City of Evansville v. Worthington

• Decision Date: 18 September 1884
• Docket Number: 11,562
• Citation: 97 Ind. 282
• Parties: City of Evansville v. Worthington
• Court: Indiana Supreme Court

97 Ind. 282

City of Evansville v. Worthington

No. 11,562

Supreme Court of Indiana

September 18, 1884

From the Vanderburgh Circuit Court.

The judgment is affirmed with costs.

J. B Rucker, for appellant.

C. L Wedding, for appellee.

OPINION

Howk J.

The first error complained of by the appellant, the defendant below, is the overruling of its demurrer to appellee's complaint.

In his complaint, the appellee alleged that there was a public street or highway in the city of Evansville, known as First street, leading from the upper to the lower part of such city, which street the appellant was bound to keep in repair; that the appellant negligently suffered and permitted such street and the sidewalk, on the eastern side thereof, between Pine and Ingle streets, to be and remain out of repair, and suffered and permitted "deep holes, high points and corners to be and remain in, along and upon such sidewalk and street," on and for a long time prior to May 15th, 1883, with notice thereof, and especially near the crossing of Pine street; that the appellee, on the 13th day of May, 1883, while lawfully travelling along and upon such street and sidewalk, between Pine and Ingle streets and near the crossing of Pine street, "was hurt, his leg injured and crippled, and he made sore, lame, sick and disabled from carrying on his work as a carpenter, and rendered unable permanently to do any manual labor, lost five months' time, suffered great pain of body and mind, incurred doctors' and medical bills, and was otherwise injured and damaged, all without any fault or negligence on his part, but by reason of said defendant's negligence as aforesaid." Wherefore, etc.

In discussing the question of the alleged insufficiency of the appellee's complaint, the appellant's counsel says: "Admitting the allegations of the amended complaint as true, which we do by demurrer, it does not state such facts as would justify a recovery thereon, for the reason that it does not state how the injury occurred,--whether the deep holes, high points and corners caused said injury or not. Indeed, for aught that appears in the complaint, he may have been injured by an obstruction upon the sidewalk, and not from any defect therein. He does not charge, that he was injured by stepping into said holes, or striking against said points or corners, or by falling upon said sidewalk, and the failure to do so, we insist, makes the complaint bad, and the demurrer should have been sustained."

This is the entire argument of the appellant's counsel, in regard to the alleged insufficiency of appellee's complaint. It seems to us, that the complaint can hardly be regarded as a model of good pleading, and that it is open to some of the objections pointed out, in argument, by the appellant's counsel. It is well settled, however, by the decisions of this court, that such objections to a complaint or other pleading, can not be reached or made available by a demurrer thereto, for the want of sufficient facts. Where, in an action for the recovery of damages resulting from the alleged negligence of the defendant, the complaint contains a general averment of such negligence, objections that such averment is defective or uncertain can not be made or presented by a demurrer for the want of sufficient facts, but only by a motion to make more specific. Pennsylvania Co. v. Sedwick, 59 Ind. 336; Jameson v. Board, etc., 64 Ind. 524; Ohio, etc.,...