in substance that: appellee was by appellant lawfully employed and appellant was at all times mentioned in said complaint an "employer" of appellee, and appellee was at all times an "employee" of appellant within the meaning of the Workmen's Compensation Act, and at no time during the employment had either given the other notice that either had determined not to be bound by such act, and that the injury of which the appellee complained arose out of and in the course of appellee's employment by appellant, and it is prayed therein that the action do abate for the reason that the court has no jurisdiction of the subject-matter of the complaint, but that jurisdiction thereof lies exclusively in the Industrial Board. *Page 19
It is contended that the plea is to the jurisdiction and is to be distinguished from a plea in abatement. That such pleas as the one here involved are in the nature of pleas in abatement is apparent, and that they are frequently termed pleas in abatement has been many times decided. National Fraternity v. WayneCircuit Judge (1901), 127 Mich. 186, 86 N.W. 540; Guthman v.Guthman (1885), 18 Neb. 98, 24 N.W. 435; Scott v. Waller (1872), 65 Ill. 181; Eagle Iron Co. v. Baugh (1906), 147 Ala. 613, 41 So. 663. But whether such plea is to be called a plea in abatement or a plea to the jurisdiction can make little difference.
In Jones v. Cincinnati, etc., Co. (1860), 14 Ind. 89, the court holds that: "The order of the pleading has always been, and is still, under the code, that pleas or answers, to the jurisdiction, to the disability of the parties, etc., must precede those to the merits; and this because, as says Mr. Chitty, in his Pleadings, Vol. 1, p. 440, `each subsequent plea admits that there is no foundation for the former, and precludes the defendant from afterwards availing himself of the matter.'" This authority is cited with approval on the proposition that pleas in abatement must be filed in their order and cannot be filed with or after pleas in bar, in the following cases:Keller v. Miller (1861), 17 Ind. 207; Carpenter v.Mercantile Bank (1861), 17 Ind. 254; Kenyon v. Williams (1862), 19 Ind. 44; Smith v. Pedigo (1893), 145 Ind. 361, 33 N.E. 777, 44 N.E. 363, 19 L.R.A. 433, 32 L.R.A. 848; Sanders,Admx., v. Hartge (1897), 17 Ind. App. 249, 46 N.E. 604;Sowle v. Holdridge (1861), 17 Ind. 236. Such a plea is thus recognized as a plea in abatement.
The learned author, quoted above, on the same page on which the quotation is found, states the law to be as follows: "The law has prescribed and settled the order of pleading which the defendant is to pursue, and *Page 20 although it has been objected that as regards the pleas in abatement the division is more subtle than useful, yet as regulating in some respects the forms of commencements and conclusions of pleas and the right to plead another plea in abatement in some cases after judgment against the defendant of respondeas ouster, it is deemed here expedient to adhere to the ancient order, especially as no preferable arrangement has been suggested, viz.: 1st. To the jurisdiction of the court. Secondly. To the disability etc. of the person * * *. Thirdly. To the count or declaration. Fourthly. To the writ * * *. Fifthly. To the action itself in bar thereof." Thus it will be seen that by the ancient order of common-law pleading pleas to the jurisdiction of the court must precede pleas in bar. For the purpose of this case, we do not need to determine whether this ancient rule still strictly prevails, or whether it was the duty of the court, upon having its attention called to its want of jurisdiction, to dismiss the case. It is sufficient to say that the plea was properly and timely pleaded.
It is my opinion that the demurrer to the plea, in abatement or to the jurisdiction of the court, as we may choose to name it, should have been overruled and that, for this error, the judgment of the court should be reversed.