Indiana Nitroglycerine And Torpedo Company v. Lippincott Glass Company
| Decision Date | 25 October 1905 |
| Docket Number | 20,726 |
| Citation | 75 N.E. 649,165 Ind. 361 |
| Parties | Indiana Nitroglycerine and Torpedo Company v. Lippincott Glass Company |
| Court | Indiana Supreme Court |
From Superior Court of Madison County; Henry C. Ryan, Judge.
Action by the Lippincott Glass Company against the Indiana Nitroglycerine and Torpedo Company and another. From a judgment for plaintiff against such company, it appeals. Transferred from Appellate Court under subd. 2, § 1337j Burns 1901, Acts 1901, p. 565, § 10.
Reversed.
Dailey Simmons & Dailey, for appellant.
James A. May and Walker & Foster, for appellee.
Appellee brought this action against appellant and Stephen A. Clarke to recover damages sustained by appellee, alleged to have been caused by the negligence of said Clarke, as the servant of appellant, in and about the "shooting" of a gas-well with nitroglycerine. The cause was tried under issues made by the joint answers of the defendants. There was a verdict in favor of appellee and against appellant on the fifth paragraph of the complaint but the verdict was silent as to Clarke. The court rendered judgment for appellee against appellant for the amount of the verdict, and rendered judgment in favor of Clarke that appellee take nothing and for costs.
It is urged that the court below erred in sustaining a demurrer to a plea in abatement of the action, which was filed by appellant. The action was instituted in Madison county, and it appears from the plea that appellant was organized and had its office in Marion county. The summons for appellant was served on said Clarke, as its agent, and it is alleged in the plea that at the time of the commencement of the action, and at the time of the pretended service, Clarke was in the employ of appellant as a laborer, and not otherwise. It was held in Wright v. Compton (1876), 53 Ind. 337, that a servant and his master may be joined in an action for the tort of the former, committed during the course of his employment.
As this action is of the same character, and as it is not questioned that Clarke was a resident of Madison county, it follows that there was no ground disclosed for the abating of the action. At the most, said plea showed only a ground for the quashing of the service upon appellant, and, this being true, there was no reason for the abating of the action, as appellee was entitled, in the event the writ was quashed, to an alias writ directed to the sheriff of Marion county.
It affirmatively appears that the verdict was on the fifth paragraph of the complaint, and it is contended on behalf of appellant that a demurrer which it addressed to said paragraph should have been sustained, because there was no averment of noncontributory negligence. Where the injury complained of is to property, it is no doubt the law that to make a complaint for negligence sufficient it must appear that the plaintiff was not guilty of contributory negligence; but a direct averment is unnecessary. Under the more liberal rules of code pleading, it is sufficient if a fact appears as a necessary inference from such facts as are well pleaded. Malott v. Sample (1905), 164 Ind. 645, 74 N.E. 245, and cases cited; Pennsylvania Co. v. Sears (1894), 136 Ind. 460, 34 N.E. 15. This rule has been applied in determining whether a complaint shows noncontributory negligence on the part of the plaintiff. Evansville, etc., R. Co. v. Dexter (1865), 24 Ind. 411; Riest v. City of Goshen (1873), 42 Ind. 339; Jeffersonville, etc., R. Co. v. Goldsmith (1874), 47 Ind. 43; Duffy v. Howard (1881), 77 Ind. 182. In the complaint before us it is alleged "that said explosion and each and all of said injuries and damages to plaintiff and to said well were each and all caused, produced and occasioned solely and entirely by the unskillfulness and negligence of defendants in shooting said well." This was clearly sufficient under the above authorities.
The court instructed the jury that certain of the paragraphs of the complaint were founded on the theory of negligence, and that the other paragraphs were based on a breach of contract. The twelfth instruction of the court, to the giving of which appellant excepted, was...
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