Phillips v. Klepfer

• Decision Date: 29 May 1940
• Docket Number: 27411.
• Citation: 27 N.E.2d 340,217 Ind. 237
• Parties: PHILLIPS et al. v. KLEPFER.
• Court: Indiana Supreme Court

27 N.E.2d 340

217 Ind. 237

PHILLIPS et al. v. KLEPFER.

No. 27411.

Supreme Court of Indiana

May 29, 1940

Arthur T. Mayfield and Homer J. Sandusky, both of Indianapolis, for appellants.

S C. Bodner and Wm. B. Miller, both of Indianapolis, for appellee.

ROLL Chief Justice.

This was an action by appellee, Charlotte Klepfer, by her next friend, Forest Klepfer, to recover damages for personal injuries. The complaint was in one paragraph to which the appellants filed a demurrer. The demurrer was overruled and the case was tried by the court without a jury. There was a finding and a judgment for appellee and this appeal was perfected. The only error relied upon for reversal is the overruling of the demurrer to the complaint.

The complaint alleged that the appellants were the owners and operators of a certain carnival and were operating the same as a concession at the Indiana State Fair Grounds on September 10, 1938. Among the various entertaining devices operated by appellants was a certain instrument known as the 'Caterpillar.' Appellee visited the State Fair on said day, paid her regular admission fee, and also paid the fee charged by the defendants to part of the complaint reads as follows: part of the complaint reads as following 'That this plaintiff after paying and receiving her said ride on said caterpillar and after entering upon said tram runway which was nailed upon said side boards and over which sticks and pieces of wood were nailed on said flat surface of said tram runway, this plaintiff's foot and heel caught on one of such nailed sticks and pieces of wood throwing her down upon the ground and against the side of said tram runway'.

The plaintiff then describes the injuries suffered as a result of her fall. Then the plaintiff uses the following language 'Plaintiff further says that for reason of said defendant negligence as above set out and with out plaintiff's fault she was confined to her bed for a week etc.'

The demurrer challenges the sufficiency of the facts on several grounds. One ground for demurrer was that the complaint did not allege any negligent conduct on the part of the defendants. It is stated in the complaint that the defendants had constructed a tram runway as a means of ingress and egress to the Caterpillar, and that they had nailed sticks and pieces of wood to the flat surface of said walk way. The complaint in no way charges that the defendants were negligent in the manner in which the sticks were nailed to the runway, nor does she describe the manner in which this was done. She does not describe or give the dimensions of the sticks or pieces of wood used. The only facts alleged were that pieces of wood and sticks were nailed to the runway; that the heel of her shoe caught on one of said pieces of wood and she fell, causing her injuries. There is no general charge of negligence and no facts pleaded from which the court could determine whether or not there was negligence in the manner in which the work was done or negligence in the kind of material used.

In the case of Cobe, Receiver, v. Malloy, 1909, 44 Ind.App. 8, 88 N.E. 620, 622, it is stated: 'It is a rule of pleading in this state that negligence may be pleaded in general terms. Such was the rule at common law, and our Code has not changed it. Another rule for pleading negligence permits the pleader to directly allege facts showing a legal duty and its breach, followed by such facts as will certainly inform the court that the act done, or omitted to be done, was committed or omitted in the absence of due care. Louisville, etc., R. Co. v. Hicks [1894], 11 Ind.App. 588, 592, 37 N.E. 43, 39 N.E. 767. In Cleveland, etc., R. Co. v. Perkins [1908, 171 Ind. 307], 86 N.E. 405, it is said: 'A well-settled rule of pleading requires that facts material and necessary to constitute the cause of action declared upon be directly averred, and that no essential element be shown by way of recital or be left to inference. Only inferences necessarily arising from facts alleged will be indulged in determining the sufficiency of a pleading when tested by demurrer.''

The following excerpt from the above case is applicable to the facts in this case: 'In the complaint before us there is not a single act done or act omitted to be done by appellant characterized as having been negligently done or negligently omitted to be done, nor do the facts alleged demand the conclusion that appellant was negligent in starting the car without first ringing the bell or sounding the gong. * * *'

In Pennsylvania Co. v. Marion, 1885, 104 Ind. 239, 3 N.E. 874, 875, it is said:

'In all common-law actions the basis of which is the negligence of the defendant, negligence or its equivalent must be directly averred, or such facts must be stated as that a prima facie presumption of negligence arises.

'It must appear from the complaint, either by direct averment, or from the statement of such facts as to a certainty raise the presumption, that the injury was the result of the defendant's negligence, or that it was purposely committed.'

This court in Cleveland, etc., R. Co. v. Perkins, 1908 171 Ind. 307, 313, 86 N.E. 405, 407, used this language: 'It will be observed, first, that no act or omission of appellant's is characterized as negligent, and that word appears only in the disconnected and isolated conclusion toward the end of the pleading, 'that the said injuries to plaintiff wholly resulted from the negligence and want of care of the defendant and the breach of its duty toward him.' The principle has been frequently announced and enforced in common-law actions founded upon negligence that the negligence relied upon must be charged in terms, or facts must be averred sufficient to compel the...