Mock v. Polley
| Decision Date | 12 April 1946 |
| Docket Number | 17431. |
| Citation | 66 N.E.2d 78,116 Ind.App. 580 |
| Parties | MOCK v. POLLEY. |
| Court | Indiana Appellate Court |
Lewis E. Marine and Richard L. Ewbank, both of Indianapolis, for appellant.
Todd & Craig and E. Dean Miller, all of Indianapolis, for appellee.
This case is an action by appellee against the appellant and one A. J. Carlisle, appellant's shop foreman, for damages for personal injuries.
The complaint alleged that appellee was an employee of appellant but was refused work, and on the afternoon of such refusal the appellee called at the office of appellant and requested a release of employment from the appellant; that thereupon he was violently assaulted and struck by appellant's shop foreman, Carlisle, at the suggestion, invitation, direction and command of the appellant; that the said Carlisle struck appellee twice on the left cheek bone and broke same in three places, and also broke and destroyed appellee's teeth thereby causing appellee great pain and mental anguish; that appellee, by reason of such injuries will be disfigured for life; that he was confined to a hospital for two days; that he was compelled to expend $50 for medical aid and hospital expenses; all occasioned by the wrongful acts of the defendants, all to his damage in the sum of $10,000.
The appellant filed a motion to make the complaint more specific in that appellee be required to make that part of the complaint reading '* * * and also broke and destroyed his teeth * * *' more specific, definite and certain by alleging the description and number of plaintiff's teeth which were broken and destroyed. This motion was overruled by the court.
Issues were then joined on the complaint. The case was tried to a jury and judgment rendered on the jury's verdict for the appellee, and against appellant, in the amount of $1500 damages.
Errors are assigned by appellant as follows: (1) That the trial court erred in overruling appellant's motion to make appellee's complaint more specific; (2) that the trial court erred in overruling appellant's motion for a new trial, which motion is based upon the ground that the verdict was not sustained by sufficient evidence, or is contrary to law.
In support of the first assignment of error, appellant contends that he could not prepare a proper defense because appellee was not required to give a specific description of the number of his teeth that were broken and destroyed. He also contends that since the evidence showed the teeth were false teeth and personal property, and plaintiff's cause of action was for personal injuries, and since the statute requires injuries to person and damage to property to be set out in separate paragraphs in a single action, the failure of the court to require appellee to make the complaint more specific was prejudicial in that defendant did not have the time or opportunity to prepare a proper defense.
We do not think that appellant's contention as to the first assignment of error is well founded.
It is well established in this state that the overruling of a motion to make a complaint more specific, even though technically erroneous, does not constitute reversible error unless it is shown to be prejudicial and that substantial injury resulted therefrom. Cline v. Rodabaugh, 1933, 97 Ind.App. 258, 179 N.E. 6; Carter v. Richart, 1917, 65 Ind.App. 255, 114 N.E. 110; Indianapolis Power & Light Co. v. Waltz, 1938, 104 Ind.App. 526, 12 N.E.2d 404.
The following cases cited by appellant in his brief--Holland v. Bartch, 1889, 120 Ind. 46, 22 N.E. 83, 16 Am.St.Rep. 307; Louisville, etc., Railway Co. v. Bates, Adm'r, 1897, 146 Ind. 564, 45 N.E. 108; Tipton Light, etc., Co. v. Newcomer, 1901, 156 Ind. 348, 58 N.E. 842; A. J. Yawger & Co. v. Joseph, 1916, 184 Ind. 228, 108 N.E. 774--are cases in which overruling of motions to make complaints more specific were held to be error because the complaints failed to state the particular acts constituting negligence. Such a rule is inapplicable to the allegations complained of in appellant's motion to make the complaint more specific in the instant case. In considering the sufficiency of the complaint, the trial court had the proper right to consider any reasonable and legitimate inferences which might be drawn from the allegations thereof. A reasonable inference from such allegations would be that it was alleged that all of plaintiff's teeth were destroyed, since the plural was used without any limitation. We fail to see how the defendant could have been harmed by the failure to enumerate the number of teeth which were destroyed, nor how the sustaining of appellant's motion and the requiring of appellee to state the number of teeth which were destroyed would have disclosed whether such teeth were false teeth, as claimed by appellant.
The complaint proceeds on the single theory as an action for damages for personal injuries. The complaint in this case, in a single allegation, states that appellant's foreman struck appellee twice on the left cheek and broke same in three places, and that his teeth were broken and destroyed, causing him great pain and mental anguish.
A person may suffer physical paid and actionable injuries as an incident to the breaking of false teeth, glasses or similar objects attached to his body, and the reference to such objects would constitute mere descriptive words and surplusage where such party seeks to recover damages for the personal injuries only.
We therefore hold that the complaint in the instant case was sufficient as against appellant's motion to make the complaint more specific and the points raised by the first assignment of error. The appellant was properly informed as to what he was called upon to defend, and there was no misjoinder of causes of action for personal injuries and property damage in the same paragraph of complaint.
In addition, the record shows that the appellant did not object to the introduction of evidence as to the value of false teeth as personal property, and no error is predicated upon the giving or refusing to give instructions on the law concerning such testimony. The evidence shows that the appellee suffered severe injuries, including a fracture of the zygomatic process and a fracture of the external wall and floor of the maxillary sinus, from which fractures there was some displacement, and which injuries were painful and permanent in nature. For such injuries alone and the permanent consequences thereof the amount $1500 damages was not excessive.
The second assignment of error by appellant is the action of the trial court in overruling his motion for a new trial which motion is based upon the ground that the verdict was not sustained by sufficient evidence, or is contrary to law. In support of this assignment, appellant contends that as a matter of law the injury inflicted upon appellee by appellant's foreman, Carlisle,...
To continue reading
Request your trial