49 Ind. App. 674 | Ind. Ct. App. | 1912
Appellee, who is a florist at Logansport, brought this action in the Cass Circuit Court to recover damages, which he avers were sustained by him on account of the negligent construction and maintenance by appellant of a certain sewer in the territory in which appellee’s greenhouse is situated, whereby sewer water was caused to flow into his furnace, putting out the fires, and causing many of his plants and flowers to become frozen. Appellant’s motion to require appellee to make his complaint more definite, certain and specific, was overruled, as was also a demurrer to the complaint. Answer of general denial was then filed. The cause was tried by the court without a jury. At the request of both parties, the court found the facts specially, and stated its conclusions of law thereon. Judgment in the sum of $3,210 was rendered on the conclusions of law in favor of appellee.
The substantial averments of the complaint are that to prevent leakage and diversion of the water and sewage from such sewer, and the pouring thereof on to plaintiff’s said premises, it was necessary to construct and maintain said sewer with tight walls, and closed-pipe-joint connections, so as to make said sewer practically water tight, all of which defendant well knew, but defendant, by its officers, agents and employes, carelessly and negligently maintained said sewer with insecure, loose, leaky walls and open-joint connections, so that large volumes of water and sewage, when gathered in such sewer, would not be retained, and restrained from passing through the walls out upon plaintiff’s said premises, and by reason of such negligent construe
This is an action in tort, in which an itemized bill of particulars Avill not usually be required. This rule has been announced in a number of cases, and although they are not identical in form with this case, yet they are so closely related in principle as to justify the conclusion that the trial court did not err in overruling the motion under considera
We are also impressed with the thought that no injustice was done appellant, or its rights prejudiced, by the refusal of the court to require appellee to set out the value of each item of property destroyed, for in any event the amount of appellee’s recovery could alone be measured and ascertained from the proof introduced at the trial, coming from persons acquainted with the value of such articles.
What we have said with regard to the court’s ruling on the demurrer to the complaint, applies with equal force to the assignment that the court erred in overruling appellant’s motion in arrest of judgment.
We find no reversible error in the record, and the judgment of the trial court is, therefore, in all things affirmed.