Domestic Block Coal Co. v. Armey
Decision Date | 03 June 1913 |
Docket Number | No. 22,328.,22,328. |
Citation | 179 Ind. 592,102 N.E. 99 |
Parties | DOMESTIC BLOCK COAL CO. v. DE ARMEY. |
Court | Indiana Supreme Court |
On rehearing. Petition for rehearing overruled.
For former opinion, see 100 N. E. 675.
Counsel for appellant have filed a brief of great length, vigorously assailing the declared rule that, in determining the sufficiency of a complaint on demurrer, the court will consider facts fairly and reasonably inferable from those expressly stated.
It is contended that the rule of construction under our Code is the same as at common law, and, tested by the common-law rule, the complaint here is insufficient.
[1] It cannot be conceded that our Code rule is no more liberal than that of the common law. The contrary has been declared by this court. Malott v. Sample (1905) 164 Ind. 645, 648, 74 N. E. 245, and cases cited; Indiana, etc., Torpedo Co. v. Lippincott Glass Co., 165 Ind. 361, 363, 75 N. E. 649, and cases cited; Town of New Caselt v. Grubbs, 171 Ind. 482, 86 N. E. 757. The rule of construction under the Code system is stated as follows in 4 Ency. Pl. & Pr. p. 755: (Italics ours throughout.)
[2] Were it conceded that the common-law rule governs, it warranted the drawing of fair and reasonable inferences from facts expressly pleaded. “The language of the pleading is to have a reasonable intendment and construction; and, where an expression is capable of different meanings, that shall be taken which will support the declaration, and not the other, which would defeat it.” 1 Chitty, 237; 1 Saunders, Pl. & Ev. 919; Stephen on Pl. p. 379; 4 Ency. Pl. & Pr. 759; 31 Cyc. 78. Appellant's counsel assert that as against a demurrer for want of facts a paragraph of complaint cannot be aided by intendments; that a defendant's neglect of duty, etc., must be directly, specifically, and positively averred, and cannot be shown by “recital, conclusion, or inference.” It would appear to be counsel's position that the correct rule would prohibit entirely resort to inference or implication; but in no event could such resort be justified unless the suggested inference is one necessarily arising from facts directly averred. Counsel say: “If, when a complaint is challenged by demurrer, *** the judge may consider facts *** which do not appear except by way of inference, the judge who rules on the demurrer and the judge who presides at the trial *** may draw reasonable inferences directly opposite, and confusion and *** chaos will be the inevitable result.” A great number of Indiana cases are cited, the most important of which will be noted later. In dealing with treaties, constitutions, statutes, charters, contracts, wills, deeds, and other written instruments there is and ever has been since the beginning of civil government, resort to inferenceor implication. The limitations of the human mind and the imperfections of human language are such that resort to implication is a fundamental necessity in the ordinary affairs of life.
In his treatise on the federal Constitution, Story, in speaking of a supposed attempt by the framers of the instrument to positively enumerate the powers desired to be granted to Congress, says: Story on the Constitution, § 1239. The same author in section 433 asserts that the faculties of man are not competent to frame a system of government which would “leave nothing to implication,” and that a detailed list of all the necessary powers of a government, and the means of executing the same, could not be comprehended by the human mind. The same learned jurist in section 1244 says: To wholly prohibit resort to inference in determining the sufficiency of a pleading would at once result in the destruction of the system, and notwithstanding some expressions to be found in certain opinions of judges, where words were used in a sense obviously not intended, it may be safely asserted that no court ever deliberately held, or intended to hold, that inferred facts may never be considered in determining on demurrer the sufficiency of a pleading.
In cases cited by appellant may be noted the following expressions: “It is an elementary principle that in pleadings facts must be positively averred, and not set out by way of recital, inference, or conclusion.” Wabash R. Co. v. Hassett, 170 Ind. 370, 83 N. E. 705: “It has been repeatedly affirmed by this court that facts in a pleading must be positively averred, and not set out by way of recital, inference, or conclusion.” Wabash R. Co. v. Beedle, 173 Ind. 437, 90 N. E. 760: “But in determining the sufficiency of pleadings only inferences necessarily arising from facts alleged will be indulged.” Rowan v. Butler, 171 Ind. 28, 85 N. E. 714. Appellee cites the opinion in Antioch Coal Co. v. Rockey, 169 Ind. 247, 82 N. E. 76, which contains the following expression: “Appellant by his demurrer to the complaint conceded as true all the facts therein which were well pleaded, together with all the reasonable inferences which might be deduced from such facts.” The opinion was written by Jordan, J., who delivered the opinion in Wabash R. Co. v. Beedle, supra. In Town of New Castle v. Grubbs, 171 Ind. 482, 86 N. E. 757, it was said: In support of the ruling the court cites section 385, Burns 1908, which provides that in construing a pleading “its allegations shall be liberally construed, with a view to substantial justice between the parties.” 4 Ency. Pl. & Pr. 745, also cited in support of the ruling, declares: “Every reasonable intendment will be made in favor of the pleading, and this even though implications are resorted to, since what is necessarily understood or implied in a pleading forms a part of it as much as if it was expressed.”
A consideration of the foregoing opinions compels the conclusion that it was never intended by this court to hold that in determining the sufficiency of a pleading on demurrer resort may not be had to implication. To hold that resort may not be had to inference involves an absurdity. Chamberlayne, Mod. Law, Ev. § 1801. See, also, same author, § 1733a. A consideration of the opinions cited, in volumes 169, 170, 171, and 173 of our reports, compels the conclusion that this court never intended to declare any such fallacious rule.
Is the rule declared in the original opinion that resort may be had to inference, if “fair and reasonable,” from the facts stated, too broad in its scope, or should it be restricted to such inferences as are necessarily compelled? It has already been shown in this and the original opinion that both at the common law and under the codes the rule conformed to the doctrine declared here. Is the rule in Indiana more restrictive? Perhaps the particular distinction between “fair and reasonable” and “necessary” inference has not been presented to this court. Expressions similar to those quoted from cases cited by appellant's counsel may be found in other cases which they cite, yet in Douthit v. Mohr (1888) 116 Ind. 482, 18 N. E. 449, where the only error assigned was the action of the trial court in overruling a demurrer to the complaint, it was said: This ruling was cited with approval in Malott v. Sample (1905) 164 Ind. 645, 648, 74 N. E. 245;Evansville, etc., R. Co. v. Darting, 6 Ind. App. 375, 33 N. E. 636, and Scott v. La Fayette Gas Co. (1908) 42 Ind. App. 614, 619, 86 N. E. 495. In Barkley v. Mahon (1883) 95 Ind. 101, 103, it was said: In Wagoner v. Wilson (1886) 108 Ind. 210, 8 N. E. 925, it was alleged in the complaint that plaintiff advanced and loaned $1,500 to defendants,...
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