Scheiber v. United Tel. Co.

• Decision Date: 15 December 1899
• Citation: Scheiber v. United Tel. Co., 153 Ind. 609, 55 N. E. 742 (Ind. 1899)
• Parties: SCHEIBER v. UNITED TEL. CO.
• Court: Indiana Supreme Court

153 Ind. 609

55 N.E. 742

SCHEIBER

v.UNITED TEL. CO.

Supreme Court of Indiana.

Dec. 15, 1899.

Appeal from circuit court, Huntington county; C. W. Watkins, Judge.

Action by Peter Scheiber against the United Telephone Company. From a judgment for defendant on demurrer to the complaint, plaintiff appeals. Affirmed.

Spencer & Branyan, for appellant. Kenner & Lesh, for appellee.

BAKER, J.

Appellant filed a complaint in one paragraph to recover for personal injuries alleged to have been received through the agency of lightning conducted into appellant's storeroom over appellee's wires. Demurrer sustained. Exception by appellant. Afterwards, by leave of court, appellant filed a “second paragraph of complaint.” Demurrer sustained. Exception by appellant. Afterwards, by leave of court, appellant filed a “third paragraph of complaint.” Demurrer sustained. Exception by appellant. Upon appellant's refusal to plead further, the judgment was rendered from which this appeal was taken.

The so-called “second” and “third” paragraphs state the same cause of action upon which the first was based. The so-called “second” paragraph, at the time it was filed, constituted the only complaint that was then before the court in this action. The first complaint having gone out on demurrer, the second complaint was, in legal effect, an amended complaint, without regard to the manner in which it was entitled. Similarly, the alleged error in sustaining the demurrer to the so-called “second” paragraph was waived by pleading further. Hunter v. Pfeiffer, 108 Ind. 197, 9 N. E. 124;Jouchert v. Johnson, 108 Ind. 436, 9 N. E. 413;Hargrove v. John, 120 Ind. 285, 22 N. E. 132;Hormann v. Hartmetz, 128 Ind. 353, 27 N. E. 731. The third paragraph, down to the place where contributory negligence is negatived and the injury and damages are stated, alleges that defendant is a corporation engaged in the business of furnishing its patrons means of communication by telephone over wires which act as ready conductors of electricity in the form commonly called lightning; that prior to June 1, 1896, plaintiff had in his storeroom two telephones, placed there by two different companies that had separate plants and central offices; that each of the telephones had a ground wire; that the two companies consolidated, and removed one of the telephones; that, when the one telephone was removed, the wire that had connected it with its central office was carried forward, and connected with the remaining telephone, and the wire that had connected the remaining telephone with its central office was severed, the connection being then made with a different central office,-the one now used by defendant; that the company that made this change negligently left, at the place from which the one telephone was removed, the ground wire attached to the wall as it had been prior thereto; that the end that was formerly attached to the remaining telephone was drawn between the wall and the other wire that had been carried forward, and attached to the remaining telephone; that the end of the useless ground wire was left negligently to protrude from the insulation thereof, in a horizontal position at right angles with the wall, at the point where the splice of the wire had been made from the wire coming in from the outside, and communicating with the remaining telephone, which splice was permitted negligently to remain without insulation; that the defendant negligently permitted the splice, for a space of one inch, to remain without insulation, and the dead wire to remain...