Davis v. Louisville & N. R. Co.

• Decision Date: 10 April 1961
• Docket Number: No. 1,No. 19266,19266,1
• Citation: 132 Ind.App. 419,173 N.E.2d 749
• Parties: John T. DAVIS, Appellant, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Chicago and Eastern Illinois Railroad Company, Appellees
• Court: Indiana Appellate Court

Page 749

173 N.E.2d 749

132 Ind.App. 419

John T. DAVIS, Appellant, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Chicago and Eastern Illinois Railroad Company, Appellees.

No. 19266.

Appellate Court of Indiana, Division No. 1.

April 10, 1961.

John D. Clouse, Russell S. Armstrong, Evansville, for appellant.

Darby & Fitzgerald, William T. Fitzgerald, J. William Kleindorfer, Evansville, for appellee, Louisville & N. R. Co.

Fine, Hatfield, Sparrenberger & Fine, Isadore J. Fine, Joe S. Hatfield, Charles H. Sparrenberger, Eugene P. Fine, Evansville, Edward E. Meyer, Evansville, of counsel, for appellee, Chicago & Eastern Illinois R. Co.

MYERS, Judge.

This is an appeal from a judgment entered in the Superior Court of Vanderburgh County, Indiana, wherein demurrers were sustained to appellant's amended complaint to recover damages for personal injuries sustained by appellant, pursuant to the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

In substance, appellant alleges in his complaint that appellees were engaged in the business of maintaining and operating railroads in interstate commerce; that their trains went into and departed from the Union Depot at Evansville, Indiana; that the two appellees herein had an understanding and agreement between themselves for the servicing and readying of trains which ran between Evansville and Chicago, Illinois; that this servicing included the icing of passenger coaches and Pullman cars for air-conditioning purposes and the preparation of ice water; that on July 14, 1953, appellant, 37 years of age, was employed by appellee, Louisville and Nashville Railroad Company, and had been so employed continuously for a considerable time prior thereto; that appellant's duties included the icing of the passenger coaches and Pullman cars of both appellees pursuant to their agreement with each other; that approximately one month prior to July 14, 1953, appellant while so employed was suddenly taken ill with a heart attack and compelled to leave his work temporarily; that this illness and 'physical condition resulting therefrom' was known to both appellees, because it was 'observed' by appellant's superior at work, who was an agent of appellees acting within the scope of his authority.

The complaint proceeds to allege that thereafter, but prior to July 14, 1953, appellant returned to his said employment with the 'acquiescence and consent' of appellees; that they carelessly and negligently failed to determine or ascertain appellant's 'true physical condition' and to have appellant examined by a reputable physician in order to determine his fitness to return to his work; that appellees could have so determined his 'true physicial condition,' which condition was such as to make it reasonably probable that his said work would have been injurious to his health and would produce the ailments complained of, that is, a heart attack and asthma; that, with their knowledge of appellant's 'said condition,' appellant was ordered to perform his customary work, and that he did so perform it.

Appellant further alleges that the 'nature of plaintiff's said illness,' prior to July 14, 1953, and the 'symptoms resulting therefrom' were such as to indicate the propriety of a physical examination before permitting him to return to work; that he was required to lift blocks of ice weighing approximately fifty pounds each, and to either throw them to some one on top of a car or to catch them; that in so handling the ice his body became saturated with moisture and that he was required to remain in a saturated condition for long periods of time with no opportunity afforded to become dry.

Appellant next alleges that on or about the 14th day of July, 1953, while he was so employed by appellees, and while acting in the scope of his employment, and while he was engaged in icing the coaches and Pullman cars of a train, he was, on account of his said work, 'caused to become sick, sore, and disabled, and he did then and there finally suffer an attack of asthma and a heart attack, from which said conditions thus produced, and the consequential and residual effects thereof, plaintiff has ever since been forced and compelled to suffer, and plaintiff will forever hereafter suffer therefrom.'

The complaint goes further to allege that the appellees, and each of them, were careless and negligent in the following respects:

'A. In carelessly and negligently allowing and permitting and ordering, commanding, and directing plaintiff to perform and to engage in said type of employment, as aforesaid, without first ascertaining his physical fitness therefor.

'B. In carelessly and negligently failing and neglecting to afford or to provide plaintiff with a means of avoiding or counteracting the effects of said moisture and saturation upon his body and person.

'C. In carelessly and negligently failing and neglecting to afford or to provide plaintiff with a means of protecting his body and person from said moisture and saturation attending his said work.

'D. In carelessly and negligently failing and neglecting to furnish and provide adequate assistance, means, or modern approved equipment to aid him and lighten his tasks in said handling and movement of said blocks of ice for the purposes, as aforesaid.

'E. In carelessly and negligently using blocks of ice of such dimensions, sizes, and weights, as aforesaid, in the said air-conditioning of said passenger coaches and Pullman cars of said trains.'- It was then alleged that as a result of the alleged negligence, appellant was and would be subject to medical and hospital expenses, that he was totally and permanently incapacitated, and damages were asked in the amount of $100,000.

Each of appellees filed its separate motion to make more specific and to strike certain designated parts of the complaint, on the ground that the averments set forth were conclusions of fact, and asked that appellant be required to plead sufficient facts to constitute negligence as a matter of law. Attached to each motion was a memorandum in support thereof. These motions were overruled by the trial court.

Thereafter each of the appellees filed a demurrer to the complaint, based upon the ground that the complaint did not state facts sufficient to constitute a cause of action. Attached to each demurrer was a memorandum submitted in support thereof, the substance of which was to the effect that the amended complaint did not contain allegations of any act or omission on the part of appellees which constituted a violation of any duty owing to appellant. The trial court sustained each of these demurrers. A motion was filed by appellant requesting the court to reconsider its rulings. After reconsideration, the court reaffirmed its rulings and sustained each of the demurrers.

Appellant next filed a second amended complaint. In response to this, appellees filed individual motions to strike it from the files as a sham and frivolous pleading. These motions were sustained. By agreement of the parties, the amended complaint and the separate demurrers thereto were deemed refiled and, appellant refusing to plead over, judgment was entered for appellees. The second amended complaint was made a part of the record by a special bill of exceptions.

The assignment of errors, in brief, states that the court erred in sustaining the demurrers to the complaint and in sustaining the motions to strike out the second amended complaint.

Appellant states that a demurrer admits all facts well pleaded, and all reasonable inferences to be gathered therefrom, so that, in considering this complaint, which is challenged by demurrer, all facts will be deemed stated that could be implied by the allegations made, by fair and reasonable intendment, and that such implied facts carry the same potency as those directly stated, citing authorities therefor.

Appellees take issue thereto, and state that the rule is that when a plaintiff opposes and procures the court to overrule a motion to make his pleading more specific, it is deemed an admission that no facts were relied upon except expressly averred, and that this court cannot imply facts from allegations in the amended complaint, but must look solely to the allegations of fact contained therein.

In Swanson v. Slagal, Administratrix, 1937, 212 Ind. 394, 8 N.E.2d 993, the Supreme Court states that if a motion to make more specific is overruled, no facts not alleged in the complaint will be implied by reason of the allegations of conclusions which have been unsuccessfully challenged by the motion. Terre Haute, etc., Traction Co. v. Scott, 1926, 197 Ind. 587, 150 N.E. 777, 43 A.L.R. 1029; Pennsylvania R. R. Co. v. Hemmer, Admx., 1934, 206 Ind. 311, 186 N.E. 285, 189 N.E. 137.

In the case of Adams v. Holcomb, 1948, 226 Ind. 67, 71, 77 N.E.2d 891, 893, the court was faced with a complaint to which a motion to make more specific was addressed, asking that the plaintiffs be required to state facts necessary to sustain certain conclusions. The motion had been overruled by the trial court. Thereafter a demurrer was filed, one of the grounds being that the complaint did not state facts sufficient to constitute a cause of action. The court said as follows:

'In considering the allegations of this complaint we are forced to disregard all conclusions of fact contained therein complained of in appellant's motion to make the complaint more specific, which motion should have been sustained. The appellees' act in opposing and procuring the court to overrule this motion must be deemed an admission that no facts were relied upon except those expressly averred. Enterprise, etc., Pub. Co. v. Craig (1924), 195 Ind. 302, 144 N.E. 542 ; Neal v. Baker (1926), 198 Ind. 393, 153 N.E. 768.'

We may dispose of the specific charges of negligence alleged by appellant, therefore, because he had alleged only conclusions of fact unsupported by any specific facts.

As this action was...