Pittsburgh, Cincinnati, Chicago And St. Louis Railway Co. v. German Insurance Co.
| Decision Date | 31 March 1909 |
| Docket Number | 6,365 |
| Citation | 87 N.E. 995,44 Ind.App. 268 |
| Parties | PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. GERMAN INSURANCE COMPANY |
| Court | Indiana Appellate Court |
Rehearing denied July 2, 1909.
From Lake Circuit Court; Willis C. McMahan, Judge.
Action by the German Insurance Company of Freeport, Illinois against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.
Reversed.
G. E Ross, for appellant.
Herbert S. Barr, for appellee.
This was an action commenced by appellee against appellant, to recover damages on account of insurance it had paid to Love Brothers, on a policy of insurance covering a barn and its contents, which was burned by a fire that was negligently set by appellant to a large barn owned by John Wilson, and which spread from said barn to the barn of said Love Brothers. By the payment of said insurance, appellee became subrogated to the rights of Love Brothers, and brought suit in that capacity. Lake Erie, etc., R. Co. v. Hobbs (1907), 40 Ind.App. 511, 81 N.E. 90.
The complaint is in two paragraphs. Briefly stated, the first alleges negligence on the part of appellant in running and operating its locomotive in such a way as to emit large sparks and coals of fire, which fell upon the barn of Wilson and started the conflagration. The second charges negligence on the part of appellant in using a locomotive that was old, out of repair, in a defective condition, and not equipped with a properly constructed and adjusted spark-arrester, by reason of which large coals and sparks of fire were discharged upon said barn and caused the injury. To each paragraph of the complaint appellant filed a motion to make the same more specific as to the charges of negligence. The court overruled this motion, and the same is here presented as error. The charge of negligence in each paragraph of the complaint is very clearly made. It is also averred in each paragraph of the complaint that a more specific description of the acts of negligence cannot be given. Each paragraph was sufficiently specific, as it very clearly informed appellant of the charge it had to meet.
The allegations in a pleading, that the party complained of negligently committed the particular act, or negligently omitted to do a particular thing, which led to the injury for which redress is sought, furnishes the predicate for the proof of such incidental facts and circumstances as fairly tend to establish the negligence of the primary fact complained of. Chicago, etc., R. Co. v. Barnes (1891), 2 Ind.App. 213, 28 N.E. 328; Ohio, etc., R. Co. v. Wrape (1892), 4 Ind.App. 100, 30 N.E. 428; Ohio, etc., R. Co. v. Craycraft (1892), 5 Ind.App. 335, 32 N.E. 297; Cincinnati, etc., R. Co. v. Chester (1877), 57 Ind. 297; Chicago, etc., R. Co. v. Kreig (1899), 22 Ind.App. 393, 53 N.E. 1033.
To have compelled appellee to comply with the motion filed would have been placing upon it not only an unnecessary burden, but also, in the nature of things, an impossible one. The facts which appellant sought to elicit by its motion were facts that were peculiarly within its own knowledge, and of which it had better opportunity of informing itself than had appellee. The motion was properly overruled as to each paragraph of complaint.
Motion was also made to require appellee to separate into paragraphs, and number, the several causes of action alleged in each of said paragraphs of the complaint. Each of said paragraphs stated only one cause of action, and the motion was properly overruled. It is well established that different negligent acts may be averred in one paragraph, and that proof of any one is sufficient to sustain the action. New York, etc., R. Co. v. Callahan (1907), 40 Ind.App. 223, 81 N.E. 670, and cases cited.
Appellant also demurred to each paragraph of the complaint, which demurrers were overruled. Appellant has urged numerous deficiencies in said complaint, some of which are frivolous, and all of which are unsubstantial, and it would be unprofitable to enter into a discussion of the points presented, for the reason that each is well settled under our rules of pleading, as announced by numerous decisions. Pittsburgh, etc., R. Co. v. Wilson (1904), 161 Ind. 701, 66 N.E. 899.
Appellant filed an answer in two paragraphs, the first of which is characterized as a plea of nul tiel corporation, the second, a general denial. Appellee's demurrer to the first paragraph was sustained, and this is assigned as error. This paragraph of the answer denied that there was, at the time of the commencement of the action, any such corporation as the German Insurance Company, organized and authorized to do business under the laws of the State of Indiana. This is not a plea that appellee is not a corporation. In the first place it does not deny that appellee, in the name in which it sued--German Insurance Company of Freeport, Illinois--was organized and authorized to do business under the laws of the State of Indiana. It does not deny the corporate existence of the appellee. Conceding that it properly names appellee, the most that can be said for the plea is that it denies the right of appellee to do business in this State at the time of the commencement of the action. It does not deny it had such right when the policy was issued to Love Brothers. Neither does it show that said contract was made in this State. This falls far short of denying its right to prosecute an action sounding in tort in this State. In cases like this the insurance company may maintain its action, even though it has failed to comply with our laws in respect to being authorized to do business within our boundaries.
In the case of Phenix Ins. Co. v. Pennsylvania R Co. (1893), 134 Ind. 215, 20 L. R. A. 405, 33 N.E. 970, the court said of a similar case: ...
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