Outing Kumfy-Kab Company v. Ivey

• Decision Date: 12 December 1919
• Docket Number: 10,050
• Citation: 125 N.E. 234,74 Ind.App. 286
• Parties: OUTING KUMFY-KAB COMPANY v. IVEY
• Court: Indiana Appellate Court

125 N.E. 234

74 Ind.App. 286

OUTING KUMFY-KAB COMPANY v. IVEY

No. 10,050

Court of Appeals of Indiana

December 12, 1919

Rehearing denied May 14, 1920.

Transfer denied December 1, 1920.

From Laporte Circuit Court; James F. Gallaher, Judge.

Action by Glen Ivey against the Outing Kumfy-Kab Company. From a judgment for plaintiff, the defendant appeals.

This action was tried on appellee's amended complaint. The substance of so much of the complaint as is essential to an understanding of the questions presented by this appeal is as follows:.

Affirmed.

W. A McVey, H. B. McLane and Sutherland & Smith, for appellant.

E. E. Weir and Darrow & Rowley, for appellee.

"That Rheinhardt H. Brown and Emmet Scott were engaged in the manufacture of collapsible sulkies and baby carriages, at the times hereinafter mentioned. That on February 17th, 1915, the plaintiff entered into an oral agreement with Brown & Scott by the terms of which Brown & Scott agreed to employ the plaintiff, and the plaintiff agreed to work for said Brown & Scott in their factory. That after the plaintiff entered the employment of Brown & Scott and while engaged in the performance of said contract, Brown & Scott and their associates organized the defendant company, viz., the Outing Kumfy-Kab Company, a corporation, which company took over all the assets and assumed all the liabilities and contracts of said Brown & Scott as related to said factory and manufacturing business. That on the 18th day of February, 1915, plaintiff entered upon his duties as superintendent of the assembling department in said factory, as per his said contract, aforesaid, and continued his said services uninterruptedly until the 14th day of March, 1916, when the defendant discharged the plaintiff because he demanded of the defendant a balance of the salary he had earned, and other rights theretofore agreed upon, and without any other cause whatever. That the defendant assumed and agreed to pay the plaintiff for his services in his said employment, and the plaintiff agreed to accept therefor, the sum of one hundred twenty-five ($ 125) dollars per month and other considerations not herein sued upon. That the defendant has paid the plaintiff the sum of $ 72.00 per month, and has refused to pay the balance due him of $ 53.00 per month; and that there is due the plaintiff for his services in addition to the sums already paid him by the defendant the further sum of $ 690.00, which is wholly unpaid. That the plaintiff has performed all of the things by him agreed to be performed."

Appellant moved the court to require appellee to make his amended complaint more specific and definite by setting out the facts, if any, to support each of the following conclusions, viz.: (1) That the Outing Kumfy-Kab Company took over all the assets and assumed all the liabilities of Brown and Scott; (2) that the Outing Kumfy-Kab Company took over all the contracts of Brown and Scott; (3) that the defendant assumed and agreed to pay the plaintiff for his services in said employment, and also by setting out the date upon which the defendant assumed the contracts of Brown and Scott.

Appellant moved the court to strike from the complaint the words "and other considerations not herein sued upon," for the reason that said words are surplusage and tend to confuse the issues.

Each motion was overruled, and thereupon appellant filed answer in general denial.

Appellant requested the court to submit to the jury seventy-seven interrogatories, seven of which the court refused to submit. When all the evidence had been introduced, appellant moved the court to give the jury a peremptory instruction to return a verdict in its favor, which motion was overruled. Verdict for appellee in the sum of $ 689. Appellant moved for judgment in its favor on the answers to the interrogatories notwithstanding the verdict, which motion was overruled. Judgment on the verdict. Motion for new trial overruled.

The following errors are assigned: The court erred in overruling (1) the motion to require the appellee to make his amended complaint more specific; (2) the motion to strike out part of the amended complaint; (3) the motion for judgment on the answers to the interrogatories notwithstanding the verdict; (4) the motion for a new trial.

OPINION

DAUSMAN, J. (after making the foregoing statement):

(1) The averment that the appellant "took over all the assets and assumed all the liabilities of Brown & Scott" is the averment of an ultimate fact. Thayer, Evidence, ch. V.; Muser v. Robertson (1883), 17 F. 500. Perhaps it might properly be called a conclusion of fact, for it is to be determined from the evidential facts. Caywood v. Farrell (1898), 175 Ill. 480, 51 N.E. 775. The office of a pleading is to assert ultimate or issuable facts, which alone can invoke the function of the court to make the application of the law, and not mere matters of evidence from which the ultimate facts may be inferred. Pennsylvania Co. v. Zwick (1890), 1 Ind.App. 280, 27 N.E. 508; Watson, Rev. Works' Prac. § 339. By the first three specifications of the motion to make more specific, appellant sought to require the appellee to aver in his complaint mere evidential facts; and by the fourth specification appellant sought to require the averment of a fact which is peculiarly within its knowledge. The motion to make more specific was properly overruled.

(2) If it be conceded that the words which appellant sought to have stricken from the complaint constitute mere surplusage, even then the overruling of the motion to strike out does not constitute reversible error. Dill v. O'Ferrell (1873), 45 Ind. 268; Scott v. Indianapolis Wagon Works (1874), 48 Ind. 75; Board, etc. v. McClintock (1875), 51 Ind. 325; St. Louis, etc., R. Co. v. Valirius (1877), 56 Ind. 511; Hay v. State ex rel. (1877), 58 Ind. 337; Stevens v. Tucker (1882), 87 Ind. 109; Diamond Block Coal Co. v. Cuthbertson (1906), 166 Ind. 290, 76 N.E. 1060; Illinois, etc., R. Co. v. Cheek (1899), 152 Ind. 663, 53 N.E. 641; Grass v. Ft. Wayne, etc., Traction Co. (1908), 42 Ind.App. 395, 81 N.E. 514.

(3) The answers to the interrogatories are not inconsistent with the verdict.

(4) We are asked to determine whether the evidence is sufficient to prove the alleged oral contract. It is the theory of the Code of Civil Procedure that appellate tribunals shall not be required to determine questions of fact from conflicting evidence, and that on appeal only questions of law shall be presented. § 696 Burns 1914, § 655 R. S. 1881; Elliott, App. Proc. § 854. The utmost that can be required of this court is to determine whether there is evidence tending fairly to prove that contract. 1 Works' Prac. § 916; Elkhart Paper...