Pfisterer v. Key
| Decision Date | 18 June 1940 |
| Docket Number | 16265. |
| Citation | 27 N.E.2d 892 |
| Parties | PFISTERER v. KEY. |
| Court | Indiana Appellate Court |
Appeal from Gibson Circuit Court; Eldo W. Wood, Special Judge.
Robert D. Markel and W. S. Furlow, both of Evansville, for appellant.
McDonald & McDonald and Sanford Trippet, all of Princeton, for appellee.
The appellee filed this action to recover damages for the death of a minor son who was struck and killed by an automobile driven by the appellant. The case was tried on a second amended complaint in two paragraphs. The first paragraph of this complaint alleged that the accident occurred at 7:30 P M. on June 21, 1936, on U. S. Highway No. 41, at about one-fourth mile south of the town of Patoka.
The complaint alleges that at the time and place the appellant was operating an automobile southward on said highway at a speed of forty-five miles per hour and the plaintiff's son was walking northward on said highway. Complaint further alleges "that at said time and place there were no obstructions of any kind or character upon said highway between said infant Charles Key and the automobile so driven by said defendant to prevent said defendant in the exercise of ordinary care from seeing said infant walking upon said highway; that at said time and place there was no other traffic upon said highway and when said automobile was to-wit, one-quarter of a mile distant from said infant, said defendant saw said infant so walking upon said highway, saw that his head was bent down and his vision directed to the pavement immediately in front of him and knew and appreciated that said infant was unaware of the approach of said automobile and said defendant carelessly and negligently continued to drive and operate his said automobile under such conditions and with such knowledge toward said infant and carelessly and negligently failed and refused to give any signal or warning by horn or other signaling device to notify said infant of the approach of said automobile and carelessly and negligently thereafter failed and refused to keep any watch or look-out ahead of said automobile to see whether or not said infant became aware of the approach of said automobile and carelessly and negligently failed to slow down his said automobile or slacken its speed in any way whatever and twenty seconds after so seeing and appreciating said infant's perilous position and danger, carelessly and negligently and with great force and violence directed and drove his said automobile upon and against plaintiff's said infant son so walking upon the traveled portion of said highway and thereby inflicted divers serious and mortal injuries, wounds and bruises upon the person and body of plaintiff's said infant, by reason of which he was thereby instantly killed."
The second paragraph of the second amended complaint contains substantially the same averments with the additional allegation that at the said time and place there was no other traffic upon the highway and there was a space of fifteen feet in width on the pavement to the east of the plaintiff's son over which the defendant could have operated his automobile and thereby have avoided the injury.
To this complaint and to each paragraph thereof the defendant, appellant herein, filed (1) a motion to separate into paragraphs, (2) a motion to strike out parts, (3) a motion to make more specific, all of which were by the court overruled. Demurrers were then filed to each paragraph of the complaint and also to parts thereof, and all were subsequently overruled. An answer in general denial followed. The case was submitted to a jury for trial which returned a verdict for the appellee in the sum of $1,500. Judgment was entered upon this verdict. A motion for new trial was filed and overruled and this appeal has been perfected.
Twenty-one separate assignments of error are relied upon by the appellant for a reversal of this judgment. The first twenty of these assignments relate to rulings of the court on motions and demurrers addressed to the pleadings. The twenty-first error assigned is the overruling of the motion for a new trial.
Under these assignments the appellant alleges error in overruling the motion to separate the first paragraph of the amended complaint into paragraphs. The appellant contends that this paragraph of complaint proceeds upon three separate theories, namely: negligence, willfulness, and last clear chance. We think this paragraph of complaint contains several allegations of negligence but this does not require that the complaint should be separated into paragraphs. American Carloading Corp. v. Gary Trust & Sav. Bank, 1940, Ind., 25 N.E.2d 777, 780. Neither do we think that this paragraph of complaint contains a charge of willful injury. The facts as alleged disclose that the appellant owed the deceased boy a duty to use ordinary care not to run against him and a charge that under such circumstances the appellant "carelessly and negligently and with great force and violence directed and drove his said automobile upon and against plaintiff's said infant son" does not amount to a charge of willful injury. Wellington v. Reynolds, 1912, 177 Ind. 49, 97 N.E. 155.
For substantially the same reasons there was no error in overruling the appellant's motion to require the appellee to separate the second paragraph of amended complaint into paragraphs.
The appellant also predicates error upon the overruling of appellant's motion to strike out parts of the first and second paragraphs of amended complaint. Without pointing out in this opinion the specific allegations included in these motions, for the purposes of this case we deem it sufficient to say that these allegations complained of were, generally speaking, allegations of fact which tended to constitute a cause of action. This court has repeatedly held that "the action of the trial court in refusing to strike out parts of a complaint is not reversible error." Terre Haute, etc., Co. v. McDermott, 1924, 82 Ind.App. 134, 144 N.E. 620, 622; Levy v. State ex rel., 1926, 86 Ind.App. 666, 152 N.E. 873; Rooker v. Fidelity Trust Co., 1921, 191 Ind. 141, 131 N.E. 769. Neither is it reversible error to overrule a motion to separate a complaint into paragraphs. Baldwin Piano Co. v. Allen, 1918, 187 Ind. 315, 118 N.E. 305.
The appellant further charges error in overruling appellant's demurrer to each paragraph of the amended complaint. Under this assignment the contention is made that the complaint shows on its face that the appellee's deceased son was guilty of contributory negligence as a matter of law. While actions of this nature are in effect actions for injuries to property, yet when establishing the negligent conduct of the appellant involves issues of negligence and contributory negligence, the usual rules governing the determination of these issues apply as in personal injury cases. Thompson v. Town of Fort Branch, 1931, 204 Ind. 152, 178 N.E. 440, 82 A.L.R. 1413. In such cases the burden of establishing contributory negligence on the part of the appellee's son rested upon the appellant. Contributory negligence sufficient to preclude a recovery is generally a question of fact for the jury. Fishman v. Eads, 1929, 90 Ind.App. 137, 168 N.E. 495. The amended complaint contains no allegations of fact on which we can say that the appellee's decedent was guilty of contributory negligence as a matter of law. It is our opinion that the complaint is not subject to the objections urged.
Under the propositions advanced by the appellant in support of his twenty-first assignment of error the contention is made that the court erred in refusing the appellant a trial by a struck jury. This complaint was filed on the 22d day of October, 1937. On March 14, 1938, the parties hereto by their attorneys were present in court and this cause was assigned for trial on March 22, 1938. On March 15, 1938, the appellant filed his demand for a struck jury. On the 19th day of March, 1938, the clerk and the appellee's attorneys appeared in the clerk's office and, after striking from the list submitted, a venire was issued for said jurors to appear on the 22d day of March, 1938. This jury so selected was not called and on March 22d the cause was submitted to the regular panel. On the morning of the trial the appellant filed a written motion objecting to the regular panel and asking to have the same discharged, first, for the reason that the appellant was not notified in writing that the struck jury would be drawn on March 19, 1938, at 2 P. M. The appellant admitted in said motion that he had been informed orally on March 15, 1938, that said striking would take place on March 19, 1938, but contended that such oral notice was insufficient in law. The appellant further objected for the reason that the striking on March 19, 1938, was not five days previous to the trial and was therefore illegal and void. Evidence was heard on this motion and the court then overruled the motion to discharge the regular panel. This ruling is one of the reasons assigned in support of the motion for new trial.
On this particular question the record discloses that on application of the appellant, a change of venue had been taken from the judge and a special judge had been appointed. The special judge came to Gibson County on March 14, and there in the presence of the attorneys representing the parties in this action, set this cause for trial on...
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