Oölitic Stone Co. v. Ridge

• Decision Date: 09 January 1908
• Docket Number: No. 21,179.,21,179.
• Citation: 169 Ind. 639,83 N.E. 246
• Parties: OÖLITIC STONE CO. v. RIDGE.
• Court: Indiana Supreme Court

169 Ind. 639

83 N.E. 246

OÖLITIC STONE CO.

v.RIDGE.

No. 21,179.

Supreme Court of Indiana.

Jan. 9, 1908.

Appeal from Circuit Court, Morgan County; Joseph W. Williams, Judge.

Action by Andrew J. Ridge against the Oölitic Stone Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under Burns' Ann. St. 1901, § 1337j, cl. 2. Reversed, and new trial granted.

For opinion of Appellate Court, see 80 N. E. 441.

Duncan & Batman, Mr. Grubbs, and E. E. Stevenson, for appellant. Reinhard, Riddle. Watson & McGinnis and Gavin & Davis, for appellee.

MONKS, C. J.

This action was brought by appellee to recover damages for personal injuries received by him while in the employ of appellant. A trial of said cause resulted in a verdict for appellee, and over a motion for a new trial judgment was rendered thereon against appellant.

The errors assigned call in question the action of the court in overruling (1) the demurrer to the amended complaint; (2) the motion for a new trial. The theory adopted in the court below by the court and parties was that this action was under subdivision 2 of section 1 of the employer's liability act (Acts 1893, p. 294, c. 130; section 7083, Burns' Ann. St. 1901). It was upon this theory that the court below instructed the jury that there could be no recovery by appellee, except under said employer's liability act. It is claimed by appellant that the employer's liability act, except as applied to railroads, is in violation of the fourteenth amendment of the Constitution of the United States, and therefore the court erred in overruling its demurrer to the amended complaint, and its motion for a new trial. It is urged by appellee that said “employer's liability act is valid and constitutional, and that even if this cause is to be determined on this appeal on the theory that the case was instituted and prosecuted under said act, the judgment of the trial court should be affirmed.” Since said briefs were filed in this case, this court, on March 1, 1907, in Bedford Quarries Co. v. Bough (Ind.) 80 N. E. 529, held that said employer's liability act was unconstitutional and void so far as it applied to corporations of the class to which the appellant belongs. It is insisted, however, by appellee in his said brief that said amended complaint, which is in one paragraph, stated a good cause of action at common law as well as under the employer's liability act in favor of appellee against appellant, and that therefore this cause should not be reversed, even if said act is unconstitutional as applied to appellant. In Mescall v. Tully, 91 Ind. 96, 99, this court said: “It is an established rule of pleading that a complaint must proceed upon some definite theory, and on that theory the plaintiff must succeed, or not succeed at all. A complaint cannot be made elastic so as to take form with the varying views of counsel. Johnston v. Griest, 85 Ind. 503;Platter v. City of Seymour, 86 Ind. 323;Johnston, etc., Co. v. Bartley, 81 Ind. 406;Judy v. Gilbert, 77 Ind. 96, 40 Am. Rep. 289;Lockwood v. Quackenbush, 83 N. Y. 607;Salisbury v. Howe, 87 N. Y. 128. The theory upon which the complaint is constructed is that the parol agreement transformed the deed from an absolute conveyance into an instrument creating a trust, and as this theory is overthrown by the authorities the entire complaint is foundationless. This theory is the foundation of the complaint, and, as that falls away, the whole pleading must go down.” The following authorities are to the same effect: Elliott, App. Proc. § 655, p. 587, and cases cited; Ewbank's Manual, § 288; Dyer v. Woods, 166 Ind. 44, 51, 52, 76 N. E. 624;Carmel, etc., Co. v. Small, 150 Ind. 427, 431, 47 N. E. 11, 50 N. E. 476;Terre Haute, etc., R. Co. v. McCorkle, 140 Ind. 613, 622, 623, 40 N. E. 62, and cases cited; Copeland v. Summers, 138 Ind. 219, 226, 35 N. E. 514, 37 N. E. 971; Ætna, etc., Co. v. Hildebrand, 137 Ind. 462, 473, 37 N. E. 136, 45 Am. St. Rep. 194;Balue v. Taylor, 136 Ind. 368, 373, 36 N. E. 269;Comegys v. Emerick, 134 Ind. 148, 152, 153, 33 N. E. 899, 39 Am. St. Rep. 245;Pearson v. Pearson, 125 Ind. 341, 344, 25 N. E. 342;Feder v. Field, 117 Ind. 386, 391, 20 N. E. 129;Manifold v. Jones, 117 Ind. 212, 217, 20 N. E. 124;Gregory v. Cleveland, etc., R. Co., 112 Ind. 385, 387, 388, 14 N. E. 228;Louisville, etc., R. Co. v. Godman, 104 Ind. 490, 494, 4 N. E. 163;Chicago, etc., R. Co. v. Bills, 104 Ind. 13, 16, 3 N. E. 611;Leeds v. City of Richmond, 102 Ind. 372, 384, 1 N. E. 711;Bremmerman v. Jennings, 101 Ind. 253, 256, 257;Sims v. Smith, 99 Ind. 469, 477, 50 Am. Rep. 99;Cottrell v. Ætna, etc., Co., 97 Ind. 311, 313;Western, etc., Co. v. Reed, 96 Ind. 195, 198, and cases cited; Western, etc., Co. v. Young, 93 Ind. 118, 119, and cases cited; Union, etc., Co. v. Adler, 38 Ind. App. 530, 536, 73 N. E. 835, 75 N. E. 1088;Rietman v. Bangert, 26 Ind. App. 468, 471, 59 N. E. 1089;Tibbet v. Zurbuch, 22 Ind. App. 354, 361, 362, 52 N. E. 815;Cleveland, etc., R. Co. v. Dugan, 18 Ind. App. 435, 438, 48 N. E. 238, and cases cited; Sanders v. Hartge, 17 Ind. App. 243, 250-252, 46 N. E. 604;Miller v. Miller, 17 Ind. App. 605-608, 47 N. E. 338;Callaway v. Mellett, 15 Ind. App. 366, 367-369, 44 N. E. 198, 57 Am. St. Rep. 238;Cleveland, etc., R. Co. v. De Bolt, 10 Ind. App. 174, 176, 37 N. E. 737.

The rule “that a complaint must proceed upon some definite theory, and must be good upon the theory upon which it proceeds,” as was said in Yorn v. Bracken, 153 Ind. 492, 495, 55 N. E. 257, 258, “does not require that the plaintiff must be entitled to all the relief asked for in the complaint to render it sufficient. If the plaintiff in an action is entitled to any of the relief asked for upon the theory of his case, then the complaint is sufficient to withstand a demurrer, or assignment of error that the same does not state facts sufficient to constitute a cause of action. Owen Township v. Hay, 107 Ind. 351, 8 N. E. 220;Culbertson v. Munson, 104 Ind. 451, 4 N. E. 57;Howe v. Dibble, 45 Ind. 120;Bennett v. Preston, 17 Ind. 291.” The theory of a pleading must be determined by the court from its general scope and tenor, and not from fragmentary statements and conclusions or detached parts. Ewbank's Manual, § 288; Balue v. Taylor, 136 Ind. 368, 373, 36 N. E. 269;Comegys v. Emerick, 134 Ind. 148, 152, 153, 33 N. E. 899, 39 Am. St. Rep. 245;Monnett v. Turpie, 132 Ind. 482, 485, 32 N. E. 328;Rollet v. Heiman, 120 Ind. 511, 513, 514, 22 N. E. 666, 16 Am. St. Rep. 340;Henry v. Stevens, 108 Ind. 281, 282, 9 N. E. 356. Where a complaint states facts sufficient to constitute a cause of action, the mere fact that it is difficult to tell which of two theories is the true one will not render such complaint insufficient on demurrer for want of facts, if the same is so framed that either theory is consistent therewith. Scott v. Cleveland, etc., R. Co., 144 Ind. 125, 128, 129, 43 N. E. 133, 32 L. R. A. 154. In Batman v. Snoddy, 132 Ind. 480, 32 N. E. 327, it was claimed by appellant that “two causes of action were stated in the second paragraph of his complaint,” and that said paragraph proceeded “upon two different theories.” This court said, in response to that contention: “We fail to discover the distinction, and even if such a distinction existed as that the paragraph stated facts making it good upon either theory, as contended by counsel, the court has the right to construe the paragraph as proceeding upon the theory which was most apparent and most clearly outlined by the facts stated, and require the case tried upon one definite theory. If the parties desire to present a cause of action on different theories, they must plead in separate paragraphs, confining each paragraph to a distinct theory.”

When two or more theories are outlined in a pleading, and the record does not disclose which was adopted in the trial court, this court on appeal will determine the theory of each pleading, the sufficiency of which is properly challenged from its general scope and tenor and not from fragmentary statements or conclusions, or, as stated in some of the cases cited, the court will construe such pleading by proceeding upon the theory which is most apparent and most clearly outlined by the facts alleged. But where, as in this case, a theory has been adopted by the parties and the trial court, and the case has been tried upon that theory, it must be adhered to on appeal. Elliott, App. Proc. §§ 489-496, and authorities cited; Ewbank's Manual, § 288, and authorities cited; 21 Ency. Pl. & Prac. p. 666; 2 Cyc. 670, 674; Crabb v. Orth, 133 Ind. 11, 12, 32 N. E. 711;Branson v. Studabaker, 133 Ind. 147, 155, 156, 33 N. E. 98, and...