153 Ind. 609 | Ind. | 1899
Appellant filed a complaint in one paragraph to recover for personal injuries alleged to have been received through the agency of lightning conducted into appellant’s storeroom over appellee’s wires. > Demurrer sustained. Exception by appellant. Afterwards, by leave of court, appellant filed a “second paragraph of complaint”. Demurrer sustained. Exception by appellant. Afterwards, by leave of court, appellant filed a “third paragraph of complaint”. Demurrer sustained. Exception by appellant. Upon appellant’s refusal to plead further, the judgment was rendered from which this appeal was taken.
The so-called second and third paragraphs state the same cause of action upon which the first was based. The so-called second paragraph, at the time it was filed, constituted the only complaint that was then before the court in this action. The first complaint having gone out on demurrer, the second complaint was, in legal effect, an amended complaint, without regard to the manner in which it was entitled. Similarly, the alleged error in sustaining the demurrer to the so-called second paragraph was waived by pleading further. Hunter v. Pfeiffer, 108 Ind. 191; Jouchert v. Johnson, 108 Ind. 436; Hargrove v. John, 120 Ind. 285; Hormann v. Hartmetz, 128 Ind. 353.
The third paragraph, down to the place where contributory' negligence is negatived and the injury and damages are stated, alleges that defendant is a corporation engaged in the business of furnishing its patrons means of communication by telephone over wires which act as ready conductors of electricity in the form commonly called lightning; that prior to June 1, 1896, plaintiff had in his storeroom two telephones, placed there by two different companies that had separate plants and central offices; that each of the telephones had a ground wire; that the two companies consolidated and
Appellee is not charged with having created the dangerous conditions. Other companies did that. When did appellee become the owner and operator of the system of which the telephone in appellant’s storeroom at the time of the accident was a part? The first statement touching appellee is that appellee is engaged in operating a telephone plant. This averment speaks of the time when the complaint was -filed, April 10, 1897. The next reference to appellee is the statement that the company that made the changes connected the remaining telephone with the central office now used by appellee. Here, too, the complaint speaks of the present. That is, appellee was operating the plant on April 10, 1897, ten months after the accident. The third reference to appellee is the allegation that appellee, with full knowledge of the defective condition, permitted it to remain for two months. Eorward or backward from what date or event, is not stated. But if it were assumed that the period of two months next preceding the accident was intended, the averment would disclose no breach of duty on appellee’s part. If the consolidated company continued to own and operate the plant (and such would be the inference in the absence of a statement to the contrary), appellee could not be deemed guilty of an actionable wrong in permitting, or not preventing, that company from continuing a condition it had created, even if appellee did know of it. The next reference, and the only one that indicates appellee’s interest in the plant at and before the time of the accident, is the averment that the light
Judgment affirmed.