35 Ind. App. 373 | Ind. Ct. App. | 1905
The amended complaint in this action, as stated by the appellee (plaintiff), avers: “The above-named plaintiff complains of the above-named defendant, and says: That on the 21st day of January, 1901, ha was employed by said defendant in the use of a track in propelling the same from place to- place in the factory of said defendant, in the city of South Bend, Indiana; that said truck was provided with screws and bolts, which said screws and bolts said plaintiff was required, as a part of his employment, to keep tight in place; that, while in the use of said truck aforesaid in said factory on said day, a bolt on said truck became loose, and said plaintiff was
In McElwaine-Richards Co. v. Wall (1902), 159 Ind. 557, the court, said: “While a court in dealing with evidence may be justified in drawing inferences from certain items of evidence, still* it is not warranted in resorting to inferences or deductions where the question involved pertains to the sufficiency of pleading; for the rule recognized at common law and by our code affirms that material facts necessary to constitute a cause of action must be directly averred, and can not be left to depend upon or to be shown by mere recitals or inferences. Avery v. Dougherty [1885], 102 Ind. 443, 52 Am. Rep. 680; Erwin v. Central Union Tel. Co. [1897], 148 Ind. 365, and cases cited. A plaintiff who seeks to recover on the ground of negligence, among other things, is required in his complaint sufficiently to allege actionable negligence on the part of the defendant. Baltimore, etc., R. Co. v. Young [1896], 146 Ind. 374, and cases cited.”
Appellee says: “The proximate cause of the injury was the lack of space in which to pile the wheels. The high pile and the falling were a sequence to- the lack of space. If the space had been sufficient, injury to- appellee would not have occurred.-” The theory of a pleading is determined by its principal and leading allegations, and from its general scope and tenor, and by that theory alone it must stand or fall regardless of its sufficiency upon some other hypothesis. Aetna Powder Co. v. Hildebrand (1894), 137 Ind. 462, 473, 45 Am. St. 194; Copeland v. Summers (1894), 138 Ind. 219; Terre Haute, etc., R. Co. v. McCorkle (1895), 140 Ind. 613; Cleveland, etc., R. Co. v. Stewart (1900), 24 Ind. App. 374; Pennsylvania Co. v. Walker (1902), 29 Ind. App. 285.
Judgment reversed, with instructions to permit appellee to amend his complaint.