
    Gibson v. Sabina Lodge No. 1244, Loyal Order of Moose.
    (No. 20059
    Decided March 16, 1967.)
    Common Pleas Court of Clinton County.
    
      Mr. Frederick J. Buckley and Mr. James P. Miller, for. plaintiff
    
      . Messrs. Harshman, Young, Colvin & Alexander and Mr. Robert C. Alexander, for deféndant.
   Swain, J.

On motion for order to require plaintiff to make petition definite and certain and on motion to strike words from petition.

Plaintiff asks for damages for alleged injuries sustained as result of a bowling ball striking her as she entered defendant’s premises through doorway, stating “That said bowling machine was caused to be placed by defendant in such close proximity to said doorway that said doorway was a dangerous place for persons to pass through when said bowling machine was being operated or played. ’ ’ Plaintiff later says: ‘ ‘ Prior to such injuries plaintiff was in good health and performed all of the duties normally required of a wife.”

Defendant moves (1) for an order to require plaintiff to amend her petition by making the first part above quoted: “definite and certain by stating facts as to the location of the ‘bowling machine’ rather than a legal conclusion as to it being in a ‘dangerous place’.”, and (2) to strike the second part above quoted from the petition as the same is “immaterial.”

(1) May the word “dangerous” or the words “dangerous place” be properly used in a pleading to describe a condition existing in or on the premises of the other party, or to describe something under such other party’s control?

Defendant is apparently relying upon the case of The N. Y., C. & St. L. Rd. Co. v. Kistler (1902), 66 Ohio St. 326, 64 N. E. 130, where in opinion it is said: “The court also erred in refusing to strike out the words, ‘at a high, immoderate and dangerous rate of speed’.” This thought is carried into the third paragraph of the syllabus, where it is held: (If) “there are facts and circumstances which, when taken in connectoin with a high rate of speed, would make such speed an element or factor in constituting negligence,” then “in such cases such facts and circumstances should be pleaded.”

This case and the case of The B. & O. Rd. Co. v. Lockwood (1905), 72 Ohio St. 586, 74 N. E. 1071, were discussed in Richards v. Farm-Orama Associates, Inc. (1965), 3 Ohio Misc. 13; 32 O. O. 2d 244; 206 N. E. 2d 239, where it was shown that these two cases were contrary to the long established rules of pleading and of the admissible evidence under the pleadings, under the Common Law and under the Code of Civil Procedure in Ohio.

These two cases were among those critically mentioned in the consideration of Proposal 184, “Change in Judicial System,” in the Constitutional Convention of 1912, in which cases, judgments for individuals against corporations, after being affirmed by the circuit courts, had been reversed by the Supreme Court. While this Convention was able to correct many of the things of which complaints were made, by submitting amendments that were approved by the voters, such as: that authorizing enactment of laws relating to labor (Article II, Section 34, of the Ohio Constitution); the original section as to workmen’s compensation (Article II, Section 35); and the restriction upon the power of the Supreme Court to declare laws unconstitutional (in Article IY, Section 2), nothing, of course, could be done to correct the damage done to rules of pleading and the rules of evidence in courts, by these two cases.

The nadir in the history of the Supreme Court was probably the period in which Kistler and Lockwood were decided, and as these two cases were contrary to the well established rules of. pleading and of evidence in this state, they (and all cases based on or following them) must be disregarded as precedents for pleadings or for evidence in trials, and the rules stated in those cases must be confined to them alone.

In “Swan’s Pleading and Precedents” (1860, republished in 1867), by Hon. Joseph H. Swan, on pages 421-422, Form 148, the word “dangerous” is used in form for negligence action to describe the condition of a street, as follows: “The defendant # * * so carelessly and negligently filled up and leveled said trenches, and left the said street in so dangerous and improper state * * *.”

In “Nash’s Pleadings and Practice” by Hon. Simeon Nash, in Fourth Edition (1874), in Yol. 1, page 501, Form 175, the following is found in form for negligence action: ‘ ‘ * * * the said defendant carelessly and negligently managed said station, and so carelessly and negligently kept the staircase and approaches thereto in a dangerous and slippery state and condition * *

The premises of the defendant herein were under its control, and it now asks the court to order plaintiff to enter upon its premises to ascertain the conditions that there exist and then to describe the same in an amended petition, when this defendant already has knowledge of the conditions there and of the placement of the “bowling machine,” and it can measure its own premises, without plaintiff trespassing thereon.

Such a statement as defendant now requests was not required even under strict common law pleading. One of the leading works, if not the leading work, on common-law pleading is' “Chitty’s Pleadings,” originally by Joseph Chitty, Esq., of the Middle Temple, barrister at law, first edition, 1808. In “Chitty’s Pleadings,” (Tenth American Edition, from Sixth London Edition) (1847), in Yol. 1, on pages 233-235, it is said: “The principal rule, as to the mode of stating the facts, is, that they must be set forth with certainty; by which term is signified, a clear and distinct statement of the facts which constitute the cause of action or ground of defense, so, that they may be understood by the party who is to answer them, * * *, and by the court who are to give judgment. * * * Less certainty is requisite when the law presumes that the knowledge of the facts is more properly or peculiarly in the opposite party. * * * So, less cer-' tainty is required, and general words are sufficient, where it is to be presumed that the party pleading is not acquainted with' the minute circumstances.”

The words “dangerous place” to which this motion is directed were proper in pleadings at common law and are proper. in pleadings under the Code of Civil Procedure. The word “dangerous” or the words “dangerous place” may properly be used in pleadings to describe a condition existing in or on the' premises of the other party, or to describe something under the' control of the other party.

The statement in a pleading that a place is a “dangerous place” speaks for itself and is proper pleading.

The rule set out in Kistler opinion as to striking words from the petition must be disregarded, and the rule set out in the Kistler syllabus as to pleading the facts and circumstances must be diregarded also, as neither of these was good law when announced, and such rules must be confined to that case alone, and disregarded as precedents.

The first motion that the court order plaintiff to make her petition definite and certain must be overruled.

(2) Defendant claims that the words requested to be stricken are “immaterial.”

Webster’s Third New International Dictionary (1961), defines “immaterial” as: “3a: of no substantial consequence:— unimportant; b. not material or essential to a legal matter or case.”

Section 2309.33, Revised Code, states, in part: “If redundant, irrelevant, or scurrilous matter is inserted in a pleading, it may be stricken out on motion of the party prejudiced thereby. * * *.”

This rule has had little change since enacted as part of Section 118, Code of Civil Procedure, 51 Ohio Laws 57, 75, effective July 1, 1853.

Defendant has failed to cite any authority in support of this motion, although this provision has been in the law of civil pleadings for over one hundred years. Defendant has made no effort to show any prejudice to it because of this wording.

And if the wording is of “no substantial consequence” or “unimportant,” how could the same be prejudicial?

Words or phrases are not “prejudicial,” merely because a party might claim them to be such. This has been well stated as to a claim of “prejudicial evidence,” which statement could be paraphrased to apply to a claim of “prejudicial words” in a pleading:

‘ ‘ The fact that the evidence is prejudicial does not make it incompetent. All the evidence which plaintff introduced to make out a case was necessarily prejudicial. If such evidence was excluded because it had a prejudicial tendency against the defendant (that is, if it tended to influence the jury to render a verdict in favor of the plaintiff), then plaintiff could never make out a case.” Ingram v. Prairie Block Goal Co. (1928), 319 Mo. 644, 5 S. W. 2d 413, 418.

This motion of defendant is frivolous and without merit.

The second motion must be overruled. 
      
       “Chitty’s Pleadings” (Tenth American Edition, from Sixth London Edition), (1847), in Vol. 1, on pages 213, et seq., states:
      “Pleading is the statement in a logical and legal form of the facts which constitute the plaintiff’s cause of action, or the defendant’s ground of defense; * * * In general, whatever circumstances are necessary to constitute the cause of complaint or the ground of defense, must be stated in the pleadings, and all beyond is surplusage; * * * 4thly. It is not necessary to state in pleading mere matter of evidence.
      “Although any particular fact may be the gist of a party’s case, and the statement if it is indispensible, it is still a most important principle of the law of pleading, that in alleging the fact, it is unnecessary to state such circumstances, as merely tend to prove the truth of it. The dry allegation of the fact, without detailing a variety of minute circumstances which constitute the evidence of it, will suffice. * * * This rule may indeed be difficult in its application, but it has been rightfully said, that it is so elementary in its kind, and so well observed in practice as not to have become frequently the subject of illustration by decided cases, and (for that reason probably) is little, if at all noticed in the digests and treatises.”
     
      
       In “Bliss on Code Pleading” (“A Treatise upon the Law of Pleading under the Codes of Civil Procedure of the States of New York, Ohio, Indiana, Kentucky, Wisconsin, Minnesota, Iowa, Missouri, Arkansas, Kansas, Nebraska, California, Nevada, Oregon, Colorado, North Carolina, South Carolina, and the Territories of Dakota, Wyoming, Montana, and Idaho”), by Prof. Philemon Bliss, of Missouri State University, late Judge of the Supreme Oourt of Missouri, in the First Edition (1879), on pages 222, et seq., is found: “Chapter XIII, Rules governing the Statement: 1. What should not be stated. * * * Rule Y. Evidence should not be pleaded. * * * Rule VI. Conclusions of law should not be pleaded. * * * specific acts constituting negligence can seldom be directly shown, but it is presumed from injuries which, ordinarily, result only from negligence. The driver upsets a stage-coach and breaks a passenger’s arm. Careful driving will hardly have such a result; the passenger knows there has been negligence, but he will not be likely to know in what it consisted. The driver might have been drunk or asleep; he might have so harnessed the horses that they would not obey the rein, or might have made them unmanageable by improper treatment. The plaintiff can only prove that the coach was turned over; the presumption is, prima facie, that it was the result of some negligence. And when there is an obligation to take care of goods intrusted to one’s charge; if they are injured, the presumption is that it was the result of negligence. So, when a railroad locomotive sets fire to fields or buildings along the track, the sufferer cannot tell in what the negligence consists — whether there is a defect in the furnace or carelessness in its management; some negligence is presumed, and it must, of necessity, be alleged generally.”
     
      
       See “Ohio Constitutional Convention — 1912—Proceedings and Debates,” in the debate on Proposal 184, “Change in Judicial System,” the remarks of Delegate D. F. Anderson (lawyer), of Mahoning County, member of Committee on Judiciary and Bill of Rights, in Vol. II, pages 1092-1095.
     
      
       The particular wording, in the Amendment submitted to the voters of Ohio, at Special Election on September 3, 1912, and approved by them, as to the restriction upon the power of the Supreme Court to declare laws unconstitutional (and still in Article IV, Section 2, as amended November 4, 1944) reads as follows:
      “No law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the court of appeals declaring a law unconstitutional and void.”
      This provision that strengthens a little the presumption that a duly enacted law in Ohio is constitutional was well debated and well considered. The following remarks of Delegate Hiram D. Peck (lawyer), of Hamilton County, Chairman of the Committee on Judiciary and Bill of Rights (who was a former Judge of the Superior Court of Cincinnati, 1883-1889, and member of firm of Peck and Shaffer since 1889), are worth quoting: see “Constitutional Convention — 1912—Proceedings and Debates,” Vol. I, page 1028):
      “Now we come to some provision about which there has been some discussion and controversy. * * * begin with line 26: — and no statute adopted by the general assembly shall be held unconstitutional and void except by the concurrence of all the judges of the supreme court.
      “* * * the committee, having all the matters before it and having this matter under consideration at several different meetings, finally came to the conclusion to let that stand as it is. The reasons assigned were that there has been too much of this thing of off-hand setting aside of legislation of the state by the supreme court. There have been too many judgments that have been made by the court which seem to the people not well grounded, in view of existing circumstances, and which operate as stumbling blocks to progress, upsetting statutes which were desirable in themselves, and for that reason we decided to let the provision remain as it is. A case comes into court. Here is an act of the legislature that has been adopted by the house after the usual discussion and has passed through the senate also after the usual discussion. Those bodies contain lawyers, and those things are considered as they usually are considered, and now, after full consideration, adoption by the legislature and approved by the governor, it goes to the supreme court in litigation. The court divides and four of them say that law is unconstitutional and two of them say, “No, we think it is all right.” Two men of that majority upset all the others — the general assembly, the governor and their two colleagues. Looking at it in that way we don’t think it is right. If the supreme court were of an odd number, one man would overcome all the judgment ot tne legislative bodies and the governor, and we don’t think that sort of thing is right.”
      Keference to many laws that had been declared unconstitutional by the Supreme Court is made in many places in the debates, and statement as to some of such decisions was made by Delegate Harry D. Thomas (carpenter) , of Cuyahoga County, (Member of the Committee on Labor, of the Com-rrvi+1pp on Legislative and Executive Departments, and of others), (“Constitutional Convention — 1912—Proceedings and Debates,” Vol. II, page 1117)', as follows:
      “The delegate from Mahoning made reference in one of his answers to questions to the fact that the Ohio supreme court, previous to the passage of the Norris and Metzger acts, practicaly nullified every safety law made for the protection of the workers in this state by their decisions on assumed risk, contributory negligence and fellow-servant rule. As a verification of his answer all you have to do is to refer to the nullificaton of the Sanford act, passed in 1890, by the decision of the Supreme Court on the fellow-servant rule; the Dunlap law on assumed risk, that was practically nullified in the same manner; the provision of the miners’ safety law referred to; the miners’ right of action where laws are not complied with by the company, section 3365; the guarding of rails and frog safety laws; providing guards for machinery in factories and workshops; the Norman case; the law that no child can be employed around dangerous machinery; the Jacobs case.
      “In reference to other laws passed for the benefit of the workers it is only necessary to call attention to the fact that the eight-hour law for public work was declared unconstitutional, the ten-hour law for train men declared unconstitutional, the law passed to regulate the sale of conwlct-mad'-goods declared unconstitutional, the right of the poor litigant to attorney f"p.s in appealed cases declared unconstitutional, the law weighing coal before screening for the coal miners; and the mechanic’s lien law.”
     