Miller v. Miller

• Decision Date: 26 May 1897
• Docket Number: 2,183
• Citation: 47 N.E. 338,17 Ind.App. 605
• Parties: MILLER v. MILLER
• Court: Indiana Appellate Court

47 N.E. 338

17 Ind.App. 605

MILLER v. MILLER

No. 2,183

Court of Appeals of Indiana

May 26, 1897

From the Randolph Circuit Court.

Affirmed.

J. A Shockney, C. D. Bowen and Theodore Shockney, for appellant.

J. A Cheney, E. L. Watson, J. W. Macy and J. P. Goodrich, for appellee.

OPINION

ROBINSON, J.

Appellant brought suit against appellee to recover damages for the destruction by fire of certain property. A trial by jury resulted in appellee's favor.

The only error assigned is the overruling of appellant's motion for a new trial.

A new trial was asked on the ground that the verdict of the jury was not sustained by sufficient evidence, was contrary to the evidence, and contrary to the law; and for error of the court in giving to the jury certain instructions, and in refusing to give certain instructions requested by appellant.

In the first paragraph of the complaint it is alleged, among other things, that the appellee's lands adjoined the lands of appellant; that appellee had purposely and negligently permitted a large quantity of straw and stubble to accumulate and to be spread over his land; that on the day of the fire there was, and had been for a long time prior thereto, a great drought; that the earth was dry and parched and said stubble and straw were very dry and combustible; that a "stiff" wind was blowing from the direction of appellee's farm towards appellant's land; and while it was very hot and dry, and during said drought, and while the wind was so blowing, the appellee, "without any fault or negligence on the part of the plaintiff, purposely, wrongfully and negligently set fire to said stubble and straw, so allowed to accumulate on his said land, and caused the same to be fired in many places on his said land, so much so that the defendant was not able to, and did not and could not, control the same, and the said fire spread over said straw and stubble, and created a great and furious fire and conflagration, and the same was not controlled by the defendant, but by reason of the carelessness and negligence of the defendant said fire extended to the lands and fences of this plaintiff," destroying appellant's property, and that "said fire was not the result of any fault, carelessness or negligence of this plaintiff."

The allegations of the second paragraph of complaint, as to the manner in which the fire was started, are substantially the same as those of the first paragraph.

The theory of the trial court was, that the case as made by the pleadings and the evidence was an action for damages by reason of negligence, and that the case is not one seeking redress for a willful injury.

Counsel for appellant insist that the acts alleged in the pleading and proved by the evidence show appellee to have been guilty of a positive wrong, and that the injury was willfully committed. A determination of this question will decide many of the questions arising upon the giving and refusing to give instructions to the jury. As stated by counsel in their brief, appellant's contention is, that "under the complaint in this action it was not necessary to show that the plaintiff was free from contributory negligence, if, from the evidence, it was shown that the appellee was guilty of a positive wrong."

Every complaint must proceed upon some single, definite theory. This theory can be gathered only from the general scope and tenor of the pleading. Whether a complaint charges a willful tort, or negligent act must be determined from the language used by the pleader. The pleading cannot proceed upon more than one theory, and if it does, the court may construe it as proceeding upon the theory most apparent and most clearly authorized by the facts stated, and require the case to be tried upon that theory. Bateman v. Snoddy, 132 Ind. 480, 32 N.E. 327; Monnett v. Turpie, 132 Ind. 482, 32 N.E. 328; Feder v. Field, 117 Ind. 386, 20 N.E. 129; First Nat. Bank v. Root, 107 Ind. 224, 8 N.E. 105; Western Union Tel. Co. v. Reed, 96 Ind. 195, and cases cited; Mescall v. Tully, 91 Ind. 96, and cases cited.

The trial court did right in holding that the pleading proceeds upon the theory that the defendant was guilty of negligence. It is true, the pleading alleges that the appellee purposely, wrongfully, and negligently set fire to grass and stubble on appellee's land, and that the fire extended to appellant's land by reason of the carelessness and negligence of the appellee. The allegation that the fire was purposely set is not sufficient to show an aggressive willful tort. Ordinarily, a person has the right to use his premises as he pleases. It is true, all the circumstances existing at the time must be taken into consideration, but the facts alleged are not broad enough to cover appellant's contention. To charge such an act it must appear that the appellee, by his acts, intended to injure appellant, or that he acted with such a disregard of appellant's rights that the law will presume that he intended that the results would follow which did follow.

To charge that an act is "purposely" done in a case like that at bar, is not equivalent to a charge that it is "willfully" done. Even if it should be held that these words are equivalent, appellant's contention would not be strengthened. A pleading that avers that an act was negligently and willfully done is inconsistent in itself. Negligence and willfulness are the opposites of each other. An action cannot at once be the result of inattention and indifference, and of intention and design. An act that has been done willfully could not have been done negligently. Negligence implies the omission of duty and excludes the idea of willfulness. A pleading that alleges both is not strengthened, for the difference between the two is clear and well defined, and there is no middle ground upon which the pleader can stand and hope to draw strength from both sources. Beach Cont. Negl., section 62, et seq. If the act was willfully done the question of negligence cannot enter into the case. The aggressive wrong and not negligence is the basis of liability for a willful injury. In such a case a plaintiff is required to prove neither the negligence of the defendant, nor his own freedom from contributory negligence. Chicago, etc., R. R. Co. v. Nash, 1 Ind.App. 298, 27 N.E. 564.

The language used in a pleading must be given a reasonable and fair construction, and in determining the rights of the parties thereunder the court will look to the nature of the acts alleged. The use of epithets adds no force to a complaint. Thus, in Cleveland, etc., R. W. Co. v. Asbury, 120 Ind. 289, 22 N.E. 140, where the complaint in an action for negligence charged defendant with negligence, but used the qualifications "wanton," "willful" and "with the intention to injure the plaintiff," it was held that the gravamen of the action was simple negligence.

In the case of Chicago, etc., R. R. Co. v. Hedges Admx., 105 Ind. 398, 7 N.E. 801, it was alleged that the appellant "did then and there, carelessly, negligently, purposely, willfully and recklessly detach said locomotive engine from said train of cars, they being then in motion, etc., * * * negligently, purposely, willfully and recklessly leaving said train to follow, etc.," as the decedent "was in the act of passing over said main track, * * * the defendant * * carelessly, negligently, purposely, willfully and recklessly caused said train of cars to approach said crossing, and negligently, carelessly, purposely, willfully and recklessly omitted," to give any signal, and that by reason of "said careless, negligent, willful and reckless management of said train of cars," they ran upon decedent, causing his death, "without any negligence or want of ordinary care on his part." In holding that this complaint did not charge a willful killing, Black, C. J., speaking for the court, said: "Notwithstanding the...