31 N.E. 956 (Ind. 1892), 15,279, Hoosier Stone Co. v. McCain, Administrator

Docket Nº:15,279
Citation:31 N.E. 956, 133 Ind. 231
Opinion Judge:Elliott, J.
Party Name:Hoosier Stone Company v. McCain, Administrator
Attorney:M. F. Dunn and G. G. Dunn, for appellant. J. W. Buskirk, J. Riley and J. Giles, for appellee.
Case Date:October 08, 1892
Court:Supreme Court of Indiana
 
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Page 956

31 N.E. 956 (Ind. 1892)

133 Ind. 231

Hoosier Stone Company

v.

McCain, Administrator

No. 15,279

Supreme Court of Indiana

October 8, 1892

Petition for a Rehearing Overruled December 16, 1892.

From the Lawrence Circuit Court.

Judgment reversed, with instructions to award a new trial.

M. F. Dunn and G. G. Dunn, for appellant.

J. W. Buskirk, J. Riley and J. Giles, for appellee.

OPINION

Page 957

[133 Ind. 232] Elliott, J.

The appellee, as the administrator of the estate of James A. McCain, deceased, seeks to recover damages for the death of the deceased, which, it is charged, was caused by the negligence of the appellant. The complaint alleges that the deceased was in the service of the appellant and was injured while in the line of his duty, without any fault on his part.

It is insisted by the appellant's counsel that the third paragraph of the complaint is bad, for the reason that it affirmatively shows that the injury to the appellee's intestate was caused by the negligence of a co-employe. We can not agree with counsel in the construction which they place upon the complaint, although it is true that the pleading is not entirely beyond criticism. The averment is that the "defendant, by its agents and employes acting under the orders of its superintendent and foreman," committed the wrongful act which caused McCain's death. This averment, taken in connection with others, must be [133 Ind. 233] deemed sufficient, as it charges the negligent act to be that of the defendant. It is true that it is alleged that the act was performed through agents and employes, but this does not render it any the less the act of the appellant, since, as it is a corporation, it must do whatever it does through agents.

An answer containing several paragraphs was filed by the appellant. The first paragraph is the general denial, and the second and third paragraphs are regarded by us as argumentative denials. They do not confess and avoid, inasmuch as they do not give color of right to the plaintiff's complaint, but assert, in effect, that he never had any cause of action. An answer which does not concede color of right is not a plea in confession and avoidance. The answers we are considering really confess no material facts, save the relationship between the parties, and the happening of the accident. They fully deny, although in an affirmative form, that the injury was attributable to the negligence of the defendant. It is, indeed, difficult to conceive how an answer can be considered as in confession and avoidance, where, as here, the plaintiff's negligence is averred and the defendant's negligence expressly denied, unless new affirmative matter is pleaded, such as payment, accord and satisfaction, or the like. There is certainly no new matter of that nature in any of the paragraphs of the answer. It is settled that there is no available error in sustaining a demurrer to special paragraphs of an answer, in a case where the general denial is pleaded, and all the evidence admissible under the affirmative answer is admissible under the general denial. See authorities cited in Elliott's Appellate Procedure, sections 637 (669).

The fourth paragraph alleges that the intestate was injured upon a car furnished to the appellant by the Louisville, New Albany & Chicago Railroad Company, and that his injury was caused by a defective brake, which the railroad company negligently suffered to become insufficient [133 Ind. 234] and dangerous. The prayer is that the plaintiff be compelled to make the railroad company a party to the action. There was no error in sustaining the demurrer to the paragraph. If, as the complaint alleges, the defendant was guilty of a culpably negligent breach of duty owing to its employe, the fact that another person was also negligent would not compel the plaintiff to make that person a party to the action, since it is an elementary rule that the plaintiff may sue one or more of several joint tortfeasors. Nor would the fact, conceding the answer to show such fact, that the negligence of the railroad company concurred with that of the appellant in producing the injury, defeat the action, nor require the presence of the railroad company as a party, inasmuch as a wrong-doer is not exculpated because the negligence of another concurred in producing the injury to the plaintiff. See authorities cited in Elliott on Roads and Streets, p. 451, 452, 631. If the negligence which caused the injury to the appellee's intestate was solely that of the railroad company, then, clearly enough, the appellant would not be liable; but the defense that there was no culpable negligence on the part of the appellant was admissible under the general denial, so that the concession that the answer shows that there was no negligence on the appellant's part would not lead to a reversal.

The contention of counsel that a venire de novo should have been awarded, because the special verdict does not find all of the facts, can not prevail. Even at common law a special verdict was not ill because it did not state all the facts...

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