Wabash R. Co. v. Beedle

Citation88 N.E. 535
Decision Date29 May 1909
Docket NumberNo. 6,344.,6,344.
CourtCourt of Appeals of Indiana

On rehearing. Petition overruled.

For former opinion, see 87 N. E. 690.


Appellant's petition for a rehearing has been supported by an elaborate brief. Two propositions contained in the opinion are that the complaint was sufficient to enable a person of common understanding to know what was intended, and that a defect therein, in failing to charge that decadent did not know the switch was open, was cured by answers to interrogatories upon that subject. Appellant asserts in its brief that “a bad paragraph of complaint, to which a demurrer has been overruled, cannot be cured by special findings of the jury, and can be rendered harmless only where the special findings show that the general verdict was rendered upon a good paragraph of complaint.”

The Code, after providing that there shall be but one form of action, and that it shall be begun by filing a complaint, further provides that: “The pleadings are formal allegations by the parties of their respective claims and defenses, for the judgment of the court.” Section 340, Burns' Ann. St. 1908; section 338, Burns' Ann. St. 1901; section 335, Rev. St. 1881. And that: “The first pleading on the part of the plaintiff is the complaint. The complaint shall contain: (1) The title of the cause specifying the name of the court and county in which the action is brought, and the names of the parties to the action, plaintiff and defendant. (2) A statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended. (3) Where the complaint contains more than one cause of action, each shall be distinctly stated in a separate paragraph, and numbered. (4) A demand of the relief to which the plaintiff may suppose himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.” Section 343, Burns' Ann. St. 1908; section 341, Burns' Ann. St. 1901; section 338, Rev. St. 1881. That portion of the section which is italicized in the foregoing copy is the law of the land. It has not been repealed. No court has power to repeal it, and no court has presumed to declare it ineffective. It sometimes happens that statutes are emasculated by construction. There is no room for the construction of this one. It does not admit of construction. It is the law of the land, binding upon this court and upon the Supreme Court and upon every other court. The duty devolved upon the courts is to apply it. This will be well or illy done according to the quality of those who do it; but, however that duty may be met, the law remains unchanged. The duty to apply it according to its spirit and its letter still persists, and he who states his cause of action, “in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended,” has a good complaint. The test fixed by the statute has been applied by courts of appeal in the following among other cases: Baltimore, etc., R. Co. v. Trennepohl (Ind. App. 1909) 87 N. E. 1060, 1061;Huntington Fuel Co. v. McIlvaine, 41 Ind. App. 328, 331, 82 N. E. 1001;Wabash R. Co. v. Ferris, 6 Ind. App. 30, 31, 32 N. E. 112;City of Huntington v. Stuver, 41 Ind. App. 171, 173, 83 N. E. 518;Ohio & Miss. R. Co. v. Heaton, 137 Ind. 1, 35 N. E. 687;Pittsburgh, etc., R. Co. v. Simons, 168 Ind. 333, 79 N. E. 911;Island Coal Co. v. Clemmitt, 19 Ind. App. 21, 49 N. E. 38;Lincoln v. Ragsdale, 7 Ind. App. 354, 31 N. E. 581. It is to be observed that the test of the sufficiency of the facts stated is not the judgment of an extraordinary man nor of an idiot, but of a “person of common understanding.” It follows that the logic taught by the sophists can never properly be the test of the sufficiency of a complaint. “Recondite discussions of efficient cause, plurality of causes, and kindred topics, are for the metaphysician and the speculative philosopher, not the practical lawyer or judge.” Louisville, etc., R. Co. v. Nitsche, 126 Ind. 229, 236, 26 N. E. 51, 9 L. R. A. 750, 22 Am. St. Rep. 582;Chicago, etc., R. Co. v. Martin, 31 Ind. App. 308, 316, 65 N. E. 591; Willey v. Inhabitants of Belfast, 61 Me. 569, 575. The statutory standard has been many times overlooked, evaded, or ignored. The reported cases in which this has been done are of no consequence. They do not repeal or change the legislative declaration and must stand as monuments of error in the judicial cemetery. There is no room for the construction of the statute, and the manner in which the pleading shall be construed is again fixed by law: “In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed; with a view to substantial justice between the parties; but when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made more definite and certain by amendment.” Section 385, Burns' Ann. St. 1908; section 379, Burns' Ann. St. 1901; section 376, Rev. St. 1881. The sole requisite is that the precise nature of the charge be apparent-apparent to a person of ordinary understanding. The appellant very well knew, as the record affirmatively shows, what charge it was called upon to meet. There is but one legal rule by which to construe the averments of this or any other complaint. It is the rule of the statute, and deviations from it whenever made do not and cannot change, modify, or repeal that established law. The plaintiff's complaint, judged by the standard of the law, was entirely sufficient. The defendant could not fail to understand from it the claim made and the basis thereof, and for that reason there is no error in overruling a demurrer to it.

Following the line of the decision, however, and assuming that the failure to specifically aver that decedent did not know that the switch was open rendered the pleading technically defective, it remains to determine the proposition stated by appellant to the effect that error in overruling a demurrer to a complaint cannot be cured by answers to interrogatories. Preliminary to this inquiry it may be instructive to recur to the statute. In the very act under which the Supreme Court was created, and by the terms of which its powers and the powers of this court very largely are conferred, it is expressly stipulated that: “No judgment shall be stayed or reversed, in the whole or in part, by the Supreme Court, for any defect in form, variance or imperfections contained in the record, pleadings, process, entries, returns or other proceedings therein, which by law might be amended by the court below, but such defects shall be deemed to be amended in the Supreme Court; nor shall any judgment be stayed or reversed, in whole or in part, where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below.” Section 700, Burns' Ann. St. 1908; section 670, Burns' Ann. St. 1901; section 658, Rev. St. 1881. It is thus made to appear that appeals are followed for the purpose of getting justice, and not for the purpose of getting away from justice. It is a familiar principle that one who takes a benefit by the terms of a written instrument takes subject to the conditions attached, from which he cannot escape. The conditions that no judgment shall be reversed for a defect in pleading which might have been amended in the court below nor when it shall appear that the merits of the cause have been fairly tried are mandatory. The conditions are annexed to the grant of power and have been often followed, as they should always be followed. Richardson v. Stephenson, 38 Ind. App. 339, 78 N. E. 256;Oil Well Supply Co. v. Priddy, 41 Ind. App. 200, 83 N. E. 623;Robison v. Wolf, 27 Ind. App. 683, 62 N. E. 74;Cummings v. Griton, 19 Ind. App. 248, 49 N. E. 360;Clark v. Trueblood, 16 Ind. App. 98, 44 N. E. 679;Johnson v. McNabb, 7 Ind. App. 393, 34 N. E. 667;Steinke v. Bentley, 6 Ind. App. 663, 34 N. E. 97;Baltimore, etc., R. Co. v. Slaughter, 167 Ind. 330, 79 N. E. 186, 7 L. R. A. (N. S.) 597, 119 Am. St. Rep. 503;M. S. Huey Co. v. Johnston, 164 Ind. 489, 73 N. E. 996;Hartwell v. Peck, 163 Ind. 357, 71 N. E. 958;Consumers' Paper Co. v. Eyer, 160 Ind. 424, 66 N. E. 994;Latshaw v. State, 156 Ind. 194, 59 N. E. 471;Praigg v. Western Pav. & Supp. Co., 143 Ind. 358, 42 N. E. 750;Kohli v. Hall, 141 Ind. 411, 40 N. E. 1060;Evansville, etc., R. Co. v. Maddux, 134 Ind. 571, 33 N. E. 345, 34 N. E. 511;Reddick v. Keesling, 129 Ind. 128, 28 N. E. 316;Overton v. Rogers, 99 Ind. 595;Bristol Hydraulic Co. v. Boyer, 67 Ind. 236;Farley v. Eller, 29 Ind. 322.

The trial court is given the most absolute control over the pleadings. Section 405, Burns' Ann. St. 1908 (section 399, Burns' Ann. St. 1901; section 396, Rev. St. 1881), is as follows: “The court may, at any time, in its discretion, and upon such terms as may be deemed proper for the furtherance of justice, direct the name of the party to be added or struck out; a mistake in name, description, or legal effect, or any other respect, to be corrected; any material allegation to be inserted, struck out or modified- to conform the pleadings to the facts proved, when the amendment does not substantially change the claim or defense. The court may also, in its discretion, allow a party to file his pleadings after the time limited therefor; and shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any proceeding, on complaint or motion filed within two years.” Section 407, Burns' Ann. St. 1908 (section 401, Burns' Ann. St. 1901; section 398, Rev. St. 1881), provides: “The court must, in...

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3 cases
  • Ziehm v. Pittsburgh, C., C. & St. L. Ry. Co., 6,659.
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Junio 1909
    ...10 Ind. App. 474, 37 N. E. 187, 38 N. E. 56;McCoy v. Board, etc., 31 Ind. App. 331, 67 N. E. 1007;Wabash Ry. Co. v. Beedle (Ind. App.) 88 N. E. 535;Pittsburgh, etc., Ry. Co. v. Sudhoff, Adm'rs, 88 N. E. 702. The judgment of the court below is...
  • Pittsburgh, C., C. & St. L. Ry. Co. v. Sudhoff, 6,330.
    • United States
    • Indiana Court of Appeals of Indiana
    • 4 Junio 1909
    ...Adm'r, v. City of Vincennes, 34 Ind. App. 667, 72 N. E. 166;Pichon v. Martin, 35 Ind. App. 167, 73 N. E. 1009;Wabash R. R. Co. v. Beedle, 88 N. E. 535, opinion of this court on petition for rehearing filed May 25, 1909, and cases there cited. The writer of this opinion does not concur in th......
  • Wabash R. Co. v. Beedle, 21,610.
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Febrero 1910
    ...Company. Judgment for plaintiff, affirmed by the Appellate Court (87 N. E. 690), and defendant appeals. Reversed. [90 N.E. 761] See, also, 88 N. E. 535.Stuart, Hammond & Simms, Myers & Yarlott, and John C. Nelson, for appellant. McConnell, Jenkines, Jenkines & Stuart and Cox & Andrews, for ......

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