Premier Motor Mfg. Co. v. Tilford, No. 8938.

• Docket Nº: No. 8938.
• Citation: 111 N.E. 645, 61 Ind.App. 164
• Case Date: February 24, 1916
• Court: Court of Appeals of Indiana

61 Ind.App. 164
111 N.E. 645

PREMIER MOTOR MFG. CO.
v.
TILFORD.

No. 8938.

Appellate Court of Indiana, Division No. 1.

Feb. 24, 1916.

Appeal from Superior Court, Marion County; Pliny W. Bartholomew, Judge.

Action by Mary Tilford against the Premier Motor Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed, with instructions to sustain motions to make complaint more specific and for new trial.

[111 N.E. 646]

Elam, Fesler & Elam, of Indianapolis, for appellant. Rucker & Rocap, of Indianapolis, for appellee.

HOTTEL, J.

This is an appeal from a judgment of $1,000 recovered by appellee in a suit brought by her against appellant for personal injuries alleged to have resulted from a collision between one of appellant's automobiles and a buggy in which appellee was riding.

The issues of fact were tendered by a complaint in one paragraph and a general denial. The averments of the complaint necessary to an understanding of the questions presented by the appeal are, in substance, as follows: The appellant is a corporation engaged in the manufacture of automobiles in the city of Indianapolis. On August 12, 1911, the time of the collision complained of, appellant had in its employ the driver of the automobile who was at said time the agent of appellant, acting “under the scope of his employment.” The automobile was being driven by such agent south over Central avenue, near its crossing with Fifty-Sixth street, in the city of Indianapolis, “at the negligent and careless rate of speed of 50 miles an hour, more or less,” and said agent “negligently and carelessly caused said automobile to collide with and strike this plaintiff's vehicle in which she was riding.” The collision occurred after sundown, about 8 o'clock in the evening, and it was dark.

Appellee (we quote) “was proceeding in a northerly direction upon said public thoroughfare and upon the right-hand side thereof near said intersection of said Fifty-Sixth street. Said defendant was propelling its said automobile which struck this plaintiff upon and over said public thoroughfare in a southerly direction without having lighted lights upon said automobile, and without having a warning signal attached to said automobile, and negligently and carelessly collided with this plaintiff and struck this plaintiff with said automobile at said time; *** that said defendant at such time was operating said automobile at said negligent rate of speed and without said lighted lights, and negligently and carelessly ran said automobile upon, against, and over said plaintiff from said northerly direction without giving any warning to this plaintiff of the approach of said automobile at a time when plaintiff was unconscious and unaware of the approach towards her of said automobile, and at said time plaintiff was in full view of said defendant; that defendant at such time negligently and carelessly failed to warn plaintiff of his approach towards her and negligently and carelessly failed and omitted to get said automobile under control,” etc.

Prayer for $25,000 damages.

Appellant filed a motion to make the complaint more specific by stating what the driver of the automobile was doing for it when the collision occurred and the facts

[111 N.E. 647]

upon which appellee based the conclusion stated in the complaint that at said time such driver was the agent of appellant acting within the scope of his authority. This motion was overruled. The ruling on this motion and appellant's motion for new trial are relied on for reversal.

[1] Appellant insists, in effect, that since the passage of the act approved March 15, 1913 (Acts 1913, p. 850), the court is required to consider and give the pleader the benefit of all the averments of his complaint, though made by way of conclusion; that, as the only remedy against such practice, such act contains a proviso authorizing a motion to require the pleader to state the facts on which his conclusion is based; that by reason of such act and the proviso therein, it is now the imperative duty of the trial court to sustain such a motion when the averments of the pleading to which it is addressed are such as to make it proper and appropriate; and that the overruling of such a motion under such circumstances constitutes an error, which, when properly presented on appeal, will necessitate a...