Union Traction Co., of Indiana v. Lowe
| Decision Date | 24 June 1903 |
| Docket Number | 4,372 |
| Citation | 67 N.E. 1021,31 Ind.App. 336 |
| Parties | UNION TRACTION COMPANY OF INDIANA v. LOWE |
| Court | Indiana Appellate Court |
From Delaware Circuit Court; J. G. Leffler, Judge.
Action by George Lowe against the Union Traction Company of Indiana. From a judgment for plaintiff, defendant appeals.
Reversed.
J. A VanOsdol, W. A. Kittinger, A. W. Brady and Rollin Warner, for appellant.
N. N Spencer and Frank Ellis, for appellee.
--Appellee's complaint in this case was in two paragraphs, in both of which he seeks to recover damages for an alleged personal injury sustained by him while a passenger in one of appellant's cars in the city of Muncie.
The first paragraph of the complaint proceeds upon the theory that the injury complained of was caused by appellant's negligence. This paragraph of complaint states a cause of action, and appellant's demurrer thereto was properly overruled.
The second paragraph of complaint proceeds upon the theory that the alleged injury was wilfully inflicted. The averments of appellee's complaint by which he attempts to charge a wilful injury were as follows: "Plaintiff further avers that said starting of said car with said sudden and violent jerk, without notice or warning to plaintiff, was the proximate cause of all of plaintiff's said injuries, and that because of plaintiff's said attitude and condition plaintiff's said fall and injuries were the natural and necessary and probable and inevitable consequences of defendant's act of so starting said car without notice or warning to plaintiff, and that defendant had full knowledge of plaintiff's said attitude and condition, and with full knowledge of all the facts in this paragraph of complaint alleged, and without notice or warning to plaintiff intentionally, purposely, and wilfully so started said car, utterly regardless of the safety or peril of plaintiff, and with full knowledge of the fact that the natural and probable consequences of so starting said car, under the circumstances, would be the fall and injury of plaintiff." This paragraph of complaint is clearly insufficient. It falls far short, under the law as announced in the decided cases in this State, of stating a cause of action for a wilful injury. It seems to be the settled law of this State that a complaint which seeks redress for a wilful injury, involving, as it does, conduct which is quasi criminal, must aver...
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