104 Ind. 13 | Ind. | 1885
The appellee alleges in his complaint, that the’ appellant owns and operates a line of railroad extending through the counties of Madison and Tipton, in this State, and that it is engaged in the business of transporting freight and passengers for hire; that El wood, in Madison county, and Curtisville, in Tipton county, are each siations at which passengers and freight are received and discharged; that in September, 1883, the appellee was engaged in the business
The appellant’s counsel assumes that the complaint is constructed upon the theory that the appellee was wrongfully ejected from the train, and, proceeding upon this assumption, asserts that the complaint is bad because it does not aver that the rules of the company provided that the train entered by the appellee should stop at the station for which he took passage. The appellee’s counsel contest the assumption of appellant, and affirm that the theory upon which the complaint proceeds is, that the conductor used unnecessary force in ejecting the appellee from the train.
We have no doubt that the law is, that if the conductor uses unnecessary force in ejecting a passenger, the company is liable, although the conductor may have a right to eject him and to employ reasonable force to expel him from the train. McClure v. Philadelphia, etc., R. R. Co., 34 Md. 532 (6 Am. R. 345); Shedd v. Troy, etc., R. R. Co., 40 Wt. 88. This is but the application of an old principle, óld as the law itself, to a modern instance; for it has ever been the law that no man has a right to employ unnecessary force in doing any act. "While it is true that a conductor may not use unnecessary force to eject a passenger, it is also true that he may employ, reasonable force to accomplish that object. The degree of force is determined, not by results simply, for other facts must be taken into consideration, and chief among such
The use of unnecessary force is unlawful. He who constructs a complaint upon the theory that unnecessary force was used in expelling a passenger from a railroad train, proceeds upon the ground that an unlawful act was committed. One who bases his cause of action upon the performance of an unlawful act must affirmatively show it to be unlawful; the appellee does basé his cause of action upon the performance of an unlawful act, and it therefore devolves upon him to show that it was unlawful. Acts can not be shown to be unlawful by epithets; facts alone can have this effect. The result of these principles is, that this complaint can not be good upon the theory assumed by the appellee unless it states such facts as show that the act of the appellant’s conductor was unlawful. In order to show that the act was unlawful, it is essential to state facts showing that unnecessary force was employed in ejecting the appellee from the train. In our opinion no such facts are stated. These are the averments of the complaint upon this point: “That the conductor stopped the train and put the plaintiff off the train, beside the road, about one mile from Elwood. And the plaintiff further alleges that he is so afflicted with a disease called hernia, that he is compelled to wear a truss, and that, in putting him off the train, the conductor used so much force and violence that he broke his truss and rendered it entirely useless, and the conductor also threw him violently to the’ ground and greatly bruised and wounded him.” These allegations do show that force was used, but they are far from showing that it was unnecessary. For anything that appears,
It is essential to the formation of issues and to the intelligent and just trial of causes, that a complaint should proceed upon a distinct and definite theory. It would violate all rules of pleading to permit a complaint to be construed as best suited the exigencies of the case; to allow such a course of procedure would produce uncertainty and confusion, and materially trench upon the right of the defendant to be informed of the issue he is required to meet. The rule is, that the complaint must proceed on a distinct and definite theory, and upon that theory the case must stand or fall. Many times- our own, and other courts, have asserted and enforced this rule. Bremmerman v. Jennings, 101 Ind. 253, and authorities cited; Mescall v. Tally, 91 Ind. 96, and authorities cited. We are clear that the complaint before us, judged, as it must be, by its general scope, does proceed upon the' theory that the appellee is entitled to recover because he was wrongfully ejected from the appellant’s train.
We adopt the appellant’s construction of the complaint, and will examine its sufficiency upon the assumption that it seeks a recovery on the ground that the appellee was wrongfully ejected from the appellant’s train by its conductor. If the appellee was wrongfully ejected, then the complaint is good irrespective of the degree of force used in putting him off; for the law is well settled that an action may be maintained for the wrongful expulsion of a passenger. The
It was held in Lake Shore, etc., R. R. Co. v. Pierce, 3 Am. & Eñg. R. R. Cas. 340, that “A passenger wrongfully on a railway train can recover no damages for his removal and exclusion therefrom except for needless violence.” The decisions of this court assert the same doctrine as the cases cited. Pittsburgh, etc., R. W. Co. v. Nuzum, 50 Ind. 141 (19 Am. R. 703); Ohio, etc., R. W. Co. v. Applewhite, 52 Ind. 540; Ohio, etc., R. W. Co. v. Hatton, 60 Ind. 12; Ohio, etc., R. W. Co. v. Swarthout, 67 Ind. 567 (33 Am. R. 104); Indianapolis, etc., R. R. Co. v. Kennedy, 77 Ind. 507. As it is incumbent upon the plaintiff in an action of this kind to show that he was rightfully on the train from which he was remoyed, it is necessary for him to aver in his complaint, that the rules of the company provided that the train on which he took passage should stop at the station named ón his ticket. A recent writer says: “ In an action by the passenger, against the company, to recover dama'ges for carrying him beyond his destination named on the ticket, the complaint should aver that the train on which he was so carried was one which, undey the regulations of the company, should have stopped
The trial court erred in overruling the demurrer to the complaint, and the judgment is reversed.
