
    FAILURE TO ALLEGE NEGLIGENCE WAS NOT THAT OF A FELLOW EMPLOYE.
    Common Pleas Court of Hamilton County.
    John H. Janszen v. The L. P. Hazen Company.
    Decided, May, 1910.
    
      Pleading_Where a Corporation is Charged with Negligenoe — Presumption That the Negligenoe Complained of Was That of the Company.
    
    In an action against a private corporation by an employe on account of injuries alleged to bave been due to negligence on the part of tbe company, the court is bound to presume that the breach of duty complained of was the breach of the company and not of a fellow employe, and the petition is not fatally defective because of failure to allege that the negligence was not that of a fellow employe.
    
      Reeve, Burch, Peters; <& Oppenheimer, for plaintiff.
    
      Berman & Rogers, e’ontra.
   Dickson, J.

This is an action brought by an individual against a private corporation for alleged personal injuries received as an employe, caused by the negligence of the company. The demurrer to a former petition was sustained and leave given to file an amended petition, which has been done. Defendant now moves to strike this amended petition from the files for three reasons:

First. That this amended petition is in effect the same as the original petition. This reason is not well taken.

Second. That the amended petition is “open to a motion to make more definite and certain.” This reason is not ground for any such relief as desired. If the new pleading be susceptible to such motion, it must be made, not contemplated.

Third. That the facts stated do not constitute a cause of action. This reason is properly the subject of' a demurrer and will be considered as such.

The defendant company complains that being a corporation it could not do or fail to do any act, except by an employe or servant, and that it is the duty of the plaintiff to cause it to appear in its pleading that the neglect complained of was not the act of a fellow employe or servant, and for the want of such an allegation the petition is fatally defective.

The law rightly presumes that the attorney for the plaintiff, or the attorney for any party, will not encumber the dockets of the court with a case when he knows that his client does not have a cause of action. Hence, the court is bound to presume that the breach of duty complained of here was not the breach of a fellow-servant.

Motion overruled.  