Indiana, B. & W. Ry. Co. v. Dailey

• Decision Date: 08 March 1887
• Citation: 110 Ind. 75,10 N.E. 631
• Court: Indiana Supreme Court
• Parties: Indiana, B. & W. Ry. Co. v. Dailey.

110 Ind. 75

10 N.E. 631

Indiana, B. & W. Ry. Co.

v.Dailey.

Supreme Court of Indiana.

March 8, 1887.

Appeal from circuit court, Fountain county.

Thomas F. Davidson, for appellant. Thompson & Herod, W. H. Thompson, and T. F. Stilwell, for appellee.

HOWK, J.

In this case appellee sued the appellant, in a complaint of six paragraphs, to recover damages for personal injuries sustained by him, as alleged, while in appellant's service as a brakeman on one of its freight trains. The suit was commenced in the Montgomery circuit court, and was there put at issue by appellant's answer in general denial. On appellant's application the venue of the cause was then changed to the Fountain circuit court. There appellee withdrew the first paragraph of his complaint, and the issues joined upon the remaining five paragraphs were then tried by a jury, and a verdict was returned for appellant, the defendant below; but, on appellee's motion, the verdict was set aside, and a new trial awarded. The second trial of the cause resulted in a verdict for appellee, assessing his damages in the sum of $5,000. Over appellant's motions for a venire de novo, for judgment on the special findings of the jury notwithstanding their general verdict, and for a new trial, the court rendered judgment on the general verdict.

The first error of which appellant's counsel complain in argument is the overruling of the demurrer to the several paragraphs of appellee's complaint remaining in the record. The point is made by appellee's counsel, and earnestly insisted upon, that appellant's demurrer is to the complaint as an entirety, and does not question the sufficiency of each paragraph separately; and that, therefore, if any one paragraph was sufficient to withstand the demurrrer, the ruling complained of was correct, and would not authorize a reversal of the judgment below, even though all the other paragraphs were clearly bad. Omitting the venue and title of the cause, appellant's demurrer reads as follows: “The defendant demurs separately to the first, second, third, fourth, fifth, and sixth paragraphs of the plaintiff's complaint in the above-entitled cause, for the reason that none of said paragraphs states facts sufficient to constitute a cause of action.” It may be conceded that, in the early decisions of this court under our Civil Code, demurrers very similar in form to the one quoted above were held to be joint and not several demurrers. But of late years, in harmony with the requirements of section 376, Rev. St. 1881, that, “in the construction of a pleading for the purpose of determing its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties,” we have repeatedly held, and correctly so, we think, that demurrers substantially the same in form as the one above copied were several as well as joint, and would call in question the sufficiency of each as well as all of the paragraphs of the pleadings to which they were addressed. Stone v. State, 75 Ind. 235;Stribling v. Brougher, 79 Ind. 328;Carver v. Carver, 97 Ind. 497.

In their brief of this cause, appellant's counsel first insist that it was error to overrule the demurrer to the fourth paragraph of appellee's complaint. In this fourth paragraph the appellee alleged that on the twelfth day of October, 1881, and for a long time theretofore, he had been in the employment of appellant as its brakeman on its railroad in Montgomery county, Indiana; that, on the day last named, appellee was injured and crippled for life, and forever disabled from working for a living, by the gross negligence of appellant's agent and servant, “an engineer in plaintiff's employ;” that said engineer was well known at the time by appellant to be wholly incompetent and reckless, and without prudence or caution in the performance of his duties as an engineer or engine driver; that said engineer and appellee were and had been assigned to duty on the same train, to run and manage the same,-appellee as brakeman and coupler, and said engineer as engine driver thereof; that while appellee, in accordance with his duties, as ordered by the proper conductor of such train, was attempting to uncouple two of the cars in such train, in Montgomery county, at the time before stated, said engineer suddenly, and without any warning or notice to appellee, violently, and with gross negligence of duty, backed said train upon appellee, and so crushed him that he was injured as aforesaid, without any negligence of the appellee, who was then and there in the just performance of his duty to appellant. Wherefore appellee was damaged in the sum of $10,000, etc.

It will be observed that, in the foregoing paragraph, appellee alleged that he was injured “by the gross negligence of defendant's agent and servant, an engineer in plaintiff's employ.” It is claimed by appellant's counsel that the last three words in the allegation quoted, to the effect that the engineer through whose negligence the plaintiff said that he was injured, was at the time “in plaintiff's” employ, completely nullify and destroy the force of the precedent statement that such engineer was defendant's “agent and servant.” We must decline, however, to adopt counsel's view of the allegation quoted. The use of the word “plaintiff's,” instead of the word “defendant's,” in the closing statement of such allegation, is so palpably a merely clerical error that we would not notice it if appellant's counsel did not insist here in argument that this clerical misprision of itself vitiated the fourth paragraph of the complaint, and rendered it bad on demurrer. Merely clerical mistakes, such as the use of one word or one name for another, where, as in this case, there is and can be no possible room for doubt as to which one of two words or names the pleader intended to use, will not and ought not to vitiate the pleading in any court, under the statutory rule that “its allegations shall be liberally construed, with a view to substantial justice between the parties.” Section 376, Rev. St. 1881; Landon v. White, 101 Ind. 249.

We are of opinion that the court clearly erred in overruling appellant's demurrerto the fourth paragraph of appellee's complaint, the substance of which paragraph we have heretofore given. It is abundantly shown by the averments of this paragraph...