Town of Frankton v. Closser

• Decision Date: 11 April 1939
• Docket Number: 16101.
• Parties: TOWN OF FRANKTON v. CLOSSER.
• Court: Indiana Appellate Court

20 N.E.2d 216

107 Ind.App. 193

TOWN OF FRANKTON v. CLOSSER.

No. 16101.

Appellate Court of Indiana, in Banc.

April 11, 1939

Appeal from Madison Circuit Court; Charles E. Smith, Judge.

William L. Peck, of Anderson, for appellant.

Arthur C. Call and C. B. Salyer, both of Anderson, for appellee.

STEVENSON Presiding Judge.

The appellee filed suit against the appellant to recover damages for alleged negligence in permitting a wire which had come in contact with a high voltage electrical light wire owned operated, and maintained by the appellant as a part of its lighting system to lie in a public street of the town of Frankton.

The first paragraph of complaint was for damages for personal injuries sustained by the appellee when his cow which he was leading by a chain came in contact with the wire in the street and was killed, and the appellee was shocked and injured.

The second paragraph of complaint was for damages for the loss of the cow. After various motions were addressed to this complaint and amendments made, the cause was submitted to a jury for trial on a second amended complaint to which an answer had been filed in general denial. Upon a trial of the case, verdict and judgment for the appellee was rendered in the sum of $2100. A motion for new trial was filed and overruled and this appeal has been perfected.

The errors relied upon for reversal are: first, that the court erred in overruling appellant's motion to require the appellee's second amended complaint to be made more specific; second, that the court below erred in overruling appellant's demurrer to the first and second paragraphs of appellee's second amended complaint; third, that the court below erred in overruling appellant's motion for new trial.

With respect to the first error assigned, attention is directed to the appellee's second amended complaint which after alleging generally that the Town of Frankton owned, operated and controlled its distribution system for electric current contained among others the following allegations: "That on or about the 13th of August, 1935, and at the time the Plaintiff received the injuries hereinafter set out, the electric wires above described were charged with a high voltage of electricity. That said electric light pole carrying said wires and electric current and located in Eighth Street, and said street at that time was being used as a public thoroughfare. That near the top of said pole was what was known as cross arms or bars used for the fastening of wires for the purpose of conveying the electric current. That Defendant was placing along and on said arms additional wires and permitted and allowed said wires to extend in a loose manner from the cross bar down along said pole to the ground and form a continuous coil of wire on the ground near the base of said pole, and allowing said wire to hang from the cross bar and swing, vibrate, touch and come in contact with the high voltage wires on said cross bar, thereby charging said wire and the coil of wire on the ground, which wire was continuous with a high voltage of electric current, and when so charged was extremely dangerous to any person coming in contact therewith, and which facts were well known to this defendant, and allowing said wire to lay in the street or public thoroughfare, without giving any signal or warning of said danger."

The objections made to the above paragraph in the motion to make more specific were that the appellee should be required to set out the facts upon which his conclusions were drawn and that he should clear up the ambiguities and inconsistencies in said paragraph. While it is true that the complaint in this case does not contain a recital of such facts as render it entirely free from criticism, we are of the opinion that the appellant was sufficiently advised by this complaint of the nature and character of the charges it would be required to meet. Especially is this true where all the matters mentioned in the complaint were peculiarly within the knowledge of the defendant. This court has repeatedly held that where the allegations in the complaint are sufficient to apprise the appellant of the negligent acts complained of, a motion to make such complaint more specific may be properly overruled. Indianapolis Power & Light Company v. Moore, 1936, 103 Ind.App. 521, 5 N.E.2d 118. And cases cited.

We have read the evidence offered in the trial of this case and it does not appear from the record that the appellant was in any way misled as to the issues presented, or that the failure to make the complaint more specific prevented the appellant from making any defense which it might have had to the cause of action. As has been stated by this court: "While the granting or refusing of such motions is not a matter wholly within the discretion of the nisi prius courts, it is nevertheless so far discretionary that a reversal would not follow, except in a case where it appeared that the rights of the party complaining may have suffered." Terre Haute, etc., Traction Co. v. McDermott, 1924, 82 Ind.App. 134, 138, 144 N.E. 620, 621.

We are of the opinion that the court committed no reversible error in overruling the motion to make the second amended complaint more specific.

The appellant's demurrer challenges the sufficiency of the complaint for substantially the same reasons contained in the motion to make the complaint more specific. In addition to this, however, the demurrer also charges that the complaint is insufficient for the reason that it does not allege that the electric current which injured the appellee came from a wire which supplied the appellant's customers with electrical energy. In support of this contention the appellant contends that if the electric current came from a wire which afforded energy for street lighting purposes only, then the city was engaged in a governmental function and as such was not liable for its torts. It is apparent from a reading of the complaint that the appellant was charged generally with negligence in permitting and allowing wires charged with electricity to lie in a public street thereby creating a dangerous condition in the street. The case was tried upon that theory and the court instructed the jury on that theory. It is our opinion therefore that it was not necessary for the appellee to allege in his complaint and prove as an essential element in his case in chief that the electrical energy with which the wire in the street was charged, came from a source which supplied only private customers of the municipally owned utility.

For this reason there was likewise no error in refusing appellant's tendered...