Domestic Block Coal Co. v. Armey

• Decision Date: 19 June 1912
• Docket Number: No. 7,467.,7,467.
• Citation: Domestic Block Coal Co. v. Armey, 98 N.E. 875 (Ind. App. 1912)
• Parties: DOMESTIC BLOCK COAL CO. v. DE ARMEY.
• Court: Indiana Appellate Court

98 N.E. 875

DOMESTIC BLOCK COAL CO.

v.DE ARMEY.

No. 7,467.

Appellate Court of Indiana, Division No. 2.

June 19, 1912.

On rehearing. Denied.

For former opinion, see 97 N. E. 706.

Lamb, Beasley, Douthitt & Crawford, for appellant. Wymond J. Beckett, G. S. Payne, and W. F. Elliott, for appellee.

PER CURIAM.

Rehearing denied.

LAIRY, J. (dissenting).

The prevailing opinion seems to recognize and apply a principle announced in the case of McElwaine Richards Co. v. Wall, 159 Ind. 557, 57 N. E. 753, to which we cannot give our assent.

The complaint contains the following averment: “And plaintiff says that defendant's said mine boss knew that said roof was insecure and defective and was in a condition to fall at any time, and had said notice and knowledge of said condition of said roof in said room from two to six days before the happening of the accident to this plaintiff, and in ample time to have taken down said slate and stone from said roof. *** And plaintiff says that by reason of the negligence of said mine boss, as aforesaid, said heavy piece of slate and stone fell from the roof of said room No. 7 and injured plaintiff as aforesaid.” It appears from these averments that the mine boss knew that the roof of room No. 7 was defective and dangerous and likely to fall at any time, and that he had possessed this knowledge for from two to six days before the accident. It is true that there is no direct averment that the roof was defective and dangerous in the manner described for any length of time prior to the accident, but it would have been impossible for the mine boss to have known of these defects if they had not existed. The fact that the roof was defective and dangerous for two days before the accident occurred must follow as a necessary inference from the facts averred. No other inference can be drawn. As a general rule a pleading will not be aided by inference. This is a salutary rule, and should not be unduly relaxed; but our courts have held that, in cases where only a single inference can be drawn from the facts pleaded, and where such inference is a necessary or forced one, it will be indulged in aid of the pleading. Erwin v. Central, etc., Co., 148 Ind. 365, 46 N. E. 667, 47 N. E. 663;Brown v. Brown, 133 Ind. 476, 32 N. E. 1128, 33 N. E. 615;Morgantown Mfg. Co. v. Hicks, 46 Ind. App. 623, 92 N. E. 199;Indianapolis, etc., Co. v. Ray, 167 Ind. 236, 78 N. E. 978.

The prevailing opinion is fully sustained on this point by the case ...