Tipton Light, Heat And Power Company v. Newcomer

• Decision Date: 14 December 1900
• Docket Number: 18,863
• Parties: Tipton Light, Heat and Power Company v. Newcomer
• Court: Indiana Supreme Court

58 N.E. 842

156 Ind. 348

Tipton Light, Heat and Power Company v. Newcomer

No. 18,863

Supreme Court of Indiana

December 14, 1900

Rehearing Denied March 13, 1901.

From the Miami Circuit Court.

Reversed.

W. R Oglebay and F. S. Oglebay, for appellant.

D Waugh, J. P. Kemp and J. N. Waugh, for appellee.

OPINION

Hadley, J.

Appellee had a verdict and judgment upon a complaint charging appellant with negligence, whereby appellee was injured by an explosion of natural gas. The amended complaint is in three paragraphs. In the first paragraph the negligence is charged as follows: "Plaintiff avers that on said 1st day of June, 1896, and for many months prior thereto, the defendant company had carelessly, negligently, and knowingly suffered and permitted and allowed its said high pressure line in close proximity to said large tile drain in said alley, and about 150 feet north of said out lot number twenty-two, to become defective, insufficient, and out of repair, so that the natural gas flowing therein escaped and flowed therefrom into the large tile drain in said alley, and through said large tile drain into said small tile drain leading therefrom, and through said small tile drain up into said coal bin of said dwelling-house where it accumulated and escaped into the south room of said cellar, without any fault or negligence upon the part of the plaintiff"; and in the second paragraph as follows: "Plaintiff avers that on said 1st day of June, 1896, and for many months prior thereto, the defendant company had carelessly, negligently, and knowingly suffered, permitted, and allowed its said high pressure line in close proximity to said large tile drain in said alley, and at about 150 feet north of said out lot number twenty-two to become defective, insufficient, and out of repair, so that the natural gas flowing therein escaped and flowed therefrom into the said large tile drain", etc. It is subsequently charged in the second paragraph, and also charged in the third paragraph, that appellant's superintendent, while inspecting for escaping gas in appellee's cellar, "carelessly and negligently struck, or lighted, a match" which exploded the gas, whereby she was injured. At the proper time appellant moved the court to require the appellee to make her amended complaint more specific, which motion, omitting caption, is in these words: "Comes now the defendant and moves the court as follows: That the plaintiff be required to make her amended complaint more specific, in this: (1) That the first paragraph of amended complaint set out and charge in what way and manner the high pressure line of the defendant was insufficient and how out of repair; (2) that the second paragraph of the amended complaint describe and set out specifically in what way and manner the said high pressure line was defective and insufficient, and how, where, and in what manner and way out of repair", which motion was overruled, and to which ruling appellant excepted, and has brought said motion and exception into the record by a proper bill of exceptions. The error first assigned is in the following words: "The Miami Circuit Court erred in overruling the appellant's motion to require the appellee to make her amended complaint more specific."

It is first affirmed by appellee that this assignment of error is insufficient to bring before the court for review the motion to make more specific, since the motion shows upon its face that it is separately and severally addressed to each the first and second paragraphs of the complaint, whereas the assignment of error is addressed to the complaint as an entirety and is therefore joint. It is well settled that in the assignment of error in this court the specification of error must be stated with such clearness and certainty as to leave no reasonable doubt of the question presented for review. But this does not mean that all challenged rulings of the trial court shall be separately assigned as error in this court. For example, in a motion for a new trial "all errors of law occurring at the trial and excepted to at the time" may not be separately specified in this court, but must be separately, specifically, and clearly embodied in the motion. Thus all the alleged errors in the trial are collectively brought before the court for further consideration and such correction as may be required by the law, and, if the motion is overruled, the ruling upon the motion constitutes but a single judicial act, and an assignment of error upon the overruling of the motion brings before this court for decision all the questioned rulings separately and sufficiently stated in the motion. Elliott's App. Proc., § 347; Ewbank's Manual, § 129; Grant v. Westfall, 57 Ind. 121, 125; Bolin v. Simmons, 81 Ind. 92. Likewise motions addressed to the pleadings and the formation of issues and which can not be regarded as forming parts of the trial, such as motions to separate causes of action, to strike out parts of pleadings, to make more specific, and the like, and which as a single medium challenges separate parts of the same pleading, specially set forth, when such a motion is ruled upon as an entirety, and upon each specification in the same way, there can exist no reason why an assignment of error based upon the action of the court upon the motion as a whole, and as a single judicial act, is not sufficient to bring before this court all the questions clearly presented by the motion to the trial court. When such a motion specifies the grounds upon which it is founded "there is neither necessity nor propriety in repeating them on appeal." Elliott's App. Proc. § 336. The averments in each the first and second paragraphs of the complaint, which appellant sought to have made more specific, were clearly stated in the motion, and the assignment of error is sufficient to call for a decision of both specifications of the motion.

It is a familiar rule of pleading that a plaintiff in stating his cause of action must set forth the facts upon which he asserts his claim with such particularity as will enable the defendant to prepare and present the defense. Under the general rule it has been...