Deming Hotel Co. v. Prox, No. 20290

Docket NºNo. 20290
Citation236 N.E.2d 613, 142 Ind.App. 603, 14 Ind.Dec. 214
Case DateMay 08, 1968
CourtCourt of Appeals of Indiana

Page 613

236 N.E.2d 613
142 Ind.App. 603
DEMING HOTEL COMPANY, Appellant,
v.
Adelaide C. PROX, Appellee.
No. 20290.
Appellate Court of Indiana, Division No. 1.
May 8, 1968.
Rehearing Denied June 10, 1968.

[142 Ind.App. 606]

Page 616

Dix, Dix, Patrick, Ratcliffe & Adamson, Thomas M. Patrick, Terre Haute, for appellant.

Mann, Mann, Chaney, Johnson & Hicks, Hansford C. Mann, Terre Haute, for appellee.

COOPER, Judge.

This is an appeal from the Montgomery Circuit Court wherein the Appellee, Adelaide C. Prox, brought an action against the Appellant for personal injuries sustained by her when a mirror fell on her while she was a guest in the dining room of the Deming Hotel Company.

Both the original and the later first amended complaint named as parties defendant the Deming Hotel Company, W. H. Sanford Corporation, and Pittsburgh Plate Glass Company. The W. H. Sanford Corporation was a general contractor which renovated the Appellant's dining room and the Pittsburgh Plate Glass Company was the subcontractor which installed the mirror which fell on the plaintiff-appellee.

[142 Ind.App. 607] The W. H. Sanford Corporation and the Pittsburgh Plate Glass Company each filed a separate demurrer to the amended complaint, each alleging therein that the complaint did not state facts sufficient to constitute a cause of action against it. The W. H. Sanford Corporation supported its demurrer with a memorandum stating that the complaint did not show a contractual relationship between it and the plaintiff, that there was no privity of contract, and that the complaint did not disclose that the negligence of this defendant was the proximate cause of injury to the plaintiff. The Pittsburgh Plate Glass Company supported its demurrer with a memorandum stating that the complaint failed to show that this defendant failed or omitted to perform any duty, or that this defendant breached any duty owed by it to the plaintiff.

The trial court sustained the demurrers of the defendants W. H. Sanford Corporation and the Pittsburgh Plate Glass Corporation, and the Plaintiff was given leave to amend her complaint. Thereafter, the plaintiff-appellee filed her second amended complaint naming only the appellant herein as the defendant.

The second amended complaint alleged that the Appellant operated a hotel in which there was a restaurant known as the Gourmet Room, to which the defendant invited the general public to enter as customers, by solicitation and advertisement. The complaint further alleged:

'2. That sometime prior to November 8, 1959, the exact date being unknown to plaintiff, the Deming Hotel Company installed or caused to be installed large plate glass mirrors, three and one-half feet wide and seven feet from top to bottom by one-quarter inch in thickness on the pillar located in the center of the Gourmet Room.

'3. On November 8, 1959, Adelaide Prox was a customer in the Gourmet Room and while seated at one of the tables just north of the entrance and west of said pillar with the mirrors on it, was struck by a mirror which fell from the west side of the pillar and injured her as hereinafter more specifically set forth.

[142 Ind.App. 608] '4. The defendant, Deming Hotel Company, has at all times mentioned herein been in complete and exclusive control of the dining room in which plaintiff was injured--including both the building and fixtures. Said defendant was negligent in failing to provide a safe place for its dining room patrons, including plaintiff herein.

'5. As a proximate result of the defendant's negligence as heretofore set forth, plaintiff was hurt and injured. She was struck with such force and violence that she was rendered unconscious. Adelaide Prox sustained concussion, contusions of the head, a severe strain or sprain of the neck, a cut on the right foot and strain of the lower back resulting in degeneration of the 4th, 5th and

Page 617

6th cervical interspaces. She has suffered continuous pain and will continue to suffer in the future. Her injuries are permanent and impairing.

'6. That by reason of such injuries plaintiff has been damaged in the amount of twenty five thousand ($25,000.00) Dollars.

'Wherefore, plaintiff demands judgment for Twenty-Five Thousand ($25,000.00) Dollars, the costs of this action and all other proper relief.'

The Appellant filed a motion to make more specific pursuant to Supreme Court Rule 1--3A. Said motion requested the Court to require the plaintiff to specify the particular acts or omissions which constituted negligence on the part of the defendant. The motion also sought to have the plaintiff specify whether the defendant had any notice or knowledge, actual or constructive, that its dining room was not a 'safe place for its dining patrons.'

The trial court overruled the motion in its entirety, and gave leave to answer. Thereafter the defendant demurred to the plaintiff's second amended complaint on the grounds that said complaint failed to state facts sufficient to constitute a cause of action. This demurrer was overruled by the trial court and thereafter the defendant filed its answer.

After the issues were closed, trial was had to a jury which returned a verdict for the plaintiff in the amount of $7,700.00. Judgment was entered on the verdict and subsequently the Appellant filed its Motion for a New Trial. The trial court [142 Ind.App. 609] overruled the motion for new trial, and this ruling of the trial court is the assigned error on appeal.

The Motion for a New Trial contained many alleged causes for a new trial. Several of these were not supported by argument or citations of authority in the Appellant's brief, and are therefore deemed to be waived pursuant to Rule 2--17(i) of the Rules of the Supreme Court of Indiana. Those causes so waived are numbered 1C, 1D, 4, 5, 7U, 7Y, 7Z, 8B, 8C, 8F, 8G, 8H, and 8J.

Under causes 1A and 1B of the Motion for New Trial, the Appellant contends that the court erred in overruling its motion to make more specific and its demurrer to plaintiff's second amended complaint. The Appellant states that a general allegation of negligence will not withstand a demurrer, 'if as in this case, such general allegation is preceded by a motion to make the same more specific.' This assertion of the Appellant is not entirely correct, under the issues as presented in this particular case. The general rule in Indiana is that a general allegation of negligence in a complaint will not later withstand a demurrer, if the intervening motion to make more specific was meritorious. However, this general rule cannot apply in a case of this nature where the facts concerning the cause of injury are within the peculiar knowledge of the defendant and not the plaintiff.

In Vol. 38, Am.Jur., Negligence, Sec. 262, at pp. 954, and 955, we find the following statement:

'Where, from the nature of the case, the plaintiff in an action for damages for negligence could not be expected to know the exact cause of the precise negligent act which became the cause of an injury, and the facts were peculiarly within the knowledge of the defendant, the plaintiff is not required to allege the particular cause; it is sufficient to allege the facts in a general way, which will give the defendant notice of the character of proof that would be offered to support the plaintiff's case.

'The rule that the particular facts constituting the negligence complained of must be stated, particularly when called for, does not apply where the plaintiff cannot be expected [142 Ind.App. 610] to have any information as to the causes of the accident, while the defendant must be assumed to

Page 618

be fully informed on the subject.' (our emphasis)

This Court has spoken on the degree of certainty required in pleadings in cases where the doctrine of res ipsa loquitur is applicable, as follows:

'In this connection let us suggest that there are cases wherein the particular facts and causal circumstances are obscure and where necessarily much is left to inference. In such cases, the rule of evidence, res ipsa loquitur, ought to, and in fact does, have its concomitant rule of pleading. While a complaint should state the facts with a reasonable degree of certainty, what constitutes a reasonable degree of certainty must depend upon the circumstances and the nature of the case. And, where the rule res ipsa loquitur is applicable, reason does not require the plaintiff to state the facts with that degree of particularity which would be required in ordinary cases. Indeed, in such a case an attempt to specify the remote grounds of negligence would be mere guesswork on the part of the plaintiff.' Baltimore and Ohio Southwestern R.R. Co. v. Hill, Admr. (1925) 84 Ind.App. 354, 359, 148 N.E. 489, 491. See also Kaemmerling v. Athletic Mining, etc., Co. (1924) 8 Cir., 2 F.2d 754; Pennsylvania R.R. Co. v. Hough (1928) 88 Ind.App. 601, 607, 161 N.E. 705; Wass, Admx. v. Suter et al. (1949) 119 Ind.App. 655, 661, 84 N.E.2d 734.

Judge Arterburn, speaking for our Supreme Court on this subject has held:

'Since the doctrine of res ipsa loquitur is to some extent based on the theory that the facts connected with the cause of the injury are unknown to the plaintiff and within the peculiar knowledge of the defendant it would also follow from the general rules of pleading that in such cases the plaintiff is not compelled to allege the specific facts coming within the special knowledge of the defendant. Lowe's Works Ind. Prac. Vol. 1, Sec. 12.17, p. 370.' New York, Chicago & St. Louis R.R. Co. v. Henderson (1957) 237 Ind. 456, 146 N.E.2d 531, 539.

In the case now before us, the plaintiff's complaint, in our judgment, alleged sufficient facts, and the evidence adduced [142 Ind.App. 611] at the trial showed sufficient facts to make the rule of res ipsa loquitur applicable. In light of the foregoing authority, we find no error in the trial court's ruling on the motion to make more specific and on the demurrer.

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25 practice notes
  • Frankfort v. Owens, No. 2--375A53
    • United States
    • Indiana Court of Appeals of Indiana
    • December 22, 1976
    ...or defense. Scott v. Sisco (1959), 129 Ind.App. 156 N.E.2d 895; Deming Hotel Co. v. Prox (1968), 142 Ind.App.[171 Ind.App. 586] 603, 236 N.E.2d 613. Appellant contends that because there is some evidence from which a jury might properly infer negligence on the part of defendant-appellee, an......
  • Lloyd v. Weimert, No. 1268A203
    • United States
    • Indiana Court of Appeals of Indiana
    • May 6, 1970
    ...part of which would be objects left on the stairway. [146 Ind.App. 672] In the case of Deming Hotel Co. v. Prox (1968) Ind.App., 236 N.E.2d 613, at page 618, the position of this court in reviewing the appellants' contention is stated: 'When the sufficiency of the evidence is questioned on ......
  • Bituminous Fire & Marine Ins. Co. v. Culligan Fyrprotexion, Inc., No. 1-1180A333
    • United States
    • Indiana Court of Appeals of Indiana
    • July 28, 1982
    ...Ind.App. 342, 293 N.E.2d 58; Henley v. Nu-Gas Co., Inc., (1971) 149 Ind.App. 307, 271 N.E.2d 741; Deming Hotel Company v. Prox, (1968) 142 Ind.App. 603, 236 N.E.2d 613; Snow, supra; Baker v. Coca Cola Bottling Works, (1961) 132 Ind.App. 390, 177 N.E.2d 759; The Pittsburgh, Cincinnati, Chica......
  • Senco Products, Inc. v. Riley, No. 1-281A55
    • United States
    • Indiana Court of Appeals of Indiana
    • April 22, 1982
    ...and one was not preserved since it came after the answer and no motion to strike was made. See Deming Hotel Co. v. Prox, (1968) 142 Ind.App. 603, 236 N.E.2d 613. The other objections might be considered objections on the grounds of insufficient factual 5 This fact came into evidence, withou......
  • Request a trial to view additional results
25 cases
  • Frankfort v. Owens, No. 2--375A53
    • United States
    • Indiana Court of Appeals of Indiana
    • December 22, 1976
    ...or defense. Scott v. Sisco (1959), 129 Ind.App. 156 N.E.2d 895; Deming Hotel Co. v. Prox (1968), 142 Ind.App.[171 Ind.App. 586] 603, 236 N.E.2d 613. Appellant contends that because there is some evidence from which a jury might properly infer negligence on the part of defendant-appellee, an......
  • Lloyd v. Weimert, No. 1268A203
    • United States
    • Indiana Court of Appeals of Indiana
    • May 6, 1970
    ...part of which would be objects left on the stairway. [146 Ind.App. 672] In the case of Deming Hotel Co. v. Prox (1968) Ind.App., 236 N.E.2d 613, at page 618, the position of this court in reviewing the appellants' contention is stated: 'When the sufficiency of the evidence is questioned on ......
  • Bituminous Fire & Marine Ins. Co. v. Culligan Fyrprotexion, Inc., No. 1-1180A333
    • United States
    • Indiana Court of Appeals of Indiana
    • July 28, 1982
    ...Ind.App. 342, 293 N.E.2d 58; Henley v. Nu-Gas Co., Inc., (1971) 149 Ind.App. 307, 271 N.E.2d 741; Deming Hotel Company v. Prox, (1968) 142 Ind.App. 603, 236 N.E.2d 613; Snow, supra; Baker v. Coca Cola Bottling Works, (1961) 132 Ind.App. 390, 177 N.E.2d 759; The Pittsburgh, Cincinnati, Chica......
  • Senco Products, Inc. v. Riley, No. 1-281A55
    • United States
    • Indiana Court of Appeals of Indiana
    • April 22, 1982
    ...and one was not preserved since it came after the answer and no motion to strike was made. See Deming Hotel Co. v. Prox, (1968) 142 Ind.App. 603, 236 N.E.2d 613. The other objections might be considered objections on the grounds of insufficient factual 5 This fact came into evidence, withou......
  • Request a trial to view additional results

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