The Louisville, New Albany and Chicago Railway Company v. Kendall

• Decision Date: 16 February 1894
• Docket Number: 16,396
• Parties: The Louisville, New Albany and Chicago Railway Company v. Kendall
• Court: Indiana Supreme Court

36 N.E. 415

138 Ind. 313

The Louisville, New Albany and Chicago Railway Company v. Kendall

No. 16,396

Supreme Court of Indiana

February 16, 1894

Petition for a Rehearing Overruled June 5, 1894.

From the Washington Circuit Court.

Judgment affirmed.

E. C Field, W. S. Kinnan and J. B. Black, for appellant.

B. K Elliott, W. F. Elliott, J. Masterson, J. A. Zaring and M. B. Hottel, for appellee.

OPINION

Hackney, J.

The appellee sued the appellant for personal injuries, and with the general verdict in his favor for five thousand dollars, the jury returned answers to special interrogatories from which it appears that the general verdict was necessarily found upon the first of the two paragraphs of complaint. Upon the assignment of error the appellant questions the sufficiency of each of the paragraphs of complaint, but, as it thus appears that the recovery was upon the first paragraph, the appellant did not suffer from the ruling upon the second paragraph, and, in the absence of such finding the fact is presumed. Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261, and cases there cited.

We will confine our inquiry, therefore, to the first paragraph. It alleges that the appellee took passage upon the appellant's passenger train at the town of Salem, destined for, and with a proper ticket to, the town of Mitchell; "that upon the arrival of said train of defendant at defendant's depot, in the town of Salem, * * plaintiff as a passenger undertook to, and did, get on the platform of one of the cars of said train, to enter the same, but that without fault or neglect on plaintiff's part, on account of the carelessness and negligence of one of defendant's agents, whose name is to plaintiff unknown, he was, by such employe of defendant, pushed from the platform of said train just as the same was starting, and, without any fault or negligence on his part, fell between the cars of said train onto defendant's said railroad tracks, and was carelessly and negligently caught and run over by defendant's said train, and was mashed, bruised, and mangled; * * * that all of said injuries were caused by, and the direct result of, said carelessness and negligence of defendant in pushing plaintiff off its said train, as aforesaid, and carelessly and negligently running over him with its said train, as aforesaid, and wholly without the fault or negligence of plaintiff."

The appellant earnestly contends that this paragraph is deficient in failing to allege expressly, or by facts necessarily sustaining the inference, that the wrongful act was committed by the agent or servant in the course or within the scope of his employment.

It is not questioned that a tortious or negligent act resulting in injury, if done by an agent acting not within the course of his employment, is not the subject of recovery against the principal. Indeed, it is too well settled to admit of question that under such circumstances there can be no recovery. Jeffersonville R. R. Co. v. Rogers, 38 Ind. 116; Indianapolis, etc., R. W. Co. v. Anthony, 43 Ind. 183; Helfrich v. Williams, 84 Ind. 553; Wabash R. W. Co. v. Savage, 110 Ind. 156, 9 N.E. 85; Louisville, etc., R. W. Co. v. Wood, 113 Ind. 544, 14 N.E. 572; Shear. & Redf. Neg., section 63; Wood Master and Servant, section 305.

And it is by these authorities, and many others equally well settled, that the master is liable for a tortious or negligent act of a servant committed while performing his master's service, though not previously authorized nor subsequently ratified by the master, if an injury result therefrom to one to whom the master owes protection from such injury. Of this proposition there is no question by the parties, but the exact question here is, does the complaint make a case within this proposition? It is claimed by the appellant that the only substantive allegation of negligence in the complaint is, that one of the appellant's agents pushed the appellee from the car platform, and that, without indulging unwarranted presumptions in favor of the pleading, this is insufficient to show that the agent was, at the time, performing any service for the master, or that his service had any connection whatever with the management of the train or the car or the passengers of the appellant. On the other hand, the appellee insists that the complaint contains a direct allegation charging the negligence upon the appellant. It is "that all of said injuries were caused by, and were the direct result of, the said carelessness and negligence of defendant in pushing plaintiff off its train, as aforesaid, and in carelessly and negligently running over him with its train, as aforesaid, and wholly without the fault or negligence of plaintiff."

This allegation, the appellant insists, is not a direct averment, but is a mere recital, and, therefore, should be disregarded. To this point are cited Cummins v. City of Seymour, 79 Ind. 491; Wabash, etc., R. W. Co. v. Johnson, 96 Ind. 40.

These cases, and many others in this State, hold that material facts essential to the existence of a cause of action should be alleged directly and should not be left to be gathered by mere conjecture, and should not be stated by way of mere recital.

In Bliss on Code Pleading, section 318, it is said: "To state or aver that a thing is so or so is very different from speaking of being so or so, or whereas it is so or so. A recital is not a statement, but is introductory to a statement."

In Jackson School Tp. v. Farlow, 75 Ind. 118, a distinction between direct allegations and mere recitals is clearly made. There the suit was for the breach of a contract under which the plaintiff agreed to teach in one of the schools of the township and was not permitted to do so. He did not allege in his complaint that he had been licensed to teach, and because the contract was made a part of the complaint and it was therein stated that he was "a licensed teacher" it was insisted that the contract supplied the necessary allegation that he had obtained a license. It was held that the recital in the contract, though a part of the complaint, did not comply with the requirement that necessary facts should be pleaded by positive averment.

The following from that case will further illustrate what is meant by recitals in pleading as distinguished from direct averments: "The distinction is well illustrated in the case of Shafer v. Bear River, etc., Co., 4 Cal. 294, where it was held that the mere recital of an indebtedness in a mortgage would not so aid a declaration as to make it sufficient. In Hall v. Williams, 13 Minn. 260, the principle involved in the proposition stated is...