Opinion
No. 18,042.
Filed November 6, 1950.
1. NEGLIGENCE — Action — Pleading — Complaint — Plea of Freedom From Contributory Negligence Indicates Negligence Theory. — Where plaintiff alleged in his complaint that defendant's agent drove a truck into plaintiff's store building demolishing a neon sign, the fact that plaintiff also alleged freedom from contributory negligence indicated that the complaint was framed on the theory of negligence rather than a theory of an intentional trespass. p. 612.
2. NEGLIGENCE — Action — Pleading — Complaint — Negligence Must Be Pleaded Directly. — In a common law action based on negligence or its equivalent, negligence must be directly averred, or such facts must be alleged that a presumption or inference of negligence necessarily arises. p. 612.
3. AUTOMOBILES — Injuries From Operation — Action — Complaint — Failure To Allege Facts Giving Rise to Necessary Inference of Negligence — Complaint Insufficient. — In an action to recover for property damage resulting when defendant's truck struck and destroyed a neon sign on plaintiff's building, the complaint, alleging defendant's agent turned the truck into plaintiff's store building and drove into and upon the neon sign, was demurrable for failure to allege negligence or any acts from which an inference of negligence necessarily arises, because it is not necessarily negligence to drive a truck into a building since surrounding circumstances might make such action accidental, unavoidable or, conceivably, it might even have been negligent not to do so. p. 613.
From the Vanderburgh Probate Court, F. Wendell Lensing, Judge.
Action by Neighborhood Drugs, Inc., against Hayes Freight Lines, Inc., for property damage resulting when defendant's truck was driven into a neon sign on plaintiff's building. From a judgment for plaintiff, defendant appeals.
Reversed with instructions. By the court in banc.
Walker Walker; Henry B. Walker, Henry B. Walker, Jr., John L. Carroll and Clay Ulen, all of Evansville, for appellant.
James D. Lopp and Theodore Lockyear, both of Evansville, for appellee.
Hayes Freight Lines appeals from a judgment rendered against them in an action for property damage, brought by Neighborhood Drugs, Inc.
The amended complaint alleges that in Evansville, Indiana, West Columbia Street, which runs east and west, is intersected by North Fulton Street, which runs north and south; that the appellee owned a drug store located on the northeast corner of said intersection. attached to which store there was a certain sign that extended diagonally from the corner of said building; that on the afternoon of July 8, 1948, the appellant, by and through its agent, servant and employee, was operating its truck westwardly on west Columbia Street toward said intersection, and that when said driver had approached said intersection he "turned said truck of said defendant into and towards the said store building of said plaintiff and drove said truck into and upon said neon electric sign, thereby knocking said sign from said store building and completely demolishing said sign." The complaint further alleges that appellee was not guilty of contributory negligence.
After unsuccessfully moving to have the complaint made more specific, definite and certain, the appellant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Appellant's theory was that the complaint failed to allege the breach of any duty owing from the appellant to the appellee, or that appellee was in anywise negligent. The demurrer was overruled, and we proceed to a consideration of the propriety of that ruling.
By pleading freedom from contributory negligence, the appellee indicated that the complaint was drawn on the theory of negligence and not on the theory that the damage was 1. purposely caused. Moreover, the appellee here seeks to sustain the complaint only on the theory that the complaint sufficiently alleges negligence on the part of the appellant.
The problem presented was considered by our Supreme Court in Phillips v. Klepfer (1940), 217 Ind. 237, 27 N.E.2d 340. From that case, and the cases therein relied upon, the rule 2. emerges that in a common law action based on negligence or its equivalent, negligence must be directly averred, or such facts must be alleged that a presumption or inference of negligence necessarily arises. The case of Cleveland, etc., R. Co. v. Perkins (1908), 171 Ind. 307, 86 N.E. 405, is therein quoted from with approval. In the latter case our Supreme Court said that "the negligence relied upon must be charged in terms, or facts must be averred sufficient to compel the inference of such negligence as will constitute the proximate cause of the injuries sustained." (Emphasis supplied.)
In the complaint before us negligence is not pleaded in general terms. No act of the appellant is characterized as having been negligently or carelessly done, nor does it seem to us that the facts averred are sufficient to compel the presumption or inference of negligence or that negligence would necessarily arise therefrom.
The sign is alleged to have been knocked down and damaged. The complaint does not allege how far the sign extended toward or into that part of the roadway used by vehicles, nor does it 3. allege the distance from the bottom of the sign to the roadway. For aught stated in the complaint the sign might have extended into, and created an unlawful and unreasonable hazard to vehicles lawfully using the street. It is not alleged that the truck at any time left that part of the roadway reserved for vehicular traffic; that the truck was too wide or too high; nor are any other facts stated from which an inference of negligence would necessarily arise. It is not necessarily negligence to drive a truck into a sign affixed to a building. The surrounding circumstances might be such that it would be purely and unavoidably accidental, or it might even be negligence not to do so. The mere doing of it and the fact that damage resulted to the plaintiff does not compel the inference of negligence, and since it was not alleged to have been negligently done, the complaint is insufficient to show the violation of any duty owing to the plaintiff.
Judgment reversed and cause remanded with instructions to sustain demurrer.
NOTE. — Reported in 94 N.E.2d 758.