Green v. Eden

• Decision Date: 16 February 1900
• Docket Number: 3,002
• Citation: 56 N.E. 240,24 Ind.App. 583
• Parties: GREEN ET AL. v. EDEN
• Court: Indiana Appellate Court

56 N.E. 240

24 Ind.App. 583

GREEN ET AL. v. EDEN

No. 3,002

Court of Appeals of Indiana

February 16, 1900

Rehearing denied May 9, 1900.

From the Marion Superior Court.

Affirmed.

J. W Holtzman and J. M. Leathers, for appellants.

W. V Rooker, for appellee.

OPINION

WILEY, C. J.

Appellee was plaintiff, and brought and prosecuted to a successful determination against appellants an action to recover for injuries alleged to have resulted from the negligence of appellants. The city of Indianapolis was also made a defendant below, but successfully defended. The complaint was in three paragraphs, to which a demurrer was addressed and overruled.

The first error assigned and discussed is that the "complaint of appellee does not state facts sufficient to constitute a cause of action." In the first paragraph of the complaint it is averred that appellants were partners, and were, on April 23, 1896, operating a hospital ambulance drawn by a single horse; that in so doing appellants were wrongfully, negligently, and carelessly unmindful of their duties to pedestrians on the streets of said city, in that they operated and ran said ambulance at a high and dangerous rate of speed in, along, and upon the streets of said city, which were then crowded with, and in use by, other persons; that on said day, and while appellants were so operating said ambulance, appellee was lawfully and in a careful manner traveling on Ohio street, one of the streets of said city; that while so traveling, appellants, by reason of their said wrongful, negligent, and careless manner of operating said ambulance, ran the same and the horse attached thereto upon, against, and over appellee, whereby he was injured, etc. It is further charged that such injuries, loss of time, etc., were wholly occasioned by the fault and negligence on the part of appellants, and without fault or negligence on the part of appellee. The second paragraph contains all the allegations of the first, and the additional averments that appellants operated the ambulance without a brake, or other contrivance for regulating, checking, and controlling its speed, and without sufficient horse power to check and stop its speed, considering the fact that it was run at a high and dangerous rate of speed; that it was of great weight, to wit, a ton, and was propelled by a single horse. The third paragraph is like the second, with the additional allegations that appellants negligently, carelessly, and wrongfully kept in their service in the operation of said ambulance, reckless, unskillful and incompetent servants; that the said servants were incompetent, etc., in this: "That they took said ambulance upon the streets of said city when it was in a dangerous and defective condition for want of a brake or other controlling appliance, and ran the same at a high and dangerous rate of speed, to wit, twenty miles per hour, and that while so operating and running it they used one horse, which they knew, or ought to have known, was not sufficient to control the same; that while driving said horse, they did not regard the rules of the road, but "indiscriminately took one side of the street, and then the other, changing the course, and permitting the course of the ambulance to be changed without regard for the fact that there were at the time in the street, and in the immediate course of the ambulance, many persons, including appellee;" that appellee was wholly ignorant of the manner in which said ambulance was being operated, of the character of its equipments and servants, and that appellee was ignorant of all of said facts, and that appellants had full knowledge thereof. The demurrer to the complaint was as follows: "The said defendants * * * demur to plaintiff's complaint, and for cause of demurrer say that said complaint does not state facts sufficient to constitute a cause of action." This is a joint demurrer, and is addressed to the complaint as a whole.

When a demurrer is addressed to a pleading generally, and the pleading consists of two or more paragraphs, if one of the paragraphs is good, the demurrer should be overruled. Brake v. Payne, 137 Ind. 479, 37 N.E. 140; Dorsett v. City of Greencastle, 141 Ind. 38, 40 N.E. 131; Baker v. Groves, 1 Ind.App. 522, 27 N.E. 640; City of Tell City v. Bielefeld, 20 Ind.App. 1, 49 N.E. 1090. Therefore, if either of the paragraphs of the complaint was good, it was not error to overrule the demurrer.

Counsel for appellants have called our attention to that line of cases holding that a municipal corporation can not be held liable for damages resulting from the negligent acts of a driver of a city ambulance while driving through its streets. If this appeal was by the city, and we were considering a demurrer by it, the rule would have some application here; but the city is not a party to the appeal, and the rule that might exempt it from liability does not necessarily control as to appellants.

It is also urged that the complaint does not show that there were any benefits derived from the operation of the ambulance by appellants, and that it does appear that it was a hospital or public ambulance being operated for the public good and public health, and for these reasons, the complaint is insufficient. We can not believe this is sound reasoning. It was unnecessary to aver that appellants derived any benefit from the operation of the ambulance, and it does not necessarily follow from the averments of the complaint that it was being operated as a city or public ambulance. The averment is that they were operating a "hospital ambulance." We know as a matter of common knowledge and general information that there are private hospitals in the city of Indianapolis, and, though we must construe the complaint most strongly against the pleader, yet we cannot assume, from the language used, that the ambulance was a public vehicle, and being operated for the public good.

It is also urged that the complaint is bad for duplicity, in that the acts complained of were "wrongfully, carelessly, and negligently" done. By a course of reasoning somewhat ingenious, appellant's learned counsel have attempted to show that the words "wrongfully" and "negligently", in the connection and sense in which they are used, are "absolutely inconsistent." It is urged that the word "wrongful," as used in the complaint, and in connection with the language which follows, viz., "unmindful of their duties to pedestrians on the streets of said city," means that the act complained of was wantonly done, and that "wantonly" means intentionally done, which means that it was wilfully done. If this construction can be given to the word "wrongfully" in the connection in which it was used, then appellants' position is well grounded, for a single paragraph of complaint can not count on a careless and negligent act and wanton and wilful act. They constitute different and distinct causes of action, are inconsistent with each other, and hence can not be joined in the same paragraph. As was said in Louisville, etc., R. Co. v. Bryan, 107 Ind. 51, 7 N.E. 807: "To say that an injury resulted from the negligent and wilful conduct of another is to affirm that the same act is the result of two exactly opposite mental conditions. It is to affirm in one breath that an act was done through inattention, thoughtlessly, heedlessly, and at the same time purposely and by design." But we can not agree with counsel that the word "wrongfully", as used in the complaint, means wantonly or wilfully.

Another objection to the complaint is that the wrongful, negligent, and careless acts charged are not stated with sufficient certainty. The complaint must be held sufficient if the facts charged with sufficient certainty sustain the general allegations of negligence and carelessness. Hawley v. Williams, 90 Ind. 160; Cincinnati, etc., R. Co. v. Chester, 57 Ind. 297. We think the complaint comes fairly within the rule stated, and that there was no error in overruling the demurrer to it.

Appellants answered in four paragraphs, and the second, third, and fourth paragraphs are so nearly alike that a statement of the facts in one will suffice for all. It is averred that appellants, on December 29, 1895, entered into a contract with the city of Indianapolis whereby they bound themselves to keep a certain hospital ambulance for the use of the city and to furnish therefor the horse and driver; that said contract was in writing, and conditioned that all calls for said ambulance must come through the city dispensary, and that the same must be promptly answered, both day and night; that, when said ambulance should be called to the dispensary, it should be under the control and direction of the dispensary surgeon, and should render him such assistance as he should demand; that at the time of the injuries complained of said contract was in full force, and appellants were keeping a hospital ambulance for the use of said city only, and furnishing a horse and driver therefor whenever required by the city; that, in pursuance to said contract, appellants did, on April 23, 1898, send said ambulance to the city dispensary in compliance with a request therefor; that upon its arrival the driver thereof placed himself under the full control and management of said city, and then and there became wholly subject to the orders and commands of the city, as provided by contract; that when the injuries to appellee occurred, as described in the complaint, the ambulance wagon and the driver thereof were under the full, complete and exclusive control and direction of the surgeon in the employ of the city, then and there in charge of the ambulance. It is further averred that the driver of the ambulance at the time of appellee's injuries was the servant of the city of...