Metyanczyk v. Szych ( 1928 )

LLOYD,J.

We are unable to see upon what reasoning the trial judge concluded that the petition of the plaintiff did not state facts sufficient to constitute a cause of action, in view of the allegation therein that “the defendant assaulted and beat and .struck her with a hammer and otherwise”. There is nothing in the pleadings to indicate whether the plaintiff was or was not married and if she were married and this fact was admitted in the pleadings, no motion having been made to make the petition definite as to the injuries of which she complained or to strike therefrom such allegations as’were claimed to be immaterial, sufficient facts to create a cause of action having been alleged, she would be entitled to a verdict for the injuries, if any, sustained by her for which the law permits a recovery.

Since the petition alleged facts sufficient to constitute a cause of action, and the evidence offered by plaintiff at the trial tended to prove the facts so alleged, it seems to us apparent that the trial judge was wrong in his conclusion.

Richards and Williams, JJ., concur.