Cobe v. Malloy

Citation88 N.E. 620,44 Ind.App. 8
Decision Date02 June 1909
Docket NumberNo. 6,419.,6,419.
PartiesCOBE v. MALLOY.
CourtCourt of Appeals of Indiana


Appeal from Superior Court, Lake County; Harry B. Tuthill, Judge.

Action by Catherine Malloy against Ira M. Cobe, receiver of the Calumet Electric Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.Leonard A. Busby and A. F. Knotts, for appellant. Schuyler F. Lynn, for appellee.


Appellant, as receiver of the Calumet Electric Street Railway Company, appointed by the Circuit Court of the United States and by that court authorized to carry on the business of said company, while so engaged in operating and running the cars of said company at the city of Chicago, ran one of said cars against appellee, injuring her, whereupon she brought this action in the court below against appellant to recover damages on account of said injuries alleged to have been caused by the negligence of appellant. The complaint was in one paragraph, to which the record shows a demurrer was filed. The demurrer is not in the record, and for that reason we will not consider the assignment based upon the action of the court in overruling it. To the complaint the appellant filed an answer in two paragraphs-one in denial and the other setting up affirmatively facts in bar of the action. A demurrer was sustained to the latter paragraph of answer, to which ruling the appellant reserved an exception, and has here assigned error of the court in failing to carry the demurrer to that paragraph of answer back to and sustaining the same to appellee's complaint.

It may be here noted that appellee has not favored us with any brief in support of the judgment in this cause; and for this failure alone we would be authorized to reverse the judgment. Union Traction Co. v. Forst, 162 Ind. 567, 70 N. E. 979;Moore v. Zumbrum, 162 Ind. 696, 70 N. E. 800;Miller v. Julian, 163 Ind. 582, 72 N. E. 588;Rose v. Arford (Ind.) 88 N. E. 302. But, as such action is within the sound discretion of the court (Hanrahan v. Knickerbocker, 35 Ind. App. 138, 72 N. E. 1137;McAfee v. Bending, 36 Ind. App. 628, 76 N. E. 412;Cleveland, etc., R. Co. v. Wuest, 40 Ind. App. 694, 82 N. E. 986), we have concluded to consider the question presented as best we can without aid from appellee. In a case like this, where the injury is said to have occurred in another state, and relief is sought in this state, and no statute of that state is pleaded making the defendant liable for such injury, the action will be regarded a proceeding upon the theory of a common-law liability controlled and governed by the procedure of this state. Burns, Adm'r, v. Grand Rapids, etc., R. Co., 113 Ind. 169, 15 N. E. 230;Cincinnati, etc., R. Co. v. McMullen, Adm'r, 117 Ind. 439, 20 N. E. 287, 10 Am. St. Rep. 67;Smith v. Wabash R. R. Co., 141 Ind. 92, 40 N. E. 270;Chicago, etc., R. Co. v. Vanderburg, 164 Ind. 470, 73 N. E. 990;Wabash, etc., R. Co. v. Hassett, 170 Ind. 370, 83 N. E. 705. It will no doubt be conceded that a demurrer for want of facts addressed to an answer will search the record and test the sufficiency of the complaint for want of facts to state a cause of action (Gould v. Steyer, 75 Ind. 50; McAfee v. Bending, supra), and, when properly assigned in an appellate court, will be considered and applied to the complaint with the same force as a demurrer to the complaint alone (Haymond v. Saucer, 84 Ind. 3;Alkire v. Alkire, 134 Ind. 350, 32 N. E. 571). Enough of the record has been stated to indicate that the sufficiency of the complaint for want of facts is the first question to be considered.

Turning to the complaint, it will be seen that the only facts appearing in the complaint to show actionable negligence on the part of appellant are stated in the language following: “That, while plaintiff was attempting to go upon another street car of the said defendant and to take passage for hire thereon, said plaintiff attempted to cross the street in front of one of defendant's cars while said car was standing still at the time said plaintiff attempted to cross said street in front thereof; that said car was started by defendant without ringing the bell or sounding the gong, and without any other notice or warning, and while plaintiff was in front of and near to said car, and then and there and thereby run into and struck plaintiff with great force and violence, and thereby threw plaintiff with great violence upon the street,” etc., describing her injuries. In Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N. E. 874, it is said: “In all common-law actions, the basis of which is the negligence of the defendant, negligence or its equivalent must be directly averred, or such facts must be stated as that a presumption of negligence arises. It must appear from the complaint either by direct averment or from the statement of such facts as to a certainty raise the presumption that the injury was the result of the defendant's negligence, or that it was purposely committed”-citing cases. It is a rule of pleading in this state that negligence may be pleaded in general terms. Such was the rule at common law, and our Code has not changed it. Another rule for pleading negligence permits the pleader to directly allege facts showing a legal duty and its breach, followed by such facts as will certainly inform the court that the act done, or omitted to be done, was committed or omitted in the absence of due...

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2 cases
  • Brier v. Mankey
    • United States
    • Indiana Appellate Court
    • January 25, 1911 reverse a judgment for the failure of appellee to file a brief is a matter within the discretion of the court (Cobe, Receiver, v. Malloy, 44 Ind. App. 8, 88 N. E. 620;Wysong v. Sells, 44 Ind. App. 238, 88 N. E. 954), and as the record is but 14 pages in length, we have concluded to consi......
  • Brier v. Mankey
    • United States
    • Indiana Appellate Court
    • January 25, 1911
    ... ... to reverse a judgment for the failure of appellee to file a ... brief is a matter within the discretion of the court ... (Cobe v. Malloy [1909], 44 Ind.App. 8, 88 ... N.E. 620; and Wysong v. Sells [1909], 44 ... Ind.App. 238, 88 N.E. 954)--and as the record is but fourteen ... ...

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