HIXON v. NIMAN, 88 Ind. App. 630 (1929)

165 N.E. 82

HIXON v. NIMAN.

No. 13,396.Court of Appeals of Indiana.
Filed February 20, 1929.

PLEADING — Demurrer to Paragraph of Answer — Argumentative Denial. — There is no error in overruling a demurrer to a paragraph of answer pleading facts which amount to an argumentative denial of the allegations of the complaint.

From Marion Superior Court (A41,692); Byron K. Elliott,
Judge.

Action by Claude Edward Hixon against Seth C. Niman. From a judgment for defendant, the plaintiff appeals. Affirmed. By the court in banc.

Walter O. Lewis, for appellant.

L.R. Zapf, for appellee.

LOCKYEAR, J.

This was an action by a minor, Claude Edward Hixon, by his next friend, Claude Hixon, Sr., the father of said minor, for personal injuries received by the minor, consolidated with an action by the father against same defendant, Seth C. Niman, the appellee herein, for loss of services of said minor and for amounts paid out on account of the injury to him, said minor.

Claude Edward Hixon was a boy about ten years of age, and was riding on a bicycle with another boy along Central avenue, in the city of Indianapolis, Indiana. The appellant was on the front part of the bicycle with his companion sitting behind the appellant and operating the bicycle.

The appellee was driving a truck along said street and to the left of the boys on the bicycle going in the same direction. Another automobile was parked on the right-hand side of the street, and when the bicycle swerved to the left around the parked car, a collision occurred between the bicycle and the appellee’s truck, whereby the appellant, Claude Edward Hixon, was injured.

The appellee filed an answer in two paragraphs, the

Page 631

first in general denial, and a second paragraph setting out a detailed statement of facts and circumstances of the collision and denying that the appellee was in any manner negligent; and that the collision was caused solely by the negligence of the appellant, Claude Edward Hixon, and his companion on the bicycle.

There was a trial before a jury with a verdict and a judgment for the appellee.

A demurrer was filed to this second paragraph of answer, which was overruled, and this ruling of the court is the only error assigned.

An examination of the second paragraph of answer shows it to be only an argumentative denial of all the material facts of the complaint, and, therefore, it was not error to overrule the demurrer to it. Such an answer, being equivalent to a general denial, is good, and not subject to demurrer.

Oren v. Board, etc. (1901), 157 Ind. 158, 60 N.E. 1019 Hiatt v. Town of Darlington (1899), 152 Ind. 570, 53 N.E. 825; Leary v. Moran (1886), 106 Ind. 560, 7 N.E. 236 Clauser v. Jones (1885), 100 Ind. 123.