Lapp v. Stanton

Urner, J., delivered the opinion of the Court. In this ease the only questions for review are raised by a demurrer which denies the sufficiency of two counts in the ¹⁹⁸ declaration. There are preliminary averments in each count to the effect that the defendant occupied and used for saloon purposes a room and the cellar under it in a building in Frostburg known' as Moat?s Opera House, and 'that the plaintiff, in the year 1907, became the owner of the building and moved into it with his hardware store and occupied the room and cellar adjoining those in'the possession of the defendant. The first of the counts then alleges: “That from the 1st day of May, 1908, to the 1st day of May, 1910, the defendant, while occupying said room and cellar and keeping a saloon in .same, continued tq-.run great quantities of filthy and foul water from his cellar into the plaintiff’s cellar, damaging large quantities .of merchandise, rusted, a lot of pipe and other material, damaged the heating plant and caused the plaintiff a lot of unnecessary work and trouble.” In the other count it is alleged, that. “there was a large lot behind the room occupied ¡by the plaintiff and belonging to the plaintiff which he used to .store stock .upon and in the sheds and stable upon said lot,” and “that from the 1st day of May, 19093 to the 1st day of May, 1910, the defendant kept a lot of game chickens which continually trespassed upon the plaintiff and roosted in the said sheds and stable and damaged new wagons, plows and other stock' kept by the plaintiff on said lot, and in said sheds and stable.” There was a claim'of damages connected with the counts.

The demurrer was overruled, a plea of not guilty was filed, and the case was tried on the facts resulting in a verdict and judgment in favor of the plaintiff. It is urged, as an objection common to both the counts, that the allegations do not inform the defendant whether he is charged with a tort or with a breach of contract. The further criticism is offered as to each that it does not sufficiently allege the right of the plaintiff in the premises, or the nature of the injury, or the fact that it was committed by the defendant. With respect to the second of the two counts quoted it is specially objected that it fails to describe the ¹⁹⁹ close upon which the treaspass is alleged to have occurred, or to charge a breaking and' entering of the close, or to ■describe how the damage complained of was produced.

In considering questions like the present we must be guided by the statutory provision that: “Any declaration which contains a plain' statement of the facts necessary to constitute a ground of action shall be sufficient.” Code, Art. 15, sec. 3. It has been held, in view of this enactment, that the substance rather than the form of the pleading is the controlling consideration. Gott v. State, use of Barnard, 44 Md. 336; Crichton v. Smith, 34 Md. 47. The Code itself permits a departure from the forms of pleadings it contains “so long as substance is expressed.” Art. 75, sec. 24.

The declaration must, of course, state the cause of action “with such a reasonable degree of certainty as will give fair notice to the defendant of the character of the claim or demand made against him, so as to enable him to prepare for his defence.” 1 Poe on Pleading and Practice, sec. 562; Jeter v. Schwind Quarry Co., 97 Md. 698 ; Anne Arundel Co. v. Carr, 111 Md. 148 ; Pearce v. Watkins, 68 Md. 538 . But the inquiry