PLEADING.

[Wood Circuit Court,

October Term, 1894.]

Bentley, Scribner and Haynes, JJ.

#### Golley & Finley Iron Works v. Charles S. Callan.

1. Very General Allegations Sustained against demurrer.

Very general allegations of bow an injury by negligence occurred are, sufficient on demurrer.

2. The Remedy is Motion to make more Definite and Certain.

Tbe proper method of obtaining a fuller statement of plaintiff’s cause of action is by way of motion to make more definite and certain.

Haynes, J.

This is a petition in error filed to reverse the court of common pleas in an action brought by Charles S. Callan against the defendant, Golley & Finley Iron Works.

The case is brought before us on the record which includes a bill of exceptions. The bill of exceptions shows there were three exceptions taken during the progress of the trial to questions which were propounded to the witness by the plaintiff below.

It is sufficient to say that we have examined these questions and are of the opinion that there is no such manifest error that requires the interposition of •this courfin regard to them, or to reverse the judgment on account of them.

The main question of the case is whether the petition states facts sufficient to constitute a cause of action.

*234A demurrer was interposed in the court of common pleas to the petition, and ■that demurrer was overruled, and therefore an answer was filed by the defendant, and the case went to trial and a verdict was rendered in favor of the plaintiff below.

I will read the petition:

> “ The plaintiff, Charles C. Callan, says that the defendant is a copartnership formed for the purpose of and doing business in the state of Ohio and not incorporated, and that the .firm name is the Golley & Einley Iron Works. That on or about April 7, 1893, plaintiff was in the employ of said defendant in its shop at Cygnet, Ohio, in the capacity of helper to the •workmen then and there employed by defendant in repairing boilers and other like service, and plaintiff was then and there under the charge and direction of one John J. Hartican, the ■.foreman and superintendent of defendant’s said workmen, shop and business, and the plaintiff being directed by said superintendent so to do, and having no knowledge or warning of the danger thereof, helped said workmen about cutting the heads off of the stay-bolts of a ■certain boiler, then and there being repaired, which said boiler, said John J. Hartican had then and there carelessly and negligently caused and permitted to lie in an improper and dangerous position for said work, and for the workmen engaged thereon, and by reason of the said negligence of said John J. Hartican in so directing said plaintiff to perform said service while said boiler was lying in said position, whereby said work was made dangerous as aforesaid.^ And while plaintiff was so engaged in said work under the direction of said John J. Hartican, a piece of metal was detached from the head of one of said stay-bolts, and with great force, violence and swiftness, struck and penetrated plaintiff’s right eye, causing him great pain and permanently destroying the sight of the eye, and causing him to lose much time and labor and wages, amounting to sixty dollars, and to be obliged to pay surgeons’ bills and other necessary expenses in efforts to get cured, amounting to forty dollars, and •causing other loss and damage, amounting in all to five thousand dollars.

> “ Wherefore plaintiff prays that he may recover from said defendant said sum of five ■thousand dollars, his said damages so as aforesaid sustained.”

We bave examined this petition with a good deal of care, and it has caused ■ns a considerable discussion. This court likes to see a good pleading, in which •the facts are clearly stated and sufficient to constitute a cause of action.

In the case of *Coal & Car Co.*v. Norman, 49 O. S., 598, the case in which thé Supreme Court reversed the case for insufficiency of pleading, the court •says:

> “ The servant in order to recover for defects in the appliances of the business is called on to establish three propositions: 1st, That the appliance was defective. 2d, That the master "had notice thereof, or knowledge, or ought to have had. 3d, That the servant did not know of the defect and had not equal means of knowing with the master, and it is elementary in the law of pleading that, whatever a party is required to prove in order to make out his claim must be averred.”

The code provides that the plaintiff must set out the facts (in a plain and •concise manner) which constitute his cause of action.

Now the plaintiff has averred in this case:

> “ That he was a helper to the workmen employed in the shop of the defendant in the repair of boilers and other like services; that he was under the charge and direction of John J._ Hartican, the foreman and superintendent of the workmen and business, and that being directed by said superintendent so to do, and having no knowledge or warning of the danger •thereof, helped said workmen about cutting, the heads off of the stay-bolts of a certain boiler then and there being repaired, which said boiler, said John J. Hartican had then and there carelessly and negligently caused and permitted to lie in an improper and dangerous position for said work.”

Now, that of course is his first item of charge against the defendants; that is, that they did allow the boiler on which he was to work to lay in an improper .and dangerous position for said work; and he further says:

> . *“*That by reason of the said negligence of said John J. Hartican in so directing said •plaintiff to perform said service while said boiler was lying in said position whereby said vork was made dangerous as aforesaid, and while plaintiff was so engaged in said work under the direction of said John J. Hartican, a piece of metal was detached from the head of said •stay-bolts.”

*235Now, he has alleged that the boiler had been placed in an improper position for the work and for the workmen engaged upon it, and that he was directed by Hartican to work upon that boiler and that he was injured by the negligence of Hartican in directing him to perform such service while said boiler was lying in said position whereby said work was made dangerous as aforesaid, and while he was so engaged in said work, a piece of metal was detached from the head of one of said stay-bolts, and with. great force, violence and swiftness, struck and penetrated his right eye, destroying the sight of the same.

These averments, if you notice, are all of them a sort of recitation instead of the better and clearer way of averment. But passing that by, the objection is made, and the objection is, that the petition docs not set out the manner in which the work was to be done under the direction of the foreman; and secondly, that the detaching of the piece of metal and the flying of the same against the ■eye of the plaintiff, was the result of the imperfect and improper manner in which the boiler was placed.

It is argued on behalf of the plaintiff in error that they had no knowledge from that petition of the line of evidence that was to be followed by the plaintiff in establishing his case. That as a matter of fact when he came to place his case before the jury he offered evidence tending to show that what he was ordered to do was to stand upon this boiler while the work was to be performed, which brought him in a position where ha was directly over the work; and that in the performance of that work Hartican himself held an instrument or chisel known as a “set” against the stay-bolt while he was required to strike the “set” with a sledge hammer — the work being done was the loosening and taking out of a fire-box of a boiler.

He furthermore .offered testimony tending to show that in performing this kind of work, slivers were liable to become detached and fly in different directions, and especially that the tendency was to fly at right angles to the surface of the boiler from which the bolt was being cut, and that by reason of the fact that he was placed in the position he was, the liability was greatly increased.

He further offered testimony tending to show that the proper way was to have the boiler placed in such a position, that when the chisel was placeó and the blow gi\en, that if any slivers should fly, they would fly "downward and not strike the, person who was giving the blow.

The defendant claims that these facts, constituting the negligence, should have been set forth in. the petition so that they could have had knowledge of the line of evidence to be produced.

While it appears that evidence was given tending to prove that line of facts and that evidence was offered on the part of the plaintiff on this point, the defendant offered a large number of witnesses tending to show that it was equally safe to perform the work in the position in which the boiler was placed.

No objection was made that there was any variance, and the parties went to trial without any exceptions in that regard.

We had, perhaps two or three weeks ago, a case before us, from Sandusky county. It was a case of negligence against a railroad company, the title of the case being *N. Y., C. & St. L. R. R.*v. *Kistler,*and in connection with the pleadings in that case, the question came up as to the sufficiency of the allegations of the pleading of negligence, and our first impulse was to say that the pleading was defective. We, however, made an examination of the authorities, Judge Scribner making a very thorough investigation, and we were surprised to find that by a large concurrence of authorities that general allegations in a petition are sustained as against a demurrer and petition in error, and that the proper method of obtaining a fuller statement is by wav of motion to make the petition more definite and certain

*236Cunningham, *Mead & Mowen*and *Baldwin & Harrington,*for plaintiff in error.

*Parker & More,*for defendant in error.

My attention has been called this morning to *R. R. Co.*v. *Iron Co.,*46 O. S., 44. The first point in the syllabus is this:

> “ Indefiniteuess in pleading should be taken advantage of by motion and not by demurrer; so that where the language of a pleading will fairly admit of a construction that will sustain it as against a demurrer, it should, in the absence of a motion to make definite and certain, be so construed.”

In that case Judge Minshall says:

> ■ “A question arises *in famine*as to the proper construction of the pleading demurred to the answer and cross-petition of the defendant below. It is claimed that there is no averment that the goods were delivered by the plaintiff as in performance of the contract of subscription to the capital stock of the defendant. The averment is, that under said contract the defendant ‘applied’ for the goods charged in the account sued on, and received from the plaintiff said goods under and in performance of said contract. This must, as we think, be held to mean that they were delivered by the plaintiff as claimed by the defendant. They could not otherwise have been received from the plaintiff in pursuance of the contract. The most that can be claimed as to the averment is that it is indefinite. If so, then it should have been raised by motion and not by demurrer.”

Now, really, the averment here is that this boiler was left in a dangerous position for the performance of the work without stating detail, and that the plaintiff was directed to perform that work, and did proceed to assist the workman who ¿vas cutting the bolts, and that while he was so engaged in said work ana under the direction of said foreman, a piece of metal was detached that struck him in the eye.

We have, after a full examination of the authorities, come to the conclusion that under these authorities this allegation is sufficient to enable the party to offer his testimony, and we therefore hold that there it is no error in the case. We do it with some reluctance because we are very much of the opinion that pleaders should be careful to properly lay the foundation of their action and see that they get a full statement of their cause of action, so that the other party may be duly apprised of the case to be made against him. The judgment of the court of common pleas will therefore be affirmed.