Oliver v. Coffman

• Decision Date: 22 December 1942
• Docket Number: 16904.
• Citation: 45 N.E.2d 351,112 Ind.App. 507
• Parties: OLIVER v. COFFMAN.
• Court: Indiana Appellate Court

45 N.E.2d 351

112 Ind.App. 507

OLIVER v. COFFMAN.

No. 16904.

Appellate Court of Indiana, in Banc.

December 22, 1942

[Copyrighted Material Omitted]

Robert F. Murray and Leonidas A. Guthrie, both of Muncie, for appellant.

Clarence E. Benadum and Archie Lapin, both of Muncie, for appellee.

BEDWELL Judge.

The appellee, Irvin Coffman, brought this action against the appellant, Arthur Oliver, to recover damages for personal injuries alleged to have been suffered because of appellant's negligence. There was a trial by jury which returned a verdict against appellant in the amount of $3,500 and he has appealed from the judgment thereon.

The complaint of appellee alleged, in substance, that on the 1st day of June, 1939, there existed in Delaware County, Indiana one mile west of a point and place known as "Cross Roads", an intersection of two public gravel roads, one of which extended in a northern and southern direction, was approximately 20 feet in width and was known as "Helvie Road"; while the other extended in an eastern and western direction, was approximately 20 feet in width, and was known as the "Brandon Road."

It further alleged, in substance, that on such date at about 7:30 o'clock p. m., the appellee was driving a Ford automobile in a southern direction toward such intersection, at a rate of speed of 20 miles per hour; that as he approached the same he stopped and looked to the east and the west for approaching vehicles, but observed none; that he then proceeded to pass over such intersection and drove his automobile in a southern direction to a point two-thirds the distance across the intersection, when the appellant then and there drove a Dodge truck, at a rate of speed of 40 miles per hour, in an eastern direction, over a small hill, and then and there carelessly and negligently drove such truck against the right rear wheel of appellee's automobile, damaging the same and injuring appellee in described particulars.

The complaint contained four charges or specifications of negligence in which the appellant was charged with carelessly, negligently, wrongfully and unlawfully, (1) failing to accord the right of way across the intersection to appellee's automobile when the same had reached the intersection before the truck of appellant; (2) driving the truck into the intersection at a high and dangerous rate of speed of 40 miles per hour under the conditions then and there existing; (3) operating a truck in such a way and manner as to endanger the lives and limbs of persons using the public roads and highways at such time and place, and (4) failing to stop the truck when appellant saw, or by the exercise of reasonable care should have seen, that a collision with the automobile of appellee was imminent.

Appellant's first claim of error is in the overruling of his motion to strike out parts of such complaint. The particular portions thereof thus sought to be eliminated were the specifications of negligence and a clause descriptive of the condition of the appellee as a result of his injuries. The reasons ascribed in the memorandum of the motion were that the allegations in question stated conclusions of law instead of facts.

It is one of the fundamental principles of pleading that ultimate issuable facts, instead of evidentiary facts and conclusions of law, should be pleaded. Outing Kumfy-Kab Co. v. Ivey, 1919, 74 Ind.App. 286, 125 N.E. 234; Tecumseh Coal & Mining Co. v. Buck, 1922, 192 Ind. 122, 135 N.E. 481; Brown v. Freudenberg, 1938, 106 Ind.App. 692, 17 N.E.2d 865; Martin v. Youngblood, 1937, 211 Ind. 647, 7 N.E.2d 997.

An ultimate fact is the final or resultant fact that has been reached, by the processes of logical reasoning, from the detailed or probative facts. 41 Am.Jur., Pleading, sec. 7, p. 292. A "conclusion of fact" is quite often indistinguishable from an ultimate issuable fact; it is a conclusion of fact reached by reasoning from detailed or probative facts. See Zuniga v. Evans, 87 Utah 198, 48 P.2d 513, 101 A.L.R. 532.

While numerous decisions of this and the Supreme Court declare that ultimate issuable facts and not evidentiary facts should be stated in a pleading, other decisions of both courts, state, and the statute provides, that a motion may be made that the pleader be required to state the facts necessary to sustain the conclusion alleged, where a "conclusion of fact" is pleaded. Sec. 2-1005, Burns' 1933; State ex rel. Department of Financial Institutions v. Hardy, 1940, 218 Ind. 79, 30 N.E.2d 974; Central Bank of West Lebanon v. Martin, 1919, 70 Ind.App. 387, 121 N.E. 57.

This is confusing to the pleader, and to the trial court when it is required to rule upon motions to strike out or make more specific. While conclusions of law, ordinarily, should not be pleaded and will be disregarded, if pleaded (Tecumseh Coal & Mining Co. v. Buck, supra; Union Traction Co. of Indiana v. Ross, 1919, 71 Ind.App. 473, 125 N.E. 72), conclusions of law are pleadable in certain cases, and it is permissible to plead anything which according to the common and ordinary use of language amounts to a mixed statement of fact and of a legal conclusion. An allegation of negligence is such. 41 Am. Jur., Pleading, sec. 17 p. 302. An averment that a thing was negligently, or carelessly, or recklessly, or wilfully, or wantonly, or intentionally done is considered an averment of an ultimate fact. Pittsburgh, etc., R. Co. v. Nichols, 1922, 78 Ind.App. 361, 381, 130 N.E. 546; 38 Am.Jur., Negligence, sec. 261, p. 951.

The line of demarcation between "ultimate facts" or "conclusions of fact", and "conclusions of law", is quite often shadowy and indistinct, and it is difficult, if not impossible, to formulate a definition that will distinguish a conclusion of law from a conclusion of fact or from an ultimate fact. Sometimes an allegation which ordinarily would be considered an allegation of fact will be regarded as a legal conclusion when based upon other allegations. An example is an allegation of the ownership of specific property. While considered an ultimate fact, if standing alone, it will be considered a conclusion of law where the pleader sets forth a claim of title, and upon the claim so pleaded alleges ownership. Wagner v. Law, 3 Wash. 500, 28 P. 1109, 29 P. 927, 15 L.R.A. 784, 28 Am.St.Rep. 56.

So, in an action, where an attempt is being made to strike a material allegation from a pleading upon the ground that it states a legal conclusion, the motion should not be sustained when any doubt exists as to the nature of the allegation. If it is an immaterial allegation, that is surplusage, it may, within the discretion of the trial court, be sustained. The charges of negligence and the allegations stating the condition of appellee before and after his injury were material allegations, and were allegations of ultimate facts. The trial court, properly, overruled appellant's motion to strike out the same. If the motion had been improperly overruled, the action of the trial court would not have constituted reversible error.

Error on appeal cannot be predicated upon the action of a trial court in overruling a motion to strike out a part or all of a pleading. Guenther v. Jackson, 1920, 73 Ind.App. 162, 126 N.E. 873; London & Lancashire Indemnity Co. v. Community Savings & Loan Ass'n, 1936, 102 Ind.App. 665, 670, 4 N.E.2d 688; Lindley v. Sink, 1940, 218 Ind. 1, 6, 30 N.E.2d 456.

Appellant next claims that the trial court erred in refusing to sustain his motion to make the complaint more specific. One of the charges of negligence set forth that the appellant negligently, wrongfully, and unlawfully drove his truck over a small hill into and upon the intersection of the two highways at a high and dangerous rate of speed, to-wit, 40 miles per hour. Appellant by his motion sought additional facts to show that the speed of 40 miles per hour at such time and place was unlawful or negligent. The complaint sets forth details concerning the time, place, and scene of the collision with a description of the acts of appellant and appellee just before and at the time of the collision.

Rulings on motion to make a complaint more specific are largely within the discretion of the trial court and its decision will not be reversed on appeal in the absence of a showing of abuse of discretion. Atkinson v. Davis, 1938, 105 Ind.App. 375, 376, 379, 13 N.E.2d 355; Hill v. Boggs, 1934, 98 Ind.App. 506, 509, 185 N.E. 300; Haskell & Barker Car Co. v. Trzop, 1920, 190 Ind. 35, 40, 128 N.E. 401.

A motion to make a pleading more specific is properly filed when the pleading to which the motion is addressed is not sufficiently definite to enable the adverse party to intelligently prepare his responsive pleadings or to, with certainty, prepare the case for trial. Such a motion does not lie (1) when it seeks to compel the pleading of evidentiary facts (State Board of Tax Commissioners v. McDaniel, 1927, 199 Ind. 708, 160 N.E. 347); (2) when it calls for the pleading of facts which are peculiarly within the knowledge of the movant (Rock Oil Co. v. Brumbaugh, 1915, 59 Ind.App. 640, 646, 108 N.E. 260), or (3) when it is addressed to an allegation that is surplusage. Knox v. Trafalet, 1884, 94 Ind. 346.

It is appellant's contention that the allegations in question stated a conclusion of law. If such were true, it had no place in the complaint, added nothing to it and might be ignored. State ex rel. Department of Financial Institutions v. Hardy, supra. It could not be error to overrule...