Chicago & Erie R. Co. v. Monesmith

• Decision Date: 05 December 1941
• Docket Number: 16713.
• Citation: 37 N.E.2d 724,110 Ind.App. 281
• Court: Indiana Appellate Court
• Parties: CHICAGO & ERIE R. CO. v. MONESMITH.

37 N.E.2d 724

110 Ind.App. 281

CHICAGO & ERIE R. CO. v. MONESMITH.

No. 16713.

Appellate Court of Indiana, in Banc.

December 5, 1941

Hiram G. Miller and Holman & Bernetha, all of Rochester Follansbee, Shorey & Schupp, of Chicago, Ill., and Myers & Molique, of Logansport, for appellant.

Brown & Brown, of Rochester, and Hillis & Hillis, of Logansport, for appellees.

FLANAGAN Judge.

Appellees brought this action against appellant to recover damages for property injured and destroyed by fire communicated by appellant's locomotive engine.

The verdict of the jury was for appellees in the sum of $2,750. Appellant's motion for a new trial was overruled and this action of the trial court is the sole error assigned upon appeal.

The grounds of the motion for a new trial relied upon here are (1) the verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) the court erred in giving instructions numbered 2 and 3 tendered by appellee; (4) the court erred in rulings on admission and rejection of certain evidence; and (5) the assessment of the amount of recovery is erroneous, being too large.

Appellant contends that the theory of the complaint is the total destruction of specific property separate and apart from the eighty acre farm of which it was part, that appellee went to trial on the theory of permanent injury to the eighty acre farm as a whole by reason of the damage to its various parts, and that this was a fatal variance from the theory of the complaint.

In discussing what is meant by "'theory' of a complaint," this court said in the case of Chicago Terre Haute & Southeastern Railway Company v. Collins, 1924, 82 Ind.App. 41, 56, 142 N.E. 634, 143 N.E. 712, 713: "An attentive study of a large number of cases had led to the conviction that, wherever it has been said that a complaint must proceed upon a definite 'theory' which is to be determined from the general scope and tenor of the complaint, nothing more or less is meant than that the complaint must reveal the character of the action-- the nature of the action. * * * More definitely stated: A complaint must be so drafted as that from its general scope and tenor the court may determine whether it states a cause of action founded on negligence or fraud; whether it is an action for replevin or ejectment; whether it is an action to foreclose a mortgage or to quiet title; or whether it is an action of some other kind. In yet other words: A complaint must be so drafted that the court may see to what class of actions the cause of action therein stated belongs, and may know what branch of the law is applicable."

The theory of the complaint in question is recovery under Section 55-3504, Burns' Indiana Statutes Annotated 1933, Baldwin's Indiana Statutes Annotated 1934, Section 14550, for damage to property injured and destroyed by fire communicated by appellant's locomotive engine.

We do not have here presented a question as to variance from the theory of the complaint but rather a question of variance between the averments of the complaint and the proof.

Had no objection been made to the proof when offered we would consider the complaint amended to conform to the evidence under Section 2-3231, Burns' Indiana Statutes Annotated 1933, Baldwin's Indiana Statutes Annotated 1934, Section 505.

However appellant did make proper objection to the introduction of evidence as to the value of the farm as a whole before and after the fire, saved the question, and has duly presented it here under its ground for a new trial that the court erred in the admission of evidence. Appellant also contends here as the reason why the verdict of the jury is not sustained by sufficient evidence and is contrary to law, that the evidence as to damage, being at variance with the averments of complaint, was incompetent, and being admitted over its objection, should now be disregarded, and when so disregarded there is no evidence of damage sufficient to sustain the verdict of the jury and its verdict is contrary to law.

However we cannot agree with appellant's view as to the effect of the allegations of the complaint. The complaint alleges that appellee is the owner of the eighty acre farm in question, that approximately twenty acres of the said real estate was muck of a high degree of fertility, that 80 rods of fence was located thereon, that part of said real estate was in growing pasture, that on it was growing about fifty birch and maple trees, that "the real estate above described was injured by fire" communicated to said real estate by appellant's locomotive engine. It then alleges total destruction of the various items of the property above described without attempting to evaluate the damage to each item; that the muck land is now lake and marsh, and that another portion of the farm, to-wit, nine acres, is useless and inaccessible, and "that thereby this plaintiff has been damaged," etc. We think the complaint alleges permanent injury to the farm as a whole by reason of the damage to its various parts.

Appellant's contention is also confronted by Section 2-1063, Burns' Indiana Statutes Annotated 1933, Baldwin's Indiana Statutes Annotated 1934, Section 168, which reads as follows: "No variance between the allegations in...