Spencer v. Miller

Ohio Court of Appeals

Spencer v. Miller

82 N.E.2d 763, 84 Ohio App. 190, 52 Ohio Law. Abs. 347, 39 Ohio Op. 239, 1948 Ohio App. LEXIS 676

CourtOhio Court of Appeals

DecidedOctober 6, 1948

Docket4159

StatusPublished

Cited by2 cases

This text of 82 N.E.2d 763 (Spencer v. Miller) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Spencer v. Miller, 82 N.E.2d 763, 84 Ohio App. 190, 52 Ohio Law. Abs. 347, 39 Ohio Op. 239, 1948 Ohio App. LEXIS 676 (Ohio Ct. App. 1948).

Pincite

Opinion

OPINION

Hy WISEMAN, PJ.

This is an appeal on law from the judgment of the Common Pleas Court of Franklin County, Ohio, dismissing the plaintiff’s action for failure to comply with the Court’s order to make his petition definite and certain.

The action of the plaintiff was. one for damages arising out of an automobile collision. In his petition, the plaintiff, after alleging acts of negligence, claimed damages as follows: “Fenders, hood, radiator, grill, shell, doors, cowl, body knocked out of line, frame bent, and other small parts too numerous to *349 mention. The reasonable value of said destroyed parts was and is $250.00”; plaintiff also alleged that his automobile depreciated generally in value to the extent of $100.00.

The defendant moved the Court for an order requiring the plaintiff to make his petition definite and certain by stating the value of the plaintiff’s automobile immediately before said accident and the value of the plaintiff’s automobile immediately after the accident. This motion was sustained. The plaintiff, excepting to this order and refusing to comply therewith, the action was dismissed.

The plain tiff-appellant contends that the ruling of the Trial Court was erroneous. Counsel in their briefs discuss the proper measure of damages as applied to the evidence introduced upon trial. The question raised does not involve the proper measure of damages, but a fundamental rule of pleading. It is fundamental that the pleader must allege ultimate facts as distinguished from evidential matter. 31 O.

Jur. 544. To require the plaintiff to allege the reasonable market value of his automobile before and after the accident would be to require the plaintiff to plead evidential matter. It is fundamental that general damages need not be specially pleaded but may be recovered under a general allegation of damages. Such damages may be alleged in a lump sum, though the pleader sets out with particularity different items of injuries for which he claims damages. 13 O. Jur, pp. 259, 260; 31 O. Jur. 631.

The defendant-appellee contends that the judgment of the trial Court dismissing an-action and entering final judgment against the plaintiff for failure to make his petition definite and certain, as ordered by the Court, will not be reversed unless it is clearly shown that the Court abused its discretion. In support of this proposition of law, the case of Rudd v. City of Akron, 64 Oh Ap 308 is cited. In that case, the reviewing Court found that the order requiring the plaintiff to make his petition definite and certain was proper. No abuse of discretion was shown. In the case at bar, in our judgment, the order of the trial court requiring the plaintiff to make his petition definite and certain was improper. To dismiss the action and enter judgment for the defendant was an abuse of discretion.

Judgment reversed and cause remanded to the trial court for proceedings according to law.

MILLER and HORNBECK, JJ, concur.

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OPINION

Hy WISEMAN, PJ.

This is an appeal on law from the judgment of the Common Pleas Court of Franklin County, Ohio, dismissing the plaintiff’s action for failure to comply with the Court’s order to make his petition definite and certain.

The action of the plaintiff was. one for damages arising out of an automobile collision. In his petition, the plaintiff, after alleging acts of negligence, claimed damages as follows: “Fenders, hood, radiator, grill, shell, doors, cowl, body knocked out of line, frame bent, and other small parts too numerous to *349 mention. The reasonable value of said destroyed parts was and is $250.00”; plaintiff also alleged that his automobile depreciated generally in value to the extent of $100.00.

The defendant moved the Court for an order requiring the plaintiff to make his petition definite and certain by stating the value of the plaintiff’s automobile immediately before said accident and the value of the plaintiff’s automobile immediately after the accident. This motion was sustained. The plaintiff, excepting to this order and refusing to comply therewith, the action was dismissed.

The plain tiff-appellant contends that the ruling of the Trial Court was erroneous. Counsel in their briefs discuss the proper measure of damages as applied to the evidence introduced upon trial. The question raised does not involve the proper measure of damages, but a fundamental rule of pleading. It is fundamental that the pleader must allege ultimate facts as distinguished from evidential matter. 31 O.

Jur. 544. To require the plaintiff to allege the reasonable market value of his automobile before and after the accident would be to require the plaintiff to plead evidential matter. It is fundamental that general damages need not be specially pleaded but may be recovered under a general allegation of damages. Such damages may be alleged in a lump sum, though the pleader sets out with particularity different items of injuries for which he claims damages. 13 O. Jur, pp. 259, 260; 31 O. Jur. 631.

The defendant-appellee contends that the judgment of the trial Court dismissing an-action and entering final judgment against the plaintiff for failure to make his petition definite and certain, as ordered by the Court, will not be reversed unless it is clearly shown that the Court abused its discretion. In support of this proposition of law, the case of Rudd v. City of Akron, 64 Oh Ap 308 is cited. In that case, the reviewing Court found that the order requiring the plaintiff to make his petition definite and certain was proper. No abuse of discretion was shown. In the case at bar, in our judgment, the order of the trial court requiring the plaintiff to make his petition definite and certain was improper. To dismiss the action and enter judgment for the defendant was an abuse of discretion.

Judgment reversed and cause remanded to the trial court for proceedings according to law.

MILLER and HORNBECK, JJ, concur.

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Bluebook (online)

82 N.E.2d 763, 84 Ohio App. 190, 52 Ohio Law. Abs. 347, 39 Ohio Op. 239, 1948 Ohio App. LEXIS 676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spencer-v-miller-ohioctapp-1948.

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