Toledo, St. L. & W. R. Co. v. Beery

Decision Date03 November 1903
Citation31 Ind.App. 556,68 N.E. 702
PartiesTOLEDO, ST. L. & W. R. CO. v. BEERY et al.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Allen County; E. O'Rourke, Judge.

Action by Daniel W. Beery and another against the Toledo, St. Louis & Western Railroad Company. From a judgment overruling its demurrer to the complaint, defendant appeals. Reversed.

Guenther & Clark, for appellant. Shaffer Peterson and W. & E. Leonard, for appellee.

ROBINSON, C. J.

Suit by appellees for damages for injury to a car load of horses. A demurrer to the complaint “for the reason that said complaint does not state a cause of action” was overruled. This ruling is the first error assigned. It is suggested by counsel for appellee that the demurrer is not in form as the statute requires. But we think it sufficient to question the complaint under the fifth statutory cause for demurrer. The form used could not reasonably be said to come within any of the other statutory causes for demurrer. Demurrers have been held sufficient in form where a demurrer to several paragraphs of answer was on the ground that neither paragraph “states facts sufficient” (Ross v. Maeefee, 125 Ind. 432, 25 N. E. 545); and to a complaint that it “does not state facts sufficient” (Petty v. Board, etc., 70 Ind. 290); and that the complaint “does not state facts enough to entitle the plaintiff to relief” (Pace v. Oppenheim, 12 Ind. 533); and that the complaint “does not contain and set forth sufficient facts to enable the plaintiffs to sustain said action” (Stanley v. Peeples, 13 Ind. 232). Demurrers on the ground that the complaint is “not good and sufficient in law” (Porter v. Wilson, 35 Ind. 348), and that the complaint “does not state facts sufficient to constitute a complaint” (Pine Civil Tp. v. Huber Mfg. Co., 83 Ind. 121), and that “the petition does not state facts sufficient to constitute a good and sufficient petition” (Grubbs v. King, 117 Ind. 243, 20 N. E. 142), were held insufficient in form to present any question. The statute requires that the complaint shall contain “a statement of the facts constituting the cause of action.” The cause of action between the parties consists of a statement of the facts, and when the demurrer says that the complaint does not state a cause of action the necessary implication is, under this statutory designation of what constitutes the cause of action, that the complaint does not state sufficient facts. The complaint avers that on July 24, 1901, appellees shipped 30 horses over appellant's road, with directions to appellant to deliver to themselves at Russiaville, a town on appellant's road; that the shipment was made in time so that the horses could be delivered at such station before the morning of July 25, 1901, at which date appellees had advertised a sale of the horses; that appellant accepted the horses, which were then in good condition, the freight charges having been paid in advance, and placed the car in one of its freight trains, which reached Russiaville about 11 o'clock of the night of July 24, 1901; that at that time appellees had at the place an experienced representative who understood the business of unloading horses from cars into stockyards, at which place appellant had a stockyard with a chute made for the purpose of receiving stock from the cars and transferring them to the stockyards; that it was appellant's duty to place the car at and in connection with the chute; that a representative of appellees at the arrival of the train requested appellant's employés in charge of the train to properly set the car at the chute so that the same might be unloaded; that this the employés refused to do, but set off the car among a large number of other freight cars on a side track away from the stock yards and away from the chute, and in such condition that it was impossible for appellees to unload, leaving the car and horses so situated until about the hour of 10 o'clock of the following day, July 25, 1901, at which time appellant sent another engine, and placed the car at the chute, and unloaded them from the car; that “during the time the said car load of horses were in the defendant's charge, and while standing on her side track at Russiaville, they became and were injured to such an extent that when they were unloaded from said car by the defendant two shortly thereafter died, others were crippled, maimed, and bruised to such an extent that they were worthless, so much so that the entire car load were rendered useless and worthless to plaintiffs, and when they were requested by defendant's agents and employés to receive said horses they refused them, and left them in the possession of the defendant company; that at the time this defendant received said car load of horses for shipment they were reasonably worth forty dollars per head, making a total value of twelve hundred dollars; that plaintiffs requested the...

To continue reading

Request your trial
3 cases
  • Chicago & Western Indiana Railroad Company v. Marshall
    • United States
    • Indiana Appellate Court
    • 2 Noviembre 1905
    ... ... v. Mikesell (1899), 23 ... Ind.App. 395, 55 N.E. 488; South Chicago City R. Co ... v. Moltrum (1901), 26 Ind.App. 550, 60 N.E. 361; ... Toledo, etc., R. Co. v. Beery (1903), 31 ... Ind.App. 556, 68 N.E. 702; City of Hammond v ... Winslow (1904), 33 Ind.App. 92, 70 N.E. 819 ... ...
  • Toledo, St. Louis & Western Railroad Co. v. Beery
    • United States
    • Indiana Appellate Court
    • 3 Noviembre 1903
  • Chicago & W.I.R. Co. v. Marshall
    • United States
    • Indiana Appellate Court
    • 2 Noviembre 1905
    ...Mikesell, 23 Ind. App. 395, 55 N. E. 488;South Chicago, etc., R. Co. v. Moltrum, 26 Ind. App. 550, 60 N. E. 361;Toledo, etc., R. Co. v. Beery, 31 Ind. App. 556, 68 N. E. 702;City of Hammond v. Winslow, 33 Ind. App. 92, 70 N. E. 819. Judgment against the appellants reversed, and cause remand......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT