Barney v. City of Hartford

40 N.W. 581, 73 Wis. 95, 1888 Wisc. LEXIS 3

• Court: Wisconsin Supreme Court
• Decided: December 4, 1888
• Status: Published

Opinion

Cole, C. J.

The complaint in this case, as a pleading, may be obnoxious to the objection of being unnecessarily prolix, but there is surely no ground for saying that it is not definite and certain in describing the defect in the walk which caused the injury. In folios 6, 7, 8, and 9 of the complaint the condition of the sidewalk is minutely described, and it is stated in what the defect or insufficiencj' consisted. It was unnecessary to go into so much detail in describing the defect. A general allegation that the walk was defective and out of repair at the place named, or at most stating briefly in what the defect consisted, would have been sufficient. A party is not required to set forth the evidence in his pleading, but to give a concise statement of the facts which constitute the cause of action, without unnecessary repetition. This is the requirement of the statute. Sec. 2646, R. S. The act of negligence complained of was, of course, the failure of the defendant city to keep the sidewalk in a reasonably safe and proper condition for persons walking over it. It is certainly true that the defendant was entitled to be informed as to what negligence it was claimed produced the injury, and it was so informed with great particularity. It is not necessary to quote the allegations of the complaint which describe the condition of the walk and its defects. An examination of them will suffice to show that they are sufficiently definite and certain in that regard.

Rut it is said the complaint is uncertain as to the nature ■or amount of damages, or pecuniary loss in his business, which the plaintiff sustained by his injury; but upon that point the complaint is not open to any objection. The defendant might have obtained a bill of particulars as to these items of damages, or mignt have examined the plaintiff about them, if it had desired to do so. It is true, in the rule to show cause it is asked, among other things, that the plaintiff show cause why he should not furnish a bill of particulars as to his loss; yet this seems to nave been a very subordinate part of the relief demanded by the rule. The real object of the rule seems to have been to have the complaint made more definite and certain as to the defects and condition of the sidewalk, and that it should state with more particularity the amount paid out and expended by' the plaintiff in attempting to be cured of his injuries, and the service or object for which such expense was incurred; also in stating the items of his pecuniary ¿oss. As we have said, we think the complaint was sufficiently definite and certain upon all these points; but, had the defendant simpiy asked for a bill of particulars, the court would doubtless have ordered the plaintiff to furnisn it. Under the circumstances, we think the rule to show cause was properly discharged.

By the Oourt.— The order of the circuit court is affirmed, without prejudice to the defendant’s right to ask for a bill of particulars if it is deemed necessary for the defense. The cause is remanded to the circuit court for further proceedings according to law.