Malott v. Sample

• Court: Supreme Court of Indiana
• Citation: 74 N.E. 245,164 Ind. 645
• Docket Number: No. 20,584.,20,584.
• Parties: MALOTT v. SAMPLE.
• Decision Date: 11 May 1905

164 Ind. 645
74 N.E. 245

MALOTT
v.
SAMPLE.

No. 20,584.

Supreme Court of Indiana.

May 11, 1905.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Vinton A. Sample against Volney T. Malott as receiver of the Terre Haute & Indianapolis Railroad Company. From a judgment of the Appellate Court affirming a judgment in favor of plaintiff (73 N. E. 1135), defendant appeals under Burns' Ann. St. 1901, § 1337j. Reversed.

J. G. Williams and D. P. Williams, for appellant. Henry N. Spoon, for appellee.

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 employment 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

[74 N.E. 246]

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, 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 concede 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 Township v. Farlow, 75 Ind. 118;Avery v. Dougherty, 102 Ind. 443, 2 N. E. 123, 52 Am. Rep. 680;Indiana, etc., R. Co. v. Adamson, 114 Ind. 282, 15 N. E. 5;Shirk v. Mitchell, 137 Ind. 185, 36 N. E. 850;McElwaine-Richards Co. v. Wall, 159 Ind. 557, 65 N. E. 753;Leadville Water Co. v. Leadville, 22 Colo. 297, 45 Pac. 362;Byington v. Com'rs of Saline Co., 37 Kan. 654, 16 Pac. 105;Hord's Executrix v. Dishman, 2 Hen. & M. 595;Moore's Adm'r v. Dawney, 3 Hen. & M. 127;Shafer v. Bear River, etc., Co., 4 Cal. 294; Pomeroy's Code Rem. p. 601. In Jackson School Township 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 cannot 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 (section 341, Burns' Ann. St. 1901), and it is a ground of demurrer that “the complaint does not state facts sufficient to constitute a cause of action.”...