| S.C. | Apr 10, 1905
April 10, 1905. The opinion of the Court was delivered by In this case there are two appeals, but by consent, they were heard together. The plaintiff appealed because his Honor, the Circuit Judge, struck out certain allegations of the complaint, on the ground that they were irrelevant and redundant, and the defendant appealed because he refused to strike out others.
The plaintiff alleges that he suffered personal injuries through the wilfulness, recklessness and negligence of the defendant. The motion was to strike out the allegations which we have italicized in the fourth paragraph of the complaint. That paragraph is as follows: "That there was not on said train sufficient lights, nor a sufficient number of men safely to discharge the work and properly to operate it, nor did the defendant select proper co-employees of plaintiff; the engineer was reckless, intemperate and incompetent; the engine was defective, out of repair and dangerous; that thedefendant carried insurance to indemnify itself against liabilitiesfor injuries to its employees, making it indifferentand careless of the injuries to the plaintiff; that the defendant failed and omitted to instruct the plaintiff in the work to be performed, and of the danger of the service, althoughinjuries were frequently attending employees in the service, and through these violations of duty causing or contributing *344 to the above injury, the defendant wilfully, recklessly, and negligently damaged and injured the plaintiff to the amount of $20,000."
The Circuit Judge made the following order: "Motion to strike out irrelevant matter in the complaint. The allegations are inversely stated:
"(1) That defendant was careless and indifferent to plaintiff because it carried indemnity insurance.
"(2) That injuries were frequently attending employees in its service. The allegation that defendant was careless and indifferent is not irrelevant, but the reason assigned therefor is. It would be irrelevant for the plaintiff to allege that defendant failed to carry such insurance for the benefit of its employees and it is as well irrelevant to charge that such insurance was carried.
"The other allegation is not irrelevant. The complaint charges wilful action of defendant. To prove that, plaintiff may show that defendant had notice of frequent injuries and was therefore bound to be on the lookout for accidents. If proper to prove, it may be allowed.
"I am of the opinion that the irrelevancy pointed out appears from the pleadings, and no proof that it aggrieves the defendant is required beyond that furnished by the pleadings. The motion is granted so far as the words, `The defendant carried insurance to indemnify itself against liabilities for injuries' are concerned, further than that it is denied.
"Let plaintiff so amend the complaint within five days of the filing of this order, and let the defendant have five days thereafter to answer."
The exceptions will be set out in the report of the case.
The first question for consideration is whether the Circuit Judge erred in ordering the words, "the defendant carried insurance to indemnify itself against liabilities for injuries," to be struck out. Section 181 of the Code provides that "if irrelevant or redundant matter be inserted in a pleading, it may be stricken out, on motion of any *345 person aggrieved thereby." Mr. Pomeroy, in section 551 of his book entitled Code Remedies, says, "an allegation is irrelevant when the issue formed by its denial can have no connection with nor effect upon the cause of action." As said by the Circuit Judge, the allegation struck out only stated the reasons why the defendant was indifferent and careless. It, in no sense, constituted an element of damage and could have no connection with nor effect upon the cause of action. At most the allegation was merely evidentiary and properly struck out.
The next question for consideration is whether there was error in refusing to strike out the words, "although injuries were frequently attending the employees in the service."
This allegation tended to show notice on the part of the defendant that the work was dangerous, and if it failed to exercise due care after knowledge of this fact, it might be considered by the jury in aggravation of damages. It cannot be said that it has no connection with nor effect upon the cause of action. The authorities are not in harmony as to the necessity of alleging facts in aggravation of damages, as will be seen by the following quotation from 5 Pl. and Pr., 705, and notes, to wit: "As a general rule, it is not necessary to the plaintiff's right of recovery, that the particular circumstances of aggravation, should be set out in the declaration, although such matters are not infrequently alleged, and in some cases have been required in order to warrant a recovery."
Facts in aggravation of damages partake not only of an evidentiary but of an elementary nature. Their characteristics as an element of damages make it proper to allege them in the complaint. As they are likewise evidentiary, it is not essential that they should be alleged, but they may, nevertheless, be introduced as testimony to support other allegations, in a proper case. The only effect of alleging them is to give notice to the adverse party that they will be relied upon, and he certainly has no just ground of complaint, *346 that he is apprised of this fact. The Circuit Judge, therefore, properly refused to strike out said allegations.
It is also assigned as error that the Circuit Judge did not have authority under section 181 of the Code, to grant the order, in as much as the notice of motion did not allege that the defendant was aggrieved by said allegations. It does not appear that this was urged as an objection against the hearing of the motion. But waiving this fact, this Court is satisfied that the ruling was correct.
Other assignments of error are because the Circuit Judge required the plaintiff to amend his complaint and in allowing defendant further time to answer. These matters were within the discretion of the Circuit Judge and we see no reason to reverse his order in these respects.
It is the judgment of this Court, that the order of the Circuit Court be affirmed.