Barrett v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 22 November 1911
• Docket Number: No. 7,325.,7,325.
• Citation: 48 Ind.App. 668,96 N.E. 490
• Court: Indiana Appellate Court
• Parties: BARRETT v. CLEVELAND, C., C. & ST. L. RY. CO.

48 Ind.App. 668

96 N.E. 490

BARRETT

v.CLEVELAND, C., C. & ST. L. RY. CO.

No. 7,325.

Appellate Court of Indiana, Division No. 2.

Nov. 22, 1911.

Appeal from Circuit Court, Rush County; Will M. Sparks, Judge.

Action by Cyrus C. Barrett against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.Newby & Newby and Megee & Kiplinger, for appellants. Frank L. Littleton, C. E. Cowgill, and L. J. Hackney, for appellee.

ADAMS, J.

The appellant, who was the plaintiff below, brought this action against the appellee to recover damages for the breaking down of a tile drain on the right of way, and under the tracks of the appellee. After charging that appellee is a corporation, and as such operates a line of railway from the city of Anderson, Ind., south through the county of Rush, and over and through the lands of appellant in Rush county, it is averred: “That before said railway was constructed there was a good and sufficient tile ditch and drain across the lands of the plaintiff in said Rush county from a westerly to an easterly direction to the lands of one Frederick Leisure, and thence to Blue River; that said ditch and drain was ample and sufficient to properly drain said lands of the plaintiff, but that said defendant constructed its said railway across said lands from a northeasterly to a southwesterly direction over and across said tile ditch; that on or about the 1st day of April, 1906, said railway company negligently, willfully, and purposely broke the tile in said ditch and drain at a point under its main track on its right of way on said lands, thereby causing said ditch to cave in and obstruct the free flow of water there through, and as a further obstruction to the flow of water through said drain the said railway company, by its officers, agents, and employés, filled and caused said ditch and drain to be filled with dirt and gravel, so as to wholly obstruct the flow of water through said ditch, and thereby caused the water which should flow through said drain to back and overflow the lands of the plaintiff, so as to render the said lands unfit for farming or for any purpose whatever; that, before said ditch was so broken and filled up by the defendant, said lands were fertile, dry, and very productive, and in fit and proper condition to raise all kinds of farm products, but by the action of the defendant aforesaid said lands were rendered wet and unfit for farming or any other purpose; that by reason of the action of the defendant, its agents, and employés said plaintiff's lands were caused to overflow, all growing crops thereon each and every year since the obstruction was made, and a large tract of land, to wit, 25 acres of said land, was rendered useless, and of no value, to the injury and damage of the plaintiff in the sum of $1,000. Wherefore,” etc. The appellee demurred to this complaint for want of facts sufficient to constitute a cause of action, which demurrer was overruled by the court. Answer in two paragraphs. The first was in denial, and the second set out facts relating to the time, terms, and manner of acquiring the right of way across the appellant's farm, and the right secured to appellee by the deed of conveyance. A demurrer was addressed to the second paragraph of answer, and was not only overruled, but was carried back by the court, and sustained to the complaint. The appellant refusing to plead further, and electing to stand by his exception to the action of the court in overruling his demurrer to the second paragraph of answer, and carrying said demurrer back, and sustaining the same to the complaint, judgment was rendered against appellant for costs.

Several errors are assigned, but the error argued and relied upon for reversal in this court relates to the overruling of appellant's demurrer to the second paragraph of answer, and the action of the court in carrying said demurrer back and sustaining the same to the complaint.

[1] If there was no error in sustaining the demurrer to the complaint, then the action of the court in overruling the demurrer to the second paragraph of answer would not be error, even if said paragraph were bad, under the well-recognized rule that a bad answer is good enough for a bad complaint. Alexander v. Spaulding, 160 Ind. 176, 66 N. E. 694;Grace v. Cox, 16 Ind. App. 150, 44 N. E. 813.

[2][3] The sufficiency of the complaint, therefore, is the only question to be determined upon this appeal. Preliminary to the consideration of the main question, however, the nature of the action set forth in the complaint must be determined. It will be noted that the act complained of is that the tile in the ditch was negligently, willfully, and purposely broken by the appellee at a point under its main track and on its right of way. It is clear that an act could not be done both willfully and negligently. Willfulness and negligence are diametrically opposite to each other. One imports inattention, inadvertance, and indifference, while the other imports intention, purpose, and design. There can be no negligence with intent, and no willfulness without intent. It does not strengthen a pleading to allege both negligence and willfulness. The action must be predicated upon one theory or the other. Miller v. Miller, 17 Ind. App. 608, 609, 47 N. E. 338;Louisville, etc., R. Co. v. Bryan, 107 Ind. 51, 54, 7 N. E. 807. “The pleader is not at liberty to leave his pleading open to different constructions, and then take his choice between them. Facts must be stated directly and positively, and not indirectly nor in the alternative.” Langsdale v. Woollen, Adm'r, 120 Ind. 78, 80, 21 N. E. 541. In Miller v. Miller, supra, 17 Ind. App., at page 608, 47 N. E. at page 339, the court say: “Every complaint must proceed upon some single definite theory. This theory can be gathered only from the general scope and tenor of the pleading. Whether a complaint charges a willful tort, or a negligent act, must be determined from the language used by the pleader. The pleading cannot proceed upon more than one theory, and, if it does, the court may construe it as proceeding upon the theory most apparent and most clearly authorized by the facts stated, and require the case to be tried upon that theory.” In Gregory, Adm'r, v. C., C., C. & I. Ry. Co., 112 Ind. 387, 14 N. E. 229, it is said: “There is a clear distinction between the cases which count upon negligence as a ground of action and those which are founded upon acts of aggressive wrong or willfulness, and a pleading should not be tolerated which proceeds upon the idea that it may be good either for a willful injury or as a complaint for an injury occasioned by negligence. It should proceed upon one theory or the other, and is to be judged from its general tenor and scope.” In the same case, at page 387, of 112 Ind., at page 229 of 14 N. E. it is said: “It is only necessary to charge in a complaint which seeks redress for a willful injury that the injurious act was...