Citizens' St. R. Co. of Indianapolis v. Willoeby

• Decision Date: 24 February 1893
• Citation: 134 Ind. 563,33 N.E. 627
• Parties: CITIZENS' ST. R. CO. OF INDIANAPOLIS v. WILLOEBY.
• Court: Indiana Supreme Court

134 Ind. 563

33 N.E. 627

CITIZENS' ST. R. CO. OF INDIANAPOLIS

v.WILLOEBY.¹

Supreme Court of Indiana.

Feb. 24, 1893.

Appeal from circuit court, Johnson county; L. J. Hackney, Judge.

Action by Joseph Willoeby, by next friend, against the Citizens' Street-Railroad Company of Indianapolis, for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

Buckingham & White and H. C. Allen, for appellant. P. W. Bartholomew and C. E. Averill, for appellee.

COFFEY, C. J.

This was an action by the appellee against the appellant, commenced in the Marion superior court, to recover damages on account of an alleged personal injury. The venue of the cause was changed to the Johnson circuit court, where a trial resulted in a verdict and judgment in favor of the appellee. The complaint in the cause alleges substantially that in the year 1888 the appellant was a corporation organized under the laws of this state, and was engaged in the business of operating a street railroad in the city of Indianapolis; that in the month of June of that year the appellee, who was then a boy about 13 years of age, desiring to ride as a passenger on one of the appellant's street cars, having the money to pay his fare, and being ready and willing to do so, stepped upon the platform of such car, intending to enter and pay the fare, when the conductor, without asking for such fare, and without any cause or any warning to the appellee, willfully, forcibly, and angrily took hold of him, and willfully, with great force, negligently, wantonly, and recklessly jerked and threw him from and off said platform upon the street while the car was running at great speed; that the street at the point where appellee was thus thrown from the car was paved with boulders, and that by the fall he was rendered unconscious, was hurt internally, and his face, shoulders, arms, hips, and legs terribly bruised, torn, and mangled; that as a direct and natural result of such injuries his left hip became sore and permanently injured, and the hip joint destroyed, and his left hip and leg became deformed, twisted, and useless, totally disabling him from active labor, and causing his hip joint to become incurably diseased; that by reason of said injuries he suffered great pain and agony of mind and body, and will be totally disabled the remainder of his life. The errors assigned are: First, that the complaint does not state a cause of action; second, that the court erred in overruling the motion of the appellant for a new trial.

The sufficiency of the complaint is tested for the first time in this court. It is unnecessary, therefore, to inquire whether it would be sufficient to withstand a demurrer. It is a well-settled rule that where the sufficiency of a complaint is tested for the first time by the assignment of error in this court it will be held sufficient if it contain facts enough to bar another action for the same cause. Colchen v. Ninde, 120 Ind. 88, 22 N. E. Rep. 94; Harris v. State, 123 Ind. 272, 24 N. E. Rep. 241; Burkhart v. Gladish, 123 Ind. 337, 24 N. E. Rep. 118; Peters v. Banta, 120 Ind. 416, 22 N. E. Rep. 95; Old v. Mohler, 122 Ind. 594, 23 N. E. Rep. 967. It is somewhat difficult to determine the theory upon which this complaint proceeds; but whether it is to be regarded as proceeding upon the theory that the appellant was guilty of a violation of its contract duty as a common carrier of passengers, or upon the theory that one of its servants, acting within the scope of his employment, was guilty of inflicting a willful and wanton injury upon the appellee, it is certainly sufficient to bar another action against the appellant on account of the wrongs set forth therein. We are constrained, therefore, to hold that this complaint, attacked for the first time in this court by an assignment of error, is sufficient to withstand such attack. It is true that every complaint must proceed upon some single definite theory, but such theory is to be gathered from the general scope of the pleading, and not from detached allegations. Railway Co. v. Schmidt, 106 Ind. 73, 5 N. E. Rep. 684; Rollet v. Heiman, 120 Ind. 511, 22 N. E. Rep. 666. When the complaint now before us is thus construed, we think it appears that it does not proceed upon the theory that the appellant has been guilty of a breach of its contract as a common carrier of passengers to safely carry the appellee to the end of his journey, but that it proceeds upon the theory that the servant of the appellant, while acting within the scope of his employment, inflicted upon the appellee a willful injury. That the master would be liable for such an injury is too well settled in this state to be open to controversy. Palmer v. Railroad Co., 112 Ind. 250, 14 N. E. Rep. 70; Pennsylvania Co. v. Sinclair, 62 Ind. 301;Railway Co. v. Bryan, 107 Ind. 51, 7 N. E. Rep. 807; Stockyard Co. v. Mann, 107 Ind. 89, 7 N. E. Rep. 893; Railway Co. v. Ader, 110 Ind. 376, 11 N. E. Rep. 437; Railroad Co. v. Eaton, 53 Ind. 307;Carter v. Railway Co., 98 Ind. 552;Railway Co. v. McBrown, 46 Ind. 229. It was upon this theory that the case was tried in the court below, and in this we think there was no error.

Under the assignment of error calling in question the correctness of the ruling of the circuit court in overruling the appellant's motion for a new trial it is insisted-First, that the court erred in giving instructions on its own motion; second, that the court erred in refusing to give certain instructions asked by the appellant; third, that the court erred in admitting improper evidence on behalf of the appellee on the trial of the cause. The court, in its second instruction, held that “the gist of this action is the alleged wrongful ejection of the plaintiff from the defendant's car. He cannot recover upon proof of mere negligence, however gross such negligence. The cause of action alleged by the plaintiff is not for negligence, and does not require proof of plaintiff's freedom from negligence. The plaintiff's only right of recovery under his complaint is for willful injury, if proven. A willful injury is that which flows from an injurious act, purposely committed, with the intent to commit injury. In determining whether the injury, if any, was committed willfully you may consider, with other circumstances of the case, the manner of the conductor, the force, if any, used by him, and the effects of his acts, together with the presumption that every person intends the natural and probable consequences of his wrongful acts; and an unlawful intent may be inferred from the conduct which shows a reckless disregard of consequences,...