The opinion
On Petition for Rehearing.
Morris, J.
Counsel for appellant have filed a brief of great length, vigorously assailing the declared rule that in determining the sufficiency of a complaint, on demurrer, the court will consider facts fairly and reasonably inferable from those expressly stated.
14. It is contended that the rule of construction under our code is the same as at common law, and, tested by the common-law rule, the complaint here is insufficient. It cannot be conceded that our code rule is no more liberal than that of the common law. The contrary has been declared by this court. Malott v. Sample (1905), 164 Ind. 645, 648 , 74 N. E. 245 , and cases cited; Indiana, etc., Torpedo Co. v. Lippincott Glass Co. (1905), 165 Ind. 361, 363 , 75 N. E. 649 , and cases cited; Town of Newcastle v. Grubbs (1908), 171 Ind. 482 , 86 N. E. 757 . The rule of construction, under the code system, is stated as follows, in 4 Ency. Pl. and Pr. 755: “Even on demurrer, pleadings are to be liberally construed. The complaint on demurrer must be deemed to allege that which can be implied from the allegations therein by a reasonable and fair intendment. And a reasonable construction will be given although the facts are imperfectly or informally averred and argumentatively stated, or the pleading lacks definiteness and precision.” (Italics ours, throughout.)
*610 15. Were it conceded that the common-law rule governs, it warrants the drawing of fair and reasonable inferences from facts expressly pleaded. “The language of the pleading is to have a reasonable intendment, and construction; and where an expression is capable of different meanings, that shall be taken which will support the declaration, and not the other, which would defeat it.” 1 Chitty, Pleading (14th Am. ed.) 237; 1 Saunders, Pl. and Ev. 919; Stephen, Pleading 379; 4 Ency. Pl. and Pr. 759; 31 Cyc. 78.
Appellant’s counsel assert that as against a demurrer for want of facts a paragraph of complaint cannot be aided by intendments; that a defendant’s neglect of duty, etc., must be directly, specifically and positively averred, and cannot be shown by “recital, conclusion or inference”. It would appear to be counsel’s position that the correct rule would prohibit entirely resort to inference or implication; but in no event could such resort be justified unless the suggested inference is one necessarily arising from facts directly averred. Counsel say, “If, when a complaint is challenged by demurrer * * * the judge may consider facts # * * which do not appear except by way of inference, the judge who rules on the demurrer, and the judge who presides at the trial * * * may draw reasonable inferences directly opposite, and confusion and * * * chaos will be the inevitable result. ’ ’ A great number of Indiana cases are cited, the most important of which will be noted later. In dealing with treaties, constitutions, statutes, charters, contracts, wills, deeds and other written instruments, there is, and ever has been, since the beginning of civil government, resort to inference or implication. The limitations of the human mind, and the imperfections of human language are such that resort to implication is a fundamental necessity in the ordinary affairs of life.
In his treatise on the Federal Constitution, Story, in speaking of a supposed attempt'by the framers of the in *611 strument to positively enumerate the powers desired to he granted to congress says: “It must have embraced all future, as well as all present exigencies, and been accommodated to all times, and all occasions, and all changes of natural situation and character. * * * Who does not at once perceive that such a course is utterly beyond human reach and foresight ? It demands a wisdom never yet given to man; and a knowledge of the future which belongs only to Him whose providence directs and governs all. ’ ’ 1 Story, Constitution §1239. The same author, (1 Story, Constitution §433) asserts that the faculties of man are not competent to frame a system of government which would “leave nothing to implication”, and that a detailed list of all the necessary powers of a government, and the means of executing the same, could not be comprehended hy the human mind. The same learned jurist, (1 Story, Constitution §1244), says: “Such is 'the character of human language that no word conveys to the mind in all situations one single definite idea; and nothing is more common, than to use words in a figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended.”
To wholly prohibit resort to inference, in determining the sufficiency of a pleading, would at once result in the destruction of the system, and, notwithstanding some expressions to be found in certain opinions of judges, where words were used in a sense obviously not intended, it may be safely asserted that no court ever deliberately held, or intended to hold, that inferred facts may never be considered in determining, on demurrer, the sufficiency of a pleading. In cases cited by appellant, may be noted the following expressions: “It is an elementary principle that, in pleading, facts must be positively averred and not set out by way of recital, inference, or conclusion. ” Wabash R. Co. v. Hassett (1908), 170 Ind. 370, 378 , 83 N. E. 705 . “It has been repeatedly affirmed by this court that facts in a pleading must be posi *612 lively averred and not set out by way of recital, inference or conclusion.” Wabash R. Co. v. Beedle (1910), 173 Ind. 437, 445 , 90 N. E. 760 . “But, in determining the sufficiency of pleadings, only inferences necessarily arising from facts alleged will be indulged.” Rowan v. Butler (1908), 171 Ind. 28, 32 , 85 N. E. 714 .
Appellee cites the opinion in Antioch Coal Co. v. Rockey (1907), 169 Ind. 247, 254 , 82 N. E. 76 , which contains the following expression: “Appellant, by his demurrer to the complaint, conceded as true all the facts therein which were well pleaded, together with all the reasonable inferences which might be deduced from such facts.” The opinion was written by Jordan, J., who delivered the opinion in Wabash R. Co. v. Beedle, supra. In Town of Newcastle v. Grubbs, supra, 489 , it was said: ‘ ‘ The pleading is to be read in the light of all such ultimate facts as must necessarily be intended from the facts which are well pleaded. A complaint ought to be fadrly construed, and it is often the fact that matters of substance are shown by the very narrative of the manner in which an occurrence took place.” In support of the ruling, the court cites §385 Burns 1908, §376 R. S. 1881, which provides that in construing a pleading “its allegations shall be liberally construed, with a view to substantial justice between the parties. ’' 4 Ency. Pl. and Pr. 745, also cited in support of the ruling, declares: “Every reasonable intendment will be made in favor of the pleading, and this even though implications are resorted to, since what is necessarily understood or implied in a pleading forms a part of it as much as if it was expressed.” A consideration of the foregoing opinions compels the conclusion that it was never intended by this court to hold, that in determining the sufficiency of a pleading, on demurrer, resort may not be had to implication.
To hold that resort may not be had to inference, involves an absurdity. “The statement of the simplest fact embodies an element of inference. The most instant intuitive recog *613 nition of a familiar object necessarily connotes an act of reasoning.” 3 Chamberlayne, Mod. Law of Ev. §1801. See, also, same author, §1733a. A consideration of the opinions cited, in volumes 169, 170, 171 and 173 of our Indiana reports, compels the conclusion that this court never intended to declare any such fallacious rule.
Is the rule declared in the original opinion that resort may be had to inference, if “fair and reasonable”, from the facts stated, too broad in its scope, or should it be restricted to such inferences as are necessarily compelled? It has already been shown in this and the original opinion, that both at the common law and under the codes, the rule conformed to the doctrine declared here. Is the rule in Indiana more restrictive? Perhaps the particular distinction between “fair and reasonable,” and “necessary” inference, has not been presented to this court. Expressions similar to those quoted from cases cited by appellant’s counsel may be found in other eases which they cite, yet, in Douthit v. Mohr (1888), 116 Ind. 482 , 18 N. E. 449 , where the only error assigned was the action of the trial court in overruling a demurrer to the complaint, it was said: “It has been frequently held that a complaint upon a promissory note must show that the note remained unpaid at the time the action was instituted. Wheeler & Wilson Mfg. Co. v. Worrall [1881], 80 Ind. 297 . But this need not be in direct terms. It is sufficient if facts be stated from which it may be fairly inferred that the note remains unpaid. Downey v. Whittenberger [1877], 60 Ind. 188 . The fair inference from the facts stated in the complaint, in this case is, that the note remained unpaid when that pleading was filed.” This ruling was cited with approval in Malott v. Sample, supra, Evansville, etc., R. Co. v. Darting (1893), 6 Ind. App. 375 , 33 N. E. 636 , and Scott v. Lafayette Gas Co. (1908), 42 Ind. App. 614, 619 , 86 N. E. 495 .
In Barkley v. Mahon (1884), 95 Ind. 101, 103 , it was said: “It may be fairly inferred from the allegations in *614 the complaint, * * * that the sheriff set apart * * * the property as exempt. * * * An argumentative pleading may be so conclusive as to amount to an express allegation * * * when tested by demurrer. * * * The defect in such pleading can be reached only by motion to make it more certain.” In Wagoner v. Wilson (1886), 108 Ind. 210, 212 , 8 N. E. 925 , it was alleged in the complaint that plaintiff advanced and loaned $1500 to defendants, who “have refused to pay the plaintiff, though often requested so to do.” The court said: “This, though not a direct and explicit allegation that the money advanced remained unpaid, made it reasonably certain by inference that the sum advanced was due and unpaid at the time the complaint was filed.”
A consideration of the cases of Antioch Coal Co. v. Rockey, supra, and of the other cases above noted, does not warrant the conclusion that this court has adopted a rule, relating to inferences, more restrictive than the one recognized by the common law and»by the codes of other jurisdictions. It is not contended but that a court’s construction should be fair. If, in the discharge of such duty, resort to inference is proper, surely if the proposed inference is one that fairly and reasonably arises from the facts stated, it should be accorded the same effect as if arising from necessity. It is true that honest minds may draw different conclusions as to what is a reasonable and fair inference; the same may be said of a necessary one, for inference results from the exercise of the reasoning powers, and, in the last analysis, reason must, of necessity, be the final arbiter in all controversies over the proper interpretation of any written instrument.
16. It should not be forgotten that one against whom a pleading is directed has a remedy other than a general demurrer to render the pleading definite and certain, where it might be otherwise subject to varying construction. The special demurrer at common law, and the motion *615 to make more definite and certain (§385 Burns 1908, §376 R. S. 1881) under our code, perform that particular function, while the general demurrer is not designed to challenge the pleading for such defects, if it is certain to a common intent—that is, if it he clear enough “according to reasonable intendment.” Stephen, Pleading 379; Johnson Harvester Co. v. Bartley (1884), 94 Ind. 131, 132 ; Ohio, etc., R. Co. v. Collarn (1881), 73 Ind. 261, 265 , 38 Am. Rep. 134 , and cases cited. In the last-named case the court said: “There is no hardship in this rule of pleading. * * * If the defendant had desired a more specific statement of the negligence imputed to it, that end could have been attained by motion.”
17. Our civil code, enacted in 1852, was in the main, reenacted by the act approved April 7, 1881. Acts 1881 p. 240. It is asserted that the doctrine declared in the original opinion, to the effect that indirect averments by way of argument, ate., should be considered in determining, on demurrer, the sufficiency of a pleading, and that facts shall be deemed stated when fairly and reasonably inferable, is in conflict with the uniform rulings of this court prior to the enactment of 1881; that by such reenactment, the legislature of 1881, adopted the uniform construction of this court, and, consequently, such a construction, by adoption, became a part of the act. The doctrine of adopting judicial construction by reenactment of a statute is generally recognized. State v. Ensley (1912), 177 Ind. 483 , 97 N. E. 113 . However, the construction must be clear, and uniform. If the preceding decisions of the court have been antagonistic, it is evident the doctrine would be impossible of application.
Counsel have cited a great number of cases to show judicial construction prior to April, 1881, among which are the following: Sinker, Davis & Co. v. Fletcher (1878), 61 Ind. 276 ; Clark v. Lineberger (1873), 44 Ind. 223 ; Utica Tp. v. Miller (1878), 62 Ind. 230 ; Friddle v. Crane (1879), *616 68 Ind. 583 ; Johnson v. Breedlove (1880), 72 Ind. 368 ; Abell v. Riddle (1881), 75 Ind. 345 ; Day v. Vallette (1865), 25 Ind. 42 , 87 Am. Dec. 353 . Is the doctrine declared in the original opinion in conflict with the uniform rulings of this court prior to April, 1881 ? In Austin v. Swank (1857), 9 Ind. 109 , it was contended that a reply was bad, on demurrer, for lack of a material averment. The court held: “If it was necessary that the reply should contain that averment, we may say that it did so, in an argumentative form, which was sufficient upon a general objection.”
In Bell v. Eaton (1867), 28 Ind. 468 , 92 Am. Dec. 329 , in an answer to a complaint for a breach of marriage contract, it was alleged that defendant “learned that the plaintiff had been, prior to his acquaintance with her, delivered of a bastard child, and he avers that through the fraudulent concealment of the plaintiff he was, at the time of the making of said agreement, ignorant of the fact that the plaintiff had been so delivered of a bastard.” Sustaining a demurrer to the answer was held erroneous. On the objection that the answer was argumentative, it was said: “We must regard the argument as so conclusive as to amount to an express allegation of the facts, when tested by demurrer.” This case was never reversed nor criticised. In Coolmam v. Fleming (1882), 82 Ind. 117 , it was cited with approval, the court saying: “An argumentative pleading will not be held bad on demurrer.” In Bouslog v. Garrett (1872), 39 Ind. 338 , in a complaint on an account stated, it was alleged that “the defendant was indebted to the plaintiff in the sum of * * * for money found due from the said defendant to the plaintiff upon an account then stated between them; which said sum, together with the legal interest thereon, remains unpaid, for which he demands payment. ’ ’ In holding the complaint good, the court said: “It may be advisable, in such a paragraph, to allege an express promise to pay * * *. But we think this is impliedly included in the allegations of the paragraph in *617 question.” This case was never overruled, and was cited with approval in McDowell v. North (1900), 24 Ind. App. 435 , 55 N. E. 789 . In Downey v. Whittenberger (1877), 60 Ind. 188 , it was held, in a suit on a note, that the averment, “there is due” a specified sum, was a sufficient allegation that the note remained unpaid. This case was never criticised, and was approved in Douthit v. Mohr, supra.
In Mackenzie v. Board, etc. (1880), 72 Ind. 189 (Nov. Term, 1880), in holding a complaint. sufficient to repel a demurrer for lack of capacity to sue, the court said: “The name in which the plaintiff sued fairly implied that the plaintiff was a corporation, and this implication was sufficient to withstand the appellants’ demurrer for the second statutory cause.” In Indianapolis Sun Co. v. Harrell (1876), 53 Ind. 527 , it was urged that the complaint was defective for failure to allege that the defendant, named in the complaint as the “Indianapolis Sun Company”, was a corporation. The court held: “Suing or defending by such name impliedly alleges that it is a corporation.”
In Utterback v. Terhune (1881), 75 Ind. 363, 366 , in considering a widow’s complaint for partition, wherein it was alleged that she owned, as the widow of a named decedent, one-third of the land in dispute, the court said: “The allegation that she owned one-third of the land argtmentatively asserted that she was the first wife, or a subsequent wife having children by her husband, alive at his death.” In Ohio, etc., R. Co. v. Collarn, supra, 265 , an action for personal injuries, a complaint was held sufficient to repel a general demurrer. The eo-tirt in its opinion (by Worden, J.) said: “It is not certain from the allegation in what the alleged carelessness and negligence of the defendant in running the locomotive consisted; but the defect should have been reached by a motion to make the paragraph more specific.” In Snyder v. Baber (1881), 74 Ind. 47, 50 , it was held on general demurrer to a complaint that an allegation that defendant refused to account to plaintiff for the assets of *618 the firm, implied a demand. The court said: “It seems to us, that a demand for an accounting, before suit brought, is necessarily implied in and by this allegation. * * * The appellant’s remedy was a motion to make more specific, and not a demurrer for want of facts; for, when the appellant admitted, as he did by his demurrer, that he had refused to account to the appellee, he also admitted by necessary implication, that the appellee had demanded of him the accounting which he had refused.”
The last three cases cited were decided at the May term, 1881, and, consequently, after the reenactment of the code (April, 1881). Three of the five judges then constituting the court, Worden, Niblack and Howk, occupied the same position from January, 1877 to December, 1882, and during the time covered by the Indiana reports from volume 56 to 83 inclusive. Under such conditions, these later decisions are valuable in determining the attitude of this court, on the question in controversy, at, and before the reenactment. It is manifest that previous to the reenactment of the code of 1881, it had not been uniformly and consistently held by this court that indirect averments in a pleading would be entirely disregarded, nor that resort would not be had to inference, nor even that such resort should be restricted to that arising out of necessity, and consequently the rule in question is not applicable.
18. The doctrine declared in the original opinion does not admit of inference arising from speculation, eonjecture- or mere possibility; but that only which fairly and reasonably results from the facts stated. Perhaps an examination of the records in the many cases cited by appellant would disclose that in most of them the suggested inference was merely conjectural, and consequently that the conflict of rulings is more apparent than real. There seems to be some misapprehension, on appellant’s part, of the scope of the original opinion. It was not held therein, that the absence of a material averment from the *619 complaint, would, on demurrer, be deemed supplied by the curative statutes; neither was anything said on the subject of resorting to the evidence to cure the defects o>f the complaint. Counsel assert that even if “we go into the realm of inferences,” the interpretation, placed on the complaint is arbitrary and absurd. It is further asserted that the opinion is in violation of rules “as firmly fixed as the Ten Commandments or the Eoman Tables” and “rules well known to every lawyer qualified for admission to the bar. ’ ’
19. Our attention is drawn to three facts, which, in language noat free of asperity, counsel assert are wholly omitted from the complaint. These are as follows: (1) “The fact that the piece of slate or stone that fell, was loose, is not stated at all. (2) The fact that the mine boss either actually or constructively knew that the piece of slate or stone was loose, is not stated even defectively. (3) The fact that the mine boss failed to secure that pieqa of slate or stone is not stated in any form.” It is alleged in the complaint, that plaintiff’s injury resulted from the falling “from the roof of said room,” of a piece of slate weighing-one or two tons; it is averred, impliedly at least, that the roof of the room was defective and insecure, “and was in a condition to fall at any time * * * and injure * * * this plaintiff * * *.” That the whole of a thing includes all the parts thereof, is an axiomatic truth. If the entire roof was insecure and liable to fall, the portion thereof consisting of the piece which fell on plaintiff, was necessarily insecure and liable to fall. If appellant desired a more specific statement concerning the portion of the roof which fell on plaintiff, a motion therefor, rather than demurrer, afforded the appropriate remedy.
At the trial, appellant’s counsel, by its requested instruction No. 2, sought to have the jury told specifically what were the material allegations of the complaint. The requested instruction was given, and contains the following: “Plaintiff further alleges in his complaint that the mine *620 boss knew that prior to plaintiff’s injuries, that the piece of slate that fell upon and produced plaintiff’s injuries was loose, and insecure and defective, and was in a condition to fall at any time.” It would appear that at the time of the trial, neither counsel nor court, entertained any doubt about the proper construction of the complaint in reference to the second proposition now advanced by counsel.
Counsel here state (3rd proposition) that the fact that the mine boss failed .to secure that piece of slate or stone is not stated in any form. By said instruction No. 2, counsel said at the trial: “The plaintiff in his complaint, * * * charges that the defendant company was negligent, in that it failed, by and through its mine boss to visit and examine the roof of room No. 7 * * * and in negligently failing to discover that the piece of slate that fell and produced plaintiff’s injuries was loose, and in failing to discover and make secure the roof of said room, by taking dotvn said loose and dmgerous piece of slate or stone, * * * . I instruct you gentlemen, that these allegations in plaintiff’s complaint are material allegations, and before you are authorized to return a verdict for the 'plaintiff * * * you must find * * * that the defendant * * * was negligent in failing to have its mine boss visit said room * * * or that the defendant company was negligent in that it had notice * * * through its mine boss, or otherwise that the roof of said room * * * was defective, and had notice and knowledge that said piece of slate or rock * * * was loose cmd liable to fall * * * and that defendant with such knowledge * * * of the loose condition of said slate and its liability to produce injury, failed to take down, or secure said loose slate, * * *. ” It is manifest that when the cause was tried, both court and counsel discerned in the complaint an allegation of failure to “secure that piece of slate”. It is proper to say that appellee has not invoked the doctrine of estoppel to bind appellant to the theory of the cause espoused by it in the trial court. *621 The reference is made to the record to show that the construction of the complaint, adopted by this court, differs in no material respect from that adopted by appellant’s learned and experienced counsel, at a time, when, in the faithful discharge of their duties to court and client, a critical analysis of the complaint was required. This interpretation, concurred in by the trial court, appellant’s counsel, and this court, is manifestly the one that would be adopted by persons of common understanding. §343 Bums ■ 1908, §338 R. S. 1881. No doubt, in the lapse of time since the trial, counsel have forgotten the views of the complaint then entertained by them; otherwise it must be presumed that much of the present brief would have been eliminated.
The complaint, notwithstanding its surplusage, and unskillful construction, avers sufficient facts to constitute a cause of action; and this, whether tested by common law or code rule. Petition overruled.
Note.—Reported la 100 N. E. 675 , 102 N. E. 99 . See, also, under (1) 31 Cyc. 79, 92, 101; (2) 31 Cyc. Id; (3, 19) 26 Cyc. 1386; (4) 31 Cyc. 763, 769; (5) 3 Cyc. 444; (6) 38 Cyc. 1612; (7) 38 Cyc. 1782, 1787; (8) 3 Cyc. 248; (9) 2 Cyc. 672; (10) 38 Cyc. 1778, 1782; (11) 38 Cyc. 1809; (1.2) 26 Cyc. 1491; (13) 38 Cyc. 1419, 1425; (14, 18) 31 Cyc. 79; (16) 31 Cyc. 644; (17) 36 Cyc. 1152, 1153. As to the liberality of the code, as contrasted with, common, law, in construing pleadings, see 57 Am. Dec. 549 .