Illinois Pipe Line Co. v. Coffman
Decision Date | 19 April 1933 |
Docket Number | No. 14514.,14514. |
Citation | 185 N.E. 323 |
Parties | ILLINOIS PIPE LINE CO. v. COFFMAN. |
Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Rush Circuit Court; John W. Craig, Judge.
Action by Wesley H. Coffman against the Illinois Pipe Line Company. Judgment for plaintiff, and defendant appeals.
Affirmed.Simmons & Simmons, of Bluffton, and Titsworth & Titsworth, of Rushville, for appellant.
Anderson, Mayfield & Rynerson, of Indianapolis, for appellee.
Appellee was a crop tenant upon the farm of Rufus P. Havens and Loretta Havens, located in Rush county. February 11, 1929, the Havens entered into a written contract with appellant authorizing it to enter upon their farm for the purpose of laying and maintaining a pipe line on and through the same. Pursuant to this contract, appellant did enter upon the farm for that purpose. In accomplishing this work, appellee claimed that certain crops growing upon the farm and certain fields were injured to his damage.
Appellee filed a complaint in the Rush circuit court for damages, which, omitting the title, prayer for damages, and signatures of attorneys, reads as follows:
“Plaintiff complains of the above-named defendant, and for cause of action says that on or about the first day of February, 1929, and during the months of March and April thereafter, he was lawfully in possession as a tenant of the following described real estate in Center Township, Rush County, State of Indiana, to-wit: The Southwest quarter of section 6, township 15 North and range 10 East.
“That he was at said time farming the same, and was the owner and had growing thereon a large quantity of wheat, grass and meadow, and was preparing to put out a large crop of corn and oats on said land; that the defendant was on said dates a corporation duly organized and engaged in the construction of a pipe line through the State of Indiana and through said Center Township, Rush County, and that at the times mentioned, and at sundry times thereafter, during the months of February, March and April, 1929, the defendant wrongfully entered upon the said land in the possession of plaintiff, and which land was being worked and farmed by plaintiff, as above alleged and proceeded to locate and construct a pipe line over and upon said premises, and destroyed and converted to its own use the crops of grass, hay and wheat upon said premises so occupied by the plaintiff, and, by hauling large loads of pipes and other material, cut up and destroyed driveways across and over said land, cut up and damaged and injured said lands for agricultural purposes, to the damage of this plaintiff's leasehold interest therein in the sum of six hundred dollars ($600.00) without any leave or license from this plaintiff so to do.”
To this complaint appellant filed a demurrer for insufficiency of facts to constitute a cause of action. The memoranda attached to this demurrer are as follows: After having obtained an adverse ruling upon its demurrer, appellant filed a motion to require appellee to make his complaint more specific; this motion was overruled. Appellant then filed an answer in two paragraphs; the first was a general denial, the second alleged facts seeking to avoid appellee's cause of action. Because of the condition of the record, it is not necessary to set out this paragraph of answer or the substance thereof. Appellee filed a demurrer to the second paragraph of answer for insufficiency of facts to state a cause of defense to his complaint. This demurrer was sustained. The cause was submitted to a jury for trial. A verdict was returned in favor of appellee for the sum of $300. Judgment was entered in his favor on this verdict. Appellant filed a motion for a new trial, which was overruled. Appellant appeals to this court, assigning as error: (1) The court erred in overruling its demurrer to the complaint; (2) the court erred in overruling its motion to make the complaint more specific; (3) the court erred in sustaining the demurrer to its second paragraph of answer; (4) the court erred in overruling its motion for a new trial.
[1] Appellant has failed to discuss the third assignment of error in its brief. In its motion for a new trial, appellant alleged twenty-nine causes therefor. The only causes for a new trial discussed in its brief are Nos. 1, 2, 3, 4, 23, and 27. Appellant has waived any right to a reversal of this cause predicated upon its third assignment of error or upon any causes for a new trial except these above set out. Stauffer v. Hulwick (1911) 176 Ind. 410, 96 N. E. 154, Ann. Cas. 1914A, 951;Cody v. Board of Commissioners Elkhart County (Ind. Sup. 1932) 183 N. E. 404.
[2][3] Since the passage of Acts 1911, c. 157, p. 415, § 2, cl. 6, section 362, Burns' 1926, any objections to the sufficiency of facts in a complaint to state a cause of action not stated in the memorandum of a demurrer thereto are waived. Guenther v. Jackson (1922) 79 Ind. App. 127, 137 N. E. 582;Davis Construction Co. v. Board (1921) 192 Ind. 144, 132 N. E. 629, 21 A. L. R. 557. The complaint was sufficient to withstand the objections lodged against it in the memoranda attached to appellant's demurrer. 10 R. C. L. p. 135, § 119; 20 C. J. p. 798, § 245; Des Moines, etc., Laundry v. Des Moines (1924) 197 Iowa, 1082, 198 N. W. 486, 34 A. L. R. 1517;Cleveland, etc., Co. v. Born (1911) 49 Ind. App. 62, 96 N. E. 777.
[4] The rule which now prevails in this state for the purpose of determining the sufficiency of a complaint when tested by demurrer was announced in Fauvre Coal Co. v. Kushner (1919) 188 Ind. 314, 123 N. E. 409, 413, as follows:
After having filed its demurrer to the complaint and it had been overruled, appellant filed a motion to make the complaint more specific. Whether in view of Acts 1915, c. 62, p. 123, section 360, Burns' 1926, this motion was filed in time, we do not express an opinion; it was, to say the least, an illogical order of procedure. Our Code does not expressly point out the order to be followed; however, in the case of Crowder v. Reed (1881) 80 Ind. 1, Elliott, C. J., in his opinion, in commenting upon the proper procedure to be followed under such circumstances, said:
[5] But the question of granting or refusing a motion to make more specific is largely within the discretion of the trial court, and its action on appeal will not be reversed, unless it is made to appear that the party complaining of the ruling has suffered because thereof. The appellant has not shown that its rights were harmed by the overruling of this motion, so under the above rule we cannot say that the trial court erred. Diamond v. Cleary (1928) 88 Ind. App. 518, 162 N. E. 372.
The causes for a new trial not waived and discussed by appellant in its brief are: (1) The damages assessed by the jury were excessive; (2) the amount of the recovery was erroneous, being too large; ...
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Illinois Pipe Line Co. v. Coffman
...is now granted, and the court renders the following opinion superseding and in lieu of the opinion heretofore rendered upon April 19, 1933 (185 N.E. 323), wit: Appellee was a crop tenant upon the farm of Rufus P. Havens and Loretta Havens, located in Rush county. February 11, 1929, the Have......
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Illinois Pipe Line Co. v. Coffman
...H. Coffman against the Illinois Pipe Line Company. Judgment for plaintiff, and defendant appeals. Affirmed. Superseding former opinion, 185 N. E. 323.Simmons & Simmons, of Bluffton, and Titsworth & Titsworth, of Rushville, for appellant.Anderson, Mayfield & Rynerson, of Indianapolis, for ap......
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Federal Life Insurance Co. v. Relias
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