City of Hammond v. Meyers

55 N.E. 102, 23 Ind. App. 235, 1899 Ind. App. LEXIS 39

• Court: Indiana Court of Appeals
• Decided: November 3, 1899
• Docket: No. 2,887
• Status: Published

Opinion

Henley, J. —

In this case the assignment of error presents to the court one question: Does the complaint state facts sufficient to constitute a cause of action? The complaint in this case contains an allegation showing a duty owing by the appellant to appellee, an averment that appellant failed to perform that duty,-and that the failure to perform such duty was the natural and proximate cause of the damage sustained by appellee. These three necessary averments are fairly deducible from the lengthy and disjointed statements of facts contained in appellee’s complaint. It also appears from the complaint that appellant is a corporation; that appellee was damaged because of a defective street and sidewalk constructed by appellant, and of which defect appellant had reasonable notice, and that appellee was himself without fault.

We find the objections to the'complaint pointed out by the counsel for appellant are, in each instance, that some material averment is not sufficiently definite, positive, or specific. We think every objection made by appellant to the complaint could have been remedied by a motion to make more specific, and this would have been the proper practice. Cincinnati, etc., R. Co. v. Gaines, 104 Ind. 526, 54 Am. Rep. 334; Jones v. State, 112 Ind. 193; Cleveland, etc., R. Co. v. Wynant, 119 Ind. 539. Judgment affirmed.