Wabash R. Co. v. McNown

• Decision Date: 10 January 1913
• Docket Number: No. 7,638.,7,638.
• Citation: 53 Ind.App. 116,100 N.E. 383
• Parties: WABASH R. CO. v. McNOWN.
• Court: Indiana Appellate Court

53 Ind.App. 116

100 N.E. 383

WABASH R. CO.

v.McNOWN.

No. 7,638.

Appellate Court of Indiana, Division No. 1.

Jan. 10, 1913.

Motion for rehearing. Motion overruled.

For former opinion, see 99 N. E. 126.

Edwin P. Hammond, William V. Stuart, Dan W. Simms, and Allison E. Stuart, all of Lafayette, for appellant. Lesh & Lesh, of Huntington, for appellee.

HOTTEL, J.

Appellant has filed a petition for rehearing in this case, and its counsel in their brief in support thereof press upon us with such earnestness and sincerity their reasons for believing that the court has committed error in its original opinion that we are lead to give additional consideration to some of the questions determined therein. If this were an action by the hack driver, or if his negligence could be charged against appellee's deceased, or if, under the averments of the complaint or the answers to interrogatories, the negligence of such driver could be said to be the sole proximate cause of the death of the deceased, we would be persuaded that appellant is right in its contention that a rehearing should be granted.

[1] In our consideration of the complaint, we are not unmindful of the rule so earnestly urged by appellant in its original brief, and now again emphasized, which required us, in case of doubt upon the pleading, to construe the same most strongly against the pleader, and to indulge against its validity all reasonable inferences not excluded by positive and direct averment. Shenk v. Stahl, 35 Ind. App. 493-498, 74 N. E. 538;Wabash R. Co. v. Beedle, 173 Ind. 437, 445, 90 N. E. 760;Pond v. Sweetser, 85 Ind. 144;State v. Casteel, 110 Ind. 174-187, 11 N. E. 219;Hays v. Hays, 40 Ind. App. 471-473, 82 N. E. 90, and authorities there cited. It should be remarked, however, in this connection that this rule, when applied to a complaint, is applicable to only such averments as are necessary to state the cause of action. When all the necessary and essential averments of a cause of action are directly and positively stated, no mere inferences of a defense to such action suggested by any averments contained in such complaint will overcome or defeat the cause of action so stated, and render the complaint subject to demurrer. Cole v. Searfoss, 97 N. E. 345;Cleveland, etc., Ry. Co. v. Clark, 97 N. E. 822.

[2] In this case it is urged that the complaint nowhere charges that the deceased or the driver of the hack was without fault, or that the deceased or the hackman did not...