Louisville v. Ader

• Citation: 11 N.E. 437,110 Ind. 376
• Parties: Louisville, N. A. & C. Ry. Co. v. Ader.
• Decision Date: 19 April 1887
• Court: Supreme Court of Indiana

110 Ind. 376

11 N.E. 437

Louisville, N. A. & C. Ry. Co.

v.Ader.

Supreme Court of Indiana.

April 19, 1887.

Appeal from circuit court, Clay county.

Geo. W. Friedley, Geo. W. Easley, and Geo. R. Eldridge, for appellant. S. A. Hayes, for appellee.

HOWK, J.

In this case appellee sued the appellant in a complaint of four paragraphs to recover damages for personal injuries. The suit was commenced in the Putnam circuit court; but, after the cause was put at issue, on appellant's application, the venue thereof was changed to the court below. There the issues joined were tried by a jury, and a verdict was returned for appellee, assessing his damages in the sum of $1,875. Over appellant's motion for a new trial, judgment was rendered on the verdict.

In this court appellant has assigned errors upon the record of this cause as follows: (1) The court erred in overruling appellant's motion for a new trial; (2) appellee's complaint does not state facts sufficient to constitute a cause of action; and (3) neither the first, second, third, nor fourth paragraph of complaint state facts sufficient to constitute a cause of action.

We will consider these alleged errors in the inverse order of their statement, and decide the questions thereby presented.

3. In section 339, Rev. St. 1881, six causes of demurrer to a complaint are specified, “and it is enacted for no other cause shall a demurrer be sustained.” In section 343, Rev. St. 1881, it is provided that, where any of the statutory causes of demurrer enumerated in section 339, supra, “do not appear upon the face of the complaint, the objection (except for misjoinder of causes) may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and except the objection that the complaint does not state facts sufficient to constitute a cause of action.”

In construing these statutory provisions, it is settled by our decisions that while an objection to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action, is not waived by the defendant's failure to present such objection either by demurrer or by answer, but may be made for the first time by an assignment of error in this court. Still such error can only be predicated upon the complaint as an entirety, and will not call in question the sufficiency of the facts stated in the separate and several paragraphs thereof. Caress v. Foster, 62 Ind. 145;Buchanan v. Lee, 69 Ind. 117;Ludlow v. Ludlow, 109 Ind. 199, 9 N. E. Rep. 769. The third error assigned by appellant, therefore, presents no question here in relation to the sufficiency of the cause of action stated in either paragraph of appellee's complaint.

2. The second error assigned by appellant challenges the sufficiency of appellee's complaint, as an entirety, for the first time, in this court. If the appellee in any one paragraph of his complaint herein has stated facts sufficient to constitute a cause of action, appellant's second error would not be well assigned, or available to it for any purpose, even if the other paragraphs were wholly insufficient. If, however, appellee has not stated a cause of action against the appellant in any paragraph of his complaint herein, the second error would be well assigned, and would entitle appellant to the reversal of the judgment. Buchanan v. Lee, supra.

It is virtually conceded by appellee's counsel, as we understand his argument, that the verdict of the jury is and must be rested upon the second paragraph of the complaint herein. In this second paragraph appellee alleged that on the ------ day of September, 1881, at Putman county, Indiana, and at a point on the line of appellant's railroad where appellee might lawfully be, to-wit, at the platform of the depot of the Indianapolis & St. Louis Railroad, at a point near where the last-named railroad crossed appellant's track, and at a point on such platform where the public were in the habit of passing back and forth in going to and from the depots of said railroads, the appellant, by its agents, servants, and employes, “carelessly, negligently, wantonly, and willfully” ran, and caused to be run, a certain locomotive engine, owned by appellant, and operated by its agents, servants, and employes, on the line of its road, on, against, and over the appellee, then and there and thereby greatly bruising and injuring him, whereby his right leg was so badly crushed as to render its amputation necessary, and whereby three of the toes on his left foot were cut entirely off, thereby permanently crippling and forever disabling appellee, and rendering him unable to follow his usual avocation, and causing him great mental and physical pain and suffering, whereby he was greatly damaged, to-wit, in the sum of $5,000; wherefore, etc.

It will be observed that, in this paragraph of his complaint, appellee has not averred that the injuries of which he complains were received by him withoutany contributory fault or negligence on his part. In the absence of this averment, the question arises, and this is the controlling question in the case, under the error we are now considering, do the facts stated by appellee in the second paragraph of his complaint, the substance of which we have given, show that he was purposely and intentionally injured by appellant's agents, servants, or employes, as stated therein, with the design on their part to produce such injuries? or were his injuries, as stated in such paragraph, the natural and probable consequences of the injurious acts of appellant's agents, servants, or employes, whereof appellee complained in such second paragraph? We are of opinion that each of these two questions must be answered in the negative.

The paragraph of complaint we are now considering cannot be distinguished in principle from the second paragraph of complaint in the well-considered case of Belt R., etc., Co. v. Mann, 107 Ind. 89, 7 N. E. Rep. 893. In the case cited, the substance of the second paragraph of complaint is given in the opinion of the court; and it will be readily seen therefrom that the paragraph of the complaint in the case in hand, in so far as the appellee has attempted to charge that he was purposely and intentionally injured by the appellant herein, cannot be distinguished in any material...