Barrett v. Cleveland, Cincinnati, Chicago And St. Louis Railway Company

• Court: Indiana Appellate Court
• Writing for the Court: ADAMS, J.
• Citation: Barrett v. Cleveland, Cincinnati, Chicago And St. Louis Railway Company, 96 N.E. 490, 48 Ind.App. 668 (Ind. App. 1911)
• Decision Date: 22 November 1911
• Docket Number: 7,325
• Parties: BARRETT v. CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY

96 N.E. 490

48 Ind.App. 668

BARRETT v. CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY

No. 7,325

Court of Appeals of Indiana

November 22, 1911

From Rush Circuit Court; Will M. Sparks, Judge.

Action by Cyrus C. Barrett against the Cleveland, Cincinnati Chicago and St. Louis Railway Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Newby & Newby and Megee & Kiplinger, for appellant.

Frank L. Littleton, C. E. Cowgill and L. J. Hackney, for appellee.

OPINION

ADAMS, J.

Appellant who was plaintiff below, brought this action against 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 alleging that appellee is a corporation operating a line of railway from the city of Anderson, Indiana, south through Rush county, and over and through the lands of appellant in said county, it is averred "that before said railway was constructed there was a good and sufficient tile drain across the lands of plaintiff, running from a westerly to an easterly direction to the lands of Frederick Leisure, and thence to Blue river; that said drain was ample and sufficient properly to drain said lands of plaintiff, but that said defendant constructed its said railway across said lands from a northeasterly to a southwesterly direction over and across said tile drain; that on or about April 1, 1906, said railway company negligently, wilfully and purposely broke the tile in said drain at a point under its main track, on its right of way on said lands, thereby causing said drain to cave in and obstruct the free flow of water therethrough; that, as a further obstruction to the flow of water through said drain, said railway company, by its officers, agents and employes, filled said drain with dirt and gravel, so as wholly to obstruct the flow of water through said drain, and thereby caused the water that should flow through said drain to back and overflow the lands of plaintiff, so as to render said lands unfit for farming or for any purpose whatever; that before said drain was so broken and filled by 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 defendant, aforesaid, said lands were rendered wet and unfit for farming or for any other purpose; that by reason of the action of defendant, its agents and employes, said plaintiff's lands and all growing crops thereon were overflowed each and every year since the obstruction was made, and a large tract of land, to wit, twenty-five acres, was rendered useless and of no value, to the injury and damage of the plaintiff in the sum of $ 1,000."

Appellee demurred to this complaint for want of facts sufficient to constitute a cause of action, which demurrer was overruled by the court. The answer was 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 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.

Appellant refused to plead further and elected 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 it to the complaint. Judgment was rendered against appellant for costs.

Several errors are assigned, but the error argued and relied on 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 it to the complaint.

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 (1903), 160 Ind. 176, 66 N.E. 694; Grace v. Cox (1896), 16 Ind.App. 150, 44 N.E. 813.

The sufficiency of the complaint, therefore, is the only question to be determined upon this appeal. Before considering 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, wilfully and purposely broken by 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 wilfully and negligently. Wilfulness and negligence are diametrically opposite to each other. One imports inattention, inadvertence and indifference, while the other imports intention, purpose and design. There can be no negligence with intent, and no wilfulness without intent. It does not strengthen a pleading to allege both negligence and wilfulness. The action must be predicated upon one theory or the other. Miller v. Miller (1897), 17 Ind.App. 605, 609, 47 N.E. 338; Louisville, etc., R. Co. v. Bryan (1886), 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.' [Van Etten v. Hurst (1884), 6 Hill 311, 41 Am. Dec. 748.] Facts must be stated directly and positively, and not indirectly nor in the alternative." Langsdale v. Woollen (1889), 120 Ind. 78, 80, 21 N.E. 541.

In the case of Miller v. Miller, supra, at page 608, the court said: "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 wilful tort, or 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 the case of Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 14 N.E. 228, it is said: "There is a clear distinction between cases which count upon negligence as a ground of action and those founded upon acts of aggressive wrong or wilfulness, and a pleading should not be tolerated which proceeds upon the idea that it may be good either for a wilful 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, it is said: "It is only necessary to charge, in a complaint which seeks redress for a wilful injury, that the injurious act was purposely and intentionally committed, with the intent wilfully and purposely to inflict the injury complained of."

In the case of Louisville, etc., R. Co. v. Schmidt (1886), 106 Ind. 73, 74, 5 N.E. 684, it is said: "A pleading is to be judged from its general scope, and not from detached phrases or epithets cast into it." To the same general effect are the following cases: Phoenix Ins. Co. v. Rogers (1894), 11 Ind.App. 72, 75, 38 N.E. 865; Hasselman v. Japanese Develop. Co. (1891), 2 Ind.App. 180, 188, 27 N.E. 318; Carter v. Lacy (1891), 3 Ind.App. 54, 57, 29 N.E. 168; Cleveland, etc., R. Co. v. Stuart (1900), 24 Ind.App. 374; F. C. Austin Mfg. Co. v. Clendenning (1899), 21 Ind.App. 459, 52 N.E. 708; Terre Haute, etc., R. Co. v. McCorkle (1895), 140 Ind. 613, 622, 40 N.E. 62; Chicago, etc., R. Co. v. Bills (1885), 104 Ind. 13, 16, 3 N.E. 611; Bremmerman v. Jennings (1885), 101 Ind. 253, 257; Western Union Tel. Co. v. Reed (1884), 96 Ind. 195, 198; Speeder Cycle Co. v. Teeters (1897), 18 Ind.App. 474, 48 N.E. 595; Richardson v. League (1899), 21 Ind.App. 429, 52 N.E. 618; Mescall v. Tully (1883), 91 Ind. 96, 99.

"To constitute a wilful injury, the act which produced it must have been intentional, or must have been done under such circumstances as...