Cushman Motor Delivery Co. v. McCabe
| Decision Date | 08 October 1941 |
| Docket Number | 27454. |
| Citation | 36 N.E.2d 769,219 Ind. 156 |
| Parties | CUSHMAN MOTOR DELIVERY CO. et al. v. McCABE. |
| Court | Indiana Supreme Court |
Appeal from Circuit Court, Newton County; George F Sammons, judge.
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White Wright & Boleman and Geo. C. Forrey, III, all of Indianapolis, and Wm. S. Isham, of Fowler, for appellant.
Crumpacker & Friedrich and Jay E. Darlington, all of Hammond, and P. D. Hancock, of Kentland, for appellee.
This action arose out of an accident in which an automobile driven by Zephaeniah G. Dunn struck the rear end of a truck owned by the appellant, Cushman Motor Delivery Company, and in charge of the appellant, Albert Klein, which accident resulted in the death of the said Dunn. The appellee first brought an action for wrongful death in the Superior Court of Marion County against the company alone. During the trial the appellee dismissed the cause and costs were adjudged against him. Thereafter, this action was filed against both appellants in the Lake Superior Court, and was then taken on a change of venue to the Newton Circuit Court where a trial resulted in a judgment against both appellants, from which judgment this appeal is prosecuted.
Each appellant filed a plea in abatement alleging that the venue of the case was improperly placed in Lake County and that the costs of the case filed in Marion County had not been paid. The plea of the appellant Klein also attempted to present the ground that there had been no service on him.
Each plea in abatement refers to certain ineffectual attempts at service. They do not allege, however, that the appellants did not appear nor that they were not served with process other than the summonses referred to in the pleas. The process referred to in the plea was not set out therein. 'The plea cannot be aided by reference to the process or other papers in the case where they are not made a part of the plea.' C. Callahan Co. v. Wall Rice Milling Co., 1909, 44 Ind.App. 372, 374, 89 N.E. 418, 419. On a demurrer to a plea in abatement the court is not required to look beyond the plea. Such a plea must be certain and complete to every intent and in every particular. 'The pleader must not only answer fully what is necessary to be answered, but must anticipate and exclude all such matters as would, if alleged upon the opposite side, defeat his plea.' Knotts v. Clark Construction Co., 1921, 191 Ind. 354, 359, 131 N.E. 921, 922, 132 N.E. 678. Since the plea did not anticipate and exclude all other possible methods of obtaining jurisdiction of the appellants it was not sufficient on that question.
The appellants contend that the action was not properly filed in Lake County since the appellant company was a foreign corporation, admitted to do business in Indiana, with its Indiana office and process agent both being in Marion County, Indiana. The pleas further alleged that at the time this action was filed the appellant Klein was a nonresident of the State of Indiana. The employer company was properly joined as a party defendant in the same action with the employee for the alleged negligence of the employee as such. Indiana Nitroglycerine & Torpedo Co. v. Lippincott Glass Co., 1905, 165 Ind. 361, 75 N.E. 649. Section 2-707, Burns' 1933, § 81, Baldwin's 1934, provides that in the case of nonresidents 'action may be commenced and process served in any county where they may be found.' Since there was no sufficient showing in the plea to the contrary, we must assume, as against the demurrer, that the appellants were served with process in Lake County or voluntarily appeared to the action. The plea did not, therefore, sufficiently show a ground for abatement as to the venue of the action.
In Carrothers et al. v. Carrothers, 1886, 107 Ind. 530, 8 N.E. 563, it was held that a demurrer to a plea in abatement was properly overruled where the plea alleged a second action, vexatiously brought by and between the same parties for the same cause; and that the court would order proceedings stayed in the second action until the costs of the former action were paid. The court there also said that it will be presumed that the second action is vexatiously brought in the absence of any sufficient showing to the contrary. In the instant case, however, the appellants, after the demurrer to their plea in abatement was sustained, filed their verified motion to stay proceedings until the costs of the former action were paid. To this motion the appellee filed a verified answer denying that the second action was vexatiously brought. On the issue of fact thus presented the court overruled the motion. By presenting this factual issue on their motion the appellants waived any possible error of the court in sustaining the demurrer to the plea in abatement. Since the appellee by counter affidavit presented some evidence to support the court's finding and the court in such a case does have some discretion we will not disturb such finding.
Since the only possible effect of overruling appellant's motion to strike out parts of the complaint was to leave surplusage therein, it was not reversible error to overrule such motion. Rooker v. Fidelity Trust Co., 1921, 191 Ind. 141, 131 N.E. 769.
Appellants next contend that the court erred in overruling their demurrer to each paragraph of the amended complaint. Under this proposition appellants argue that 'there are no allegations of ultimate facts from which the court can say, as a matter of law, that either of the appellants was negligent' with respect to the various actions complained of. This is not the correct test of a complaint for negligence where the alleged conduct is characterized as being negligent. The first paragraph of the amended complaint did allege that the appellant Klein 'was careless and negligent' in that he left said truck standing on the easterly half of the concrete portion of the highway so that it obstructed practically the entire northbound lane 'without adequate warning of said obstruction to travelers and drivers of vehicles approaching it from the rear, that is to say without such warning as would enable them in the ordinary course of events and with ordinary care to learn about and avoid striking said obstruction.' Without regard to the allegations of other specific acts which were alleged to be negligent, the above sufficiently charges negligence to withstand a demurrer. The action of the appellant Klein, in so permitting the truck to remain standing on the road without such warning as would enable a person using ordinary care to learn of the obstruction and avoid striking it, was characterized as being negligent and was conduct from which a jury might reasonably infer that appellant was negligent. This was sufficient to withstand appellant's demurrer. Pittsburgh, etc., Ry. Co. v. Arnott, Adm'x, 1920, 189 Ind. 350, 126 N.E. 13.
Appellants also contend that it affirmatively appears in each paragraph of the amended complaint that appellee's decedent was guilty of contributory negligence and that for this reason it was error to overrule the demurrer. A demurrer to a complaint should be sustained on this ground only when the facts alleged are such that reasonable minds must infer therefrom that the injured person was guilty of contributory negligence. Hill v. Chicago, etc., R. Co., 1919, 188 Ind. 130, 122 N.E. 321. The facts alleged in neither paragraph of amended complaint require such an inference.
Under their assigned error on the action of the court in overruling the motion for a new trial the appellants complain of two instructions given by the court at the request of the appellee.
Instruction No. 3 tendered by the appellee told the jury that at the time this accident occurred there was a statute in force in Indiana 'forbidding any person to park or leave a motor vehicle upon any portion of any highway outside of any city or town between the hours of one-half hour after sunset to one-half hour before sunrise unless such motor vehicle so parked or left shall display upon the front two lighted white lights, properly dimmed, and one lighted red light on the rear of such motor vehicle.' The language of this instruction was apparently taken from § 29 of ch. 213, Acts of 1925, p. 590, § 6 of ch. 190 of the Acts of 1929, p. 620. Appellants insist that said amendment was invalid because the title of the Act of 1929 named only specific sections of the Act of 1925, which were to be amended, and said § 29 was not so named. Even though such attempted amendment was ineffectual, we are of the opinion that the giving of this instruction did not constitute reversible error. The gist of this instruction was to tell the jury that the truck here in question, while temporarily stopped on the highway after dark, was required by statute to have on the rear thereof a lighted red light. This was required by § 28, Acts of 1925, p. 589, which was in force when this accident occurred. This statute provided that: 'Every motor vehicle operated or driven upon any public highway in this state, shall, during the period from one-half hour after sunset to one-half hour before sunrise carry two lighted lamps on the front, which shall display a white light, visible from the front, and one lighted lamp on the rear * * * which shall display a red light, visible from the rear.' This provision was carried forward into the 1925 Act from ch. 161, Acts of 1919, p. 700. The 1919 Act was interpreted by this court in Koplovitz v. Jensen, 1926, 197 Ind. 475, 151 N.E. 390, 391, as applying to a motor vehicle temporarily stopped on the highway. The appellant in that case contended that the words 'Every motor vehicle * * * operated or driven' must be construed as covering only vehicles which were in motion. After a...
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