Cleveland, C., C. & St. L. Ry. Co. v. De Bolt

• Decision Date: 29 May 1894
• Citation: 10 Ind.App. 174,37 N.E. 737
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. DE BOLT.

10 Ind.App. 174

37 N.E. 737

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

v.DE BOLT.

Appellate Court of Indiana.

May 29, 1894.

Appeal from circuit court, Shelby county; W. A. Johnson, Judge.

Action by Thomas J. De Bolt against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Elliott & Elliott and Hord & Adams, for appellant. Wray & Campbell and E. W. McDaniel, for appellee.

LOTZ, C. J.

The appellee brought this action to recover the value of a horse killed by the locomotive and cars of the appellant. The cause was put at issue and tried by a jury, which returned a general verdict for appellee, on which judgment was rendered. The assignments of error are that the trial court erred in overruling the separate demurrer to the first and second parapraphs of complaint, and in overruling the motion for a new trial.

It appears from the allegations of each paragraph that the horse entered upon the track at a point where the same was not securely fenced. The failure to securely fence the track is characterized as having been negligently, willfully, and maliciously omitted. The appellant contends that the theory of the complaint, if it has any definite theory at all, is that of either negligence or willfulness, and not that of the violation of the statutory duty to securely fence the track; that the complaint is not sufficient, either upon the theory of negligence or willfulness. It is settled that a pleading must proceed upon some definite theory, and, unless it is good upon the theory adopted by the pleader, it is not good at all. If the pleader, in drawing a pleading, is unwilling to commit himself to any definite theory, the court will not construct or adopt a theory for him. Markover v. Krauss, 132 Ind. 294, 305, 31 N. E. 1047. All the allegations of negligence and willfulness in the complaint before us relate to the manner in which the track was fenced, and not to the manner in which the appellant managed and controlled its engine and cars. Neither paragraph is sufficient upon either the theory of negligence or the theory of willfulness. If either one of these theories is the predominating or controlling theory of the complaint, then it is insufficient. In construing a pleading, its nature and theory will be determined from the general scope of its allegations, disregarding such as are isolated and detached. That theory will be adopted which is most apparent and most clearly outlined by the facts stated. The complaint before us must, if possible, be given such construction as to give full force and effect to all of its material allegations, and such as will afford the pleader full relief for the injuries stated in the pleading. Monnett v. Turpie, 133 Ind. 424, 427, 32 N. E. 328;Batman v. Snoddy, 132 Ind. 480, 32 N. E. 327. When a pleading is susceptible of being construed upon various consistent theories, and the predominating theory is dubious or uncertain, the theory adopted by the trial court, and upon which the cause proceeded and was tried, should be followed by this court. The appellant insists that the trial court, in instructing the jury, wholly ignored the questions of negligence and willfulness. If the case was tried upon the theory of a violation of a statutory duty alone, then this court should adhere to the theory adopted by the trial court. Railway Co. v. Hughes, 2 Ind. App. 68, 28 N. E. 158. The pleading before us is very awkwardly drawn, but the allegations of negligence and willfulness may be disregarded and treated as surplusage (Railroad Co. v. Lyons, 55 Ind. 482; Railroad Co. v. Lyon, 72 Ind. 108); and, when this is done, enough remains of each paragraph to show that the horse entered on the track at a point not securely fenced. The statutory duty was violated, and whether this was negligently or willfully done is immaterial. The cause of action arises from this fact, and not from the manner in which it was done. This, we think, is the controlling theory of each paragraph. There was no error in overruling the demurrers.

One of the causes for a new trial is...