74 Ind. App. 437 | Ind. Ct. App. | 1920
Lead Opinion
This action was commenced in the Huntington Circuit Court and the venue, on affidavit of appellant, was changed to the Wabash-Circuit Court.
The substance of the first paragraph of the com
The second paragraph, so far as concerns this decision, is substantially the same as the first, but more specifically avers that for several months preceding the accident the decedent, in going to and from his employment with said trucking company, passed to and from said trucking company’s office and barns, along and over the driveway, which was the shortest and most convenient way for decedent to go to and from his place of employment, and on the evening of November 12, 1915, after dusk, and having finished the day’s work at the trucking company’s barns, he started on foot to go to his home through and over said driveway parallel with said retaining wall, when he was injured as averred in the first paragraph of complaint.
It is to be observed that the complaint in this action seems to be drawn upon a double theory, the one being that appellant’s decedent was rightfully upon the premises when injured, as an employe of the trucking company, which said company had paid a consideration of $25 for the right to use the driveway involved, such decedent being included in the right and privilege to go along said way, and being in the exercise of that right in going to and from his work for said trucking company, when injured; and the other theory being that
Rehearing
On Petition for Rehearing.
Appellant contends in her brief on rehearing that the fact that the complaint had a double theory ought not to cause it to be held bad if the allegations were sufficient to support either theory. In the original opinion the court did not hold that the complaint was bad because it contained a double theory, but because it was insufficient upon the theory most ap
The petition for rehearing is overruled.