Vandalia R. Co. v. Clem

• Decision Date: 14 December 1911
• Docket Number: No. 7,362.,7,362.
• Citation: 96 N.E. 789,49 Ind.App. 94
• Parties: VANDALIA R. CO. v. CLEM.
• Court: Indiana Appellate Court

49 Ind.App. 94

96 N.E. 789

VANDALIA R. CO.

v.CLEM.

No. 7,362.

Appellate Court of Indiana, Division No. 2.

Dec. 14, 1911.

Appeal from Circuit Court, Owen County; J. W. Williams, Judge.

Action by Charles G. Clem against the Vandalia Railroad Company. From a judgment for plaintiff and an order overruling a motion for a new trial, defendant appeals. Reversed, and new trial granted.

Samuel O. Pickens and Owen Pickens, for appellant. Willis Hickan, for appellee.

ADAMS, J.

Action by the appellee against the appellant for damages occasioned by the killing of his team of horses and the destruction of his wagon and harness, by one of appellant's freight trains, in its yards at the town of Gosport, Ind. The complaint sets out the surroundings, situation, and conditions of the railroad yards, the circumstances attending the entry of the team upon appellant's property, and the resulting injury, and concludes as follows: “That within a few minutes after the plaintiff's said team had so entered upon defendant's said railroad track at said place, and at about 5:30 o'clock in the evening, and while it was too dark to see said team and wagon, without light, at a sufficient distance ahead of said engine as it approached them from the west to stop said train, at the rate of speed at which it was then running-30 miles per hour-and prevent its running over said team and wagon, said defendant, without a light, and without a lookout on said engine, and without said yards being in any way lighted, recklessly, wantonly, and willfully, and without seeing or endeavoring to see said wagon and team so confined upon its tracks and switchyard, and without any care or regard for the lives or safety of persons or teams upon said yards or tracks, recklessly and willfully ran said train on, against, and over said team, wagon, and harness, while it was so confined upon said defendant's main track, in or adjoining to its switchyards, and thereby willfully and wantonly crushed and killed both of plaintiff's said horses, and destroyed said wagon and harness, to his damage in the sum of $350, all of which occurred through the willfulness and recklessness of said defendant in so operating its said train, without any fault or negligence whatever on the part of this plaintiff.” The appellant demurred to the complaint for want of sufficient facts, which demurrer was overruled, and the cause was put at issue by an answer in denial. Trial by jury, and finding for the appellee for $375. Appellant's motion for a new trial was overruled, and judgment rendered upon the verdict.

The errors relied upon for reversal are: (1) Error in overruling the demurrer to the complaint; (2) error in overruling the motion for a new trial. Under the last assignment, the only error complained of is the refusal of the court to give a peremptory instruction, directing a verdict for the appellant.

The action is clearly predicated upon willfulness, and not upon negligence. If the appellee's complaint does not state a cause of action for the willful killing of his team and the destruction of his property, then the demurrer should have been sustained.

[1] It will be noted that there is no charge in the complaint that the injurious act was purposely and intentionally committed, with intent willfully and purposely to inflict the injury complained of. Such an averment, or substantially such an averment, has been held necessary to constitute a good complaint for willful injury. Pittsburgh, etc., R. Co. v. Ferrell, 39 Ind. App. 515, 78 N. E. 988, 80 N. E. 425;Union Traction Co. v. Lowe, 31 Ind. App. 336, 67 N. E. 1021;Gregory v. Cleveland, etc., R. Co., 112 Ind. 385, 14 N. E. 228;Kalen v. Terre Haute, etc., R. Co., 18 Ind. App. 202, 47 N. E. 694, 63 Am. St. Rep. 343;Walker v. Wehking, 29 Ind. App. 62, 63 N. E. 128;Indianapolis St. R. Co. v. Taylor, 158 Ind. 274, 63 N. E. 456.

In the case of Union Traction Co. v. Lowe, supra, this court said: “It seems to be the settled law of this state that a complaint which seeks redress for a willful injury, involving, as it does, conduct which is quasi criminal, must aver that the injurious act was purposely and intentionally committed, with the intent willfully and purposely to inflict the injury complained of. *** The complaint in an action of this character, quasi criminal in its nature, and involving, as it does, an intent to inflict the injury complained of, should be strictly construed by the rules of pleading here announced.”

[2][3] Without questioning this rule of construction, we do not think the words “purposely and intentionally committed with intent willfully and purposely to inflict the injury complained of” constitute a necessary form for charging willfulness in a complaint, but that the purpose and intent to inflict the injury may be charged in other words. In the complaint before us, it is averred that the defendant “recklessly and willfully ran said train against and over said team.” If the train was willfully run over the team, it implies that the injury was committed not only with purpose and intent, but with knowledge as well. Such is the meaning of “willful.” 8 Words and Phrases, p. 7468. This charge, standing alone, we think...