Malott v. Sample

• Decision Date: 11 May 1905
• Docket Number: 20,584
• Parties: Malott, Receiver, v. Sample
• Court: Indiana Supreme Court

74 N.E. 245

164 Ind. 645

Malott, Receiver, v. Sample

No. 20,584

Supreme Court of Indiana

May 11, 1905

From Superior Court of Marion County (63,139); Vinson Carter Judge.

Action by Vinton A. Sample against Volney T. Malott as receiver of the Terre Haute & Indianapolis Railroad Company. From a judgment on a verdict for $ 10,000 for plaintiff, defendant appeals. Appealed from Appellate Court under subdivision 3 § 1337j Burns 1901, Acts 1901, p. 565, § 10, subd 3.

Reversed.

D. P. Williams and John G. Williams, for appellant.

Henry N. Spaan, for appellee.

OPINION

Gillett, J.

This was an action by appellee against Volney T. Malott, as receiver of the Terre Haute & Indianapolis Railroad Company, to recover for an injury to appellee's person. A demurrer to the complaint for want of facts was overruled, and the question as to the propriety of this ruling is before us for determination. It is not necessary to set out all of the averments of the complaint. It appears therefrom that appellee was a brakeman in the employ of appellant, and that while in the line of his duty he was injured by a fall from a stirrup upon a freight-car, owing to the fact that the stirrup was defective, in that a nut to a bolt that held the stirrup in position had come off, and had not been replaced. There is a general averment of negligence in failing to make the repair, and appellee alleged that he did not know of the defect. The objections of appellant's counsel to the complaint relate to the element of knowledge upon the part of the master. Those portions of the complaint relative to knowledge and negligence are so interwoven that it will be necessary to quote from the pleading at some length to exhibit its character in respect to the matter which is drawn in question. It is alleged: "That the injuries heretofore set forth, suffered by the plaintiff, were caused by the negligence of the defendant in this, to wit: That the stirrup aforesaid upon which the plaintiff stepped when about to climb said car was allowed to get out of repair by the loss of, and the failure to replace, the nut to the screw that held one end of said stirrup in place--that is, that end next to the end of the sill of said car; that said stirrup had been out of repair for a sufficient length of time before the happening of the injury to the plaintiff aforesaid for the defendant, by the exercise of reasonable diligence, to have discovered the same, and that, notwithstanding the fact that by the exercise of reasonable diligence the defendant could have discovered the defect in the stirrup aforesaid before the happening of the injury to plaintiff in time to have placed said stirrup in proper repair, said stirrup was not placed in proper repair, but carelessly and negligently allowed to remain in the condition above described."

It was held in Evansville, etc., R. Co. v. Duel (1893), 134 Ind. 156, 33 N.E. 355, upon a full review of the Indiana authorities, that as between master and servant it is necessary for the complaint to show that the master had knowledge, actual or constructive, of the defect, in order to charge him with negligence in failing to repair. This holding rests upon the ground that the existence of such knowledge is one of the basic conditions out of which a duty springs; that is, that before the master can properly be charged with negligence he must not only have been at fault, but he must have had knowledge, actual or imputed, of his omission. The holding in Evansville, etc., R. Co. v. Duel, supra, has not been departed from by this court, and as appellee's counsel concedes that said case declares the law of this State upon said question, we need not accumulate authorities upon the point. We are of opinion that the complaint is insufficient in respect to the element suggested.

It is a rule of pleading that facts must be positively and expressly averred. 7 Bacon's Abr., 510; Stephen, Pleading (Tyler's ed.), 340; Jackson School Tp. v. Farlow (1881), 75 Ind. 118; Avery v. Dougherty (1885), 102 Ind. 443, 52 Am. Rep. 680, 2 N.E. 123; Indiana, etc., R. Co. v. Adamson (1888), 114 Ind. 282, 15 N.E. 5; Shirk v. Mitchell (1894), 137 Ind. 185, 36 N.E. 850; McElwaine-Richards Co. v. Wall (1902), 159 Ind. 557, 65 N.E. 753; Leadville Water Co. v. City of Leadville (1896), 22 Colo. 297, 45 P. 362; Byington v. Board, etc. (1887), 37 Kan. 654, 16 P. 105; Hord v. Dishman (1808), 2 H. & M. (Va.) 595; Moore v. Dawney (1808), 3 H. & M. (Va.) 127; Shafer v. Bear River, etc., Min. Co. (1854), 4 Cal. 294; Pomeroy, Code Remedies (3d ed.), p. 601. In Jackson School Tp. v. Farlow, supra, it was said by Elliott, J.: "It was the rule at common law, and is the rule under the code, that matters can not be pleaded by way of recital. Facts must be positively alleged." It is required under our procedure that the complaint shall contain a statement of the facts constituting the cause of action (§ 341 Burns 1901, § 338 R. S. 1881), and it is a ground of demurrer that "the complaint does not state facts sufficient to constitute a cause of action." § 342 Burns 1901, § 339 R. S. 1881.

A demurrer admits only such facts as are sufficiently pleaded. Indiana, etc., R. Co. v. Adamson, supra; Stephen, Pleading (Tyler's ed.), 159, 160. Under the more liberal rule which obtains under our code, matters of necessary inference from what is alleged are to be considered on demurrer (Byard v. Harkrider [1886], 108 Ind. 376, 9 N.E. 294; Douthit v. Mohr [1889], 116 Ind. 482, 18 N.E. 449; Evansville, etc., R. Co. v. Darting [1893], 6 Ind.App. 375, 33 N.E. 636), but this doctrine is not to be carried further than to authorize the consideration of matters of inference from facts which are well pleaded. 6 Ency. Pl. and Pr., 269.

It will be observed in the complaint before us that the first allegation relative to constructive knowledge is that the stirrup had been out of repair for a sufficient length of time for the defendant, by the exercise of reasonable care, to have discovered the same. It is clear that this does not go far enough, for the master can not be guilty of negligence until a sufficient length of time has elapsed after knowledge, actual or constructive, to afford him an opportunity to repair the defect, or at least to notify the servant of the danger. See Seaboard Mfg. Co. v. Woodson (1891), 94 Ala. 143, 10 So. 87; United States Rolling Stock Co. v. Weir (1891), 96 Ala. 396, 11 So. 436; Indianapolis, etc., R. Co. v. Flanigan (1875), 77 Ill. 365; Missouri Pac. R. Co. v. Sasse (1893) (Tex. Civ. App.), 22 S.W. 187; 20 Am. and Eng. Ency. Law (2d ed.), 94. See, also, Lake Shore, etc., R. Co. v. Stupak (1890), 123 Ind. 210, 23 N.E. 246.

The remaining language of the complaint relative to constructive knowledge we again quote, for the sake of having it appear in this immediate connection. It is charged "that notwithstanding the fact that by the exercise of reasonable diligence the defendant could have discovered the defect in the stirrup aforesaid before the happening of the injury to plaintiff in time to have placed said stirrup in proper repair, said stirrup was not placed in proper repair but carelessly and negligently allowed to remain in the condition above described." It will be observed that all that is alleged by the language just quoted is that the stirrup was not placed in repair, but was carelessly and negligently allowed to remain in the condition which the pleader had before described. If this were a case where it would be enough merely to charge the master with negligence, the complaint would be sufficient, but here such previous knowledge was indispensable to a right of recovery, and yet we find that there is no direct charge that by the exercise of reasonable diligence the master might have discovered the defect in time to have made the repair. The statement that, "notwithstanding the fact" the master might, by the exercise of reasonable diligence, have discovered the defect in time to have repaired it before the injury, is not an allegation that the master could have discovered the defect within such time by reasonable diligence, but it is a bald assumption of the existence of a fact which is not averred, which was inserted in the pleading as a mere introduction to the charge of negligence which follows. Bliss, Code Plead. (3d ed.), § 318, says: "To state or aver that a thing is so or so is very...