Indianapolis Telephone Company v. Sproul

• Citation: 93 N.E. 463,49 Ind.App. 613
• Decision Date: 30 December 1910
• Docket Number: 7,119
• Parties: INDIANAPOLIS TELEPHONE COMPANY v. SPROUL
• Court: Indiana Appellate Court

93 N.E. 463

49 Ind.App. 613

INDIANAPOLIS TELEPHONE COMPANY v. SPROUL

No. 7,119

Court of Appeals of Indiana

December 30, 1910

Rehearing denied June 7, 1911. Transfer denied March 8, 1912.

From Hancock Circuit Court; Robert L. Mason, Judge.

Action by William E. Sproul against the Indianapolis Telephone Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Elmer E. Stevenson, Lewis C. Walker, Felt & Binford, for appellant.

James L. Mitchell, Cook & Cook, Elam & Fesler, for appellee.

OPINION

ROBY, J.

Action by appellee. Complaint in one paragraph. Demurrer for want of facts overruled. Answer in general denial. Trial by jury. Verdict for $ 2,500, with answers to ninety-seven interrogatories. Motions for judgment on such answers and for a new trial were overruled. Judgment on the verdict.

The complaint covers four closely printed pages of appellant's brief. Its substance is that plaintiff was on January 23, 1906, in the employ of defendant as a cableman that it was his duty, as ordered, to repair breaks in cables of a telephone system owned and operated by defendant in Indianapolis; that on said day at defendant's order he climbed a pole forty or fifty feet high for the purpose of repairing a break in the cable, and that while so engaged a cross-arm, on which he depended for support, "broke without warning, and plaintiff was thrown from said platform to the ground, a distance of about forty feet." Injuries caused by said fall are detailed.

The charge of negligence is as follows "That said cross-arm, whose breaking, in manner herein detailed, threw plaintiff to the ground, and caused his injuries, was a knotty and defective piece of timber, and, by reason of its being maintained in its exposed position for a great number of years, without being properly protected or having been replaced by new and perfect timber, had become further weakened and rotted, and was unfit for use for the purposes for which it was used by defendant; that the portion of said telephone system wherein was located the pole from which the plaintiff fell, as herein stated, had been maintained for so many years since its first erection that many of the cross-arms and poles thereon had become rotted, weakened and unfit for service, and numerous reports had been made to the foreman of said defendant company and to the superintendent of construction of said company, that the poles and cross-arms on said 'lead' or portion of said system were rotted and dangerous, all of which was known to defendant company but was unknown to plaintiff."

The first question presented challenges the action of the court in overruling the demurrer to the complaint. It is therefore pertinent to review the legislative enactments in the light in which the question must be considered.

The code requires that a complaint shall contain "a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended." § 343, subd. 2, Burns 1908, § 338 R. S. 1881.

This is the law of the land. It furnishes the test by which the averments of every complaint are to be judged. No court has lawful power to set up a different standard. Exceptional cases may, no doubt, be found in our reports, in which pleadings are held defective for form of statement which seem to be in conflict with the plain and simple provision before quoted, but they are not to be understood as having modified or changed the statute, nor as defining the standard of intelligence of an average man. Cases may be found that are valuable only as illustrating the quality of intelligence possessed by others than average men.

There is another statute that cannot properly be overlooked. It is as follows: "In the construction of a pleading, for the purpose of determining its effect, its allegation shall be liberally construed; with a view to substantial justice between the parties; but when the allegations of a pleading are so indefinite or uncertain that the premise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment." § 385 Burns 1908, § 376 R. S. 1881.

The right of the defendant to file a demurrer is conferred by statute. The disposition to be made of it is also fixed by statute, which is as follows.

"The judgment upon overruling a demurrer shall be that the party shall plead over; and the answer or reply shall not be deemed to overrule the objection taken by demurrer. But no objection taken by demurrer, and overruled, shall be sufficient to reverse the judgment, if it appear from the whole record that the merits of the cause have been fairly determined. If a party fail to plead after the demurrer is overruled, judgment shall be rendered against him as upon a default." § 350 Burns 1908, § 345 R. S. 1881.

It is also provided, that, "the court may, at any time, in its discretion, and upon such terms as may be deemed proper for the furtherance of justice, direct the name of any party to be added or struck out; a mistake in name, description, or legal effect, or in any other respect, to be corrected; any material allegation to be inserted, struck out, or modified--to conform the pleadings to the facts proved, when the amendment does not substantially change the claim or defense." § 405 Burns 1908, § 396 R. S. 1881.

It is also provided that "no judgment shall be stayed or reversed, in whole or in part, by the Supreme Court, for any defect in form, variance, or imperfections contained in the record, pleadings, process, entries, returns, or other proceedings therein, which by law might be amended by the court below, but such defects shall be deemed to be amended in the Supreme Court; nor shall any judgment be stayed or reversed, in whole or in part, where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below." § 700 Burns 1908, § 658 R. S. 1881.

It is not necessary in this case to invoke any of the liberal and just provisions before quoted. Measured by the most hypercritical standard, the pleading is unexceptional. Logically it is subject to criticism because of its prolixity, its particularity of detail, and the setting out of evidentiary facts and matters of common knowledge which do not need to be pleaded. But there is a reasonable excuse therefor. So far as the question...