Reuter v. Schneider

Heard on motion to require petition to be made more definite and certain.

The motion seeks to require plaintiff to designate the machine alleged to have been defective and out of repair, etc.; and to designate also the defects and particulars of the want of repair. Also, to designate more particularly the “certain, bones” of the body of plaintiff alleged to have been broken, etc.

In R. R. Co. v. Kistler, 66 O. S., 326 (333), the rule of Davis v. Guarnieri, 45 O. S., 470, is repeated and emphasized, namely, that the allegations as to negligence must be of the facts — “the acts of commission and omission claimed to have caused the injury, so as to advise the defendant as to the facts claimed to have been negligently done or omitted and enable it to meet the same. Upon the trial the evidence should be confined to the acts of negligence so specifically and definitely averred in the petition.”

This, moreover, is in accord with the code provision requiring the pleader to state the facts constituting the cause of action. The statement of negligence is the legal con*452clusion and not the primary fact required to be pleaded.

The same rule applies to the particulars of the injury claimed as the basis of the action (see also, Ry. v. Lockwood, 72 O. S., 586).

Motion granted.