Lester v. Brier

88 Ind. 296

Opinion

Elliott, J.

— We recognize as correct the rule that a plaintiff may state his cause of action in different forms, and that it is not error to refuse to compel 'an election, or to deny a motion to strike out some of the paragraphs of the complaint; but it does not follow from this that a judgment will be reversed where a demurrer is sustained to one of several paragraphs in a case where there are other paragraphs like the one held bad, and which state the same cause of action and in the same form. Where the paragraphs left standing entitle the plaintiff to the same relief as, and require of him no other or greater evidence than, the one held bad would have done if declared good, then he is not harmed. If, in other words, the paragraphs left in are provable by the same evidence as the one struck out, then no injury results from the ruling. City of Elkhart v. Wickwire, 87 Ind. 77. Where, however, more or different evidence is required, or the plaintiff’s case is made more difficult of proof, or his burden increased, then it would be error to strike out a paragraph or sustain a demurrer to it if it stated a cause of action.

It is quite clear that the three paragraphs of the appellant’s complaint state the same cause of action, that there is no substantial difference in the form of the statement of the material facts, and that the evidence required by one of them is that required by all. We think no harm resulted to appellant from the ruling on the demurrer to the second paragraph, even upon the concession that it is good.

Judgment affirmed.