Francis v. Humphrey

• Citation: 25 F. Supp. 1
• Decision Date: 02 November 1938
• Docket Number: No. 3139.,3139.
• Parties: FRANCIS v. HUMPHREY.
• Court: U.S. District Court — Eastern District of Illinois

25 F. Supp. 1

FRANCIS v. HUMPHREY.

No. 3139.

District Court, E. D. Illinois.

November 2, 1938.

N. Murry Edwards and Robert A. Harris, both of St. Louis, Mo., and Isaac K. Levy, of Murphysboro, Ill., for plaintiff.

E. F. Lowenstein, of Danville, Ill., and C. E. Feirich, of Carbondale, Ill., for defendant.

WHAM, District Judge.

The case is now before the court upon defendant's motion to dismiss for insufficiency each count of plaintiff's complaint under which she seeks to recover for personal injuries received by her in a collision which occurred on an Illinois highway between the defendant's automobile while being driven by defendant and an automobile owned and driven by plaintiff's sister while plaintiff was riding in the latter as a guest of the sister. The complaint, filed on May 28, 1938, consists of five separate counts.

While both the complaint and the motion to dismiss were filed prior to the effective date of the Federal Rules of Civil Procedure, there seems to be no reason to except the procedural steps in this action from the application of said rules. Federal Rules of Civil Procedure, rule 86, 28 U.S.C.A. following section 723c.

The ground of defendant's motion which will be first considered is that each of counts 1, 2, 4 and 5 of the complaint is insufficient for the reason that it contains no allegation that the plaintiff was, prior to and at the time of the collision complained of, in the exercise of due care and caution for her own safety. Defendant says that such allegation is essential to a statement of a claim upon which relief can be granted and without it the claim must be held insufficient and the count stricken.

Rule 8(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723(c), provides that a pleading which sets forth a claim for relief shall contain "* * * (2) a short and plain statement of the claim showing that the pleader is entitled to relief." (Italics mine.) Rule 12(b), 28 U.S.C.A. following section 723c, provides that a defendant may present by motion his defense that the plaintiff has failed in his pleading to state a claim upon which relief can be granted. (Italics mine.) It follows that under the new rules, as before, defendant's motion to dismiss must be sustained as to any count of plaintiff's complaint which fails to state a claim upon which relief can be granted and overruled as to any that states a claim upon which relief can be granted.

The law of Illinois is and has been that in a suit for damages based upon the negligence of another, plaintiff must not only allege and prove actionable negligence on the part of the defendant but he must also allege and prove freedom from contributory negligence on his own part. If this case were pending in a court of the State of Illinois, involving as it does an accident that occurred in Illinois, the complaint would be bad because it contains no allegation of due care on the part of plaintiff nor any other allegation from which it sufficiently appears that she was free from negligence contributing to her own injuries. Walters v. City of Ottawa, 240 Ill. 259, 88 N.E. 651; Stephens v. Illinois Central R. Co., 256 Ill.App. 111, 124, 125; Urban v. Pere Marquette R. Co., 266 Ill.App. 152, 164; Durbin v. McCully, 280 Ill.App. 81, 84; McDermott v. McKeown Transp. Co., 263 Ill.App. 325; Dee v. City of Peru, 343 Ill. 36, 174 N.E. 901.

The defendant insists that the federal court is bound in this case to apply the law of negligence and contributory negligence laid down by the Illinois courts in the decisions listed in the foregoing paragraph and in similar decisions. To support his contention he relies upon the recent decision of the United States Supreme Court in the case of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (decided April 25, 1938), which overruled the long prevailing doctrine of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, that upon questions of general law the federal courts are free, in the absence of a state statute or a local law, to exercise their independent judgment as to what the law is.

Prior to the decision in the case of Erie R. Co. v. Tompkins, supra, the law of negligence and of contributory negligence was uniformly held by the federal courts to be in the field of general law wherein the federal courts were not bound to follow the state decisions but were free to follow their own. The uniform federal rule was that contributory negligence constituted an affirmative defense and the plaintiff was not required to plead or prove due care, or freedom from contributory negligence as part of his case. Washington & G. Railroad Co. v. Gladmon, 15 Wall. 401, 405-408, 21 L.Ed. 114; Chicago Great Western R. Co. v. Price, 8 Cir., 97 F. 423; Cook Paint & Varnish Co. v. Hickling, 8 Cir., 76 F.2d 718; Central Vermont R. Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann. Cas.1916B, 252; Miller v. Union Pac. R. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285; Pokora v. Wabash R. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A. L.R. 1049. The last mentioned case arose in Illinois and though the Illinois rule then, as now, was directly to the contrary the Supreme Court said that the burden of proof was on the defendant to make out the defense of contributory negligence. And so the federal courts had held in Illinois from the beginning of the doctrine of Swift v. Tyson, supra.

But the decision in Erie R. Co. v. Tompkins, supra, has, legally speaking, "turned the world upside down." By that decision the independent body of so-called federal substantive law that had been built up through the years in the field of general law under the doctrine of Swift v. Tyson, supra, ceased to be controlling authority in the federal courts. Now each federal court must follow the substantive law of the state where the particular court is located or of the state where the action arose, as settled and declared by the courts of that state. Now the substantive laws of Illinois, as established by the decisions of her courts, as well as by her statutes, must be regarded as the controlling rules of decision in the trial of actions arising in that state in the federal courts. Erie R. Co. v. Tompkins, supra; Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290; Hudson v. Moonier, 304 U.S. 397, 58 S.Ct. 954, 82 L.Ed. 1422; New York Life Ins. Co. v. Jackson, 304 U.S. 261, 58 S.Ct. 871, 82 L.Ed. 1329; Rosenthal v. New York Life Ins. Co., 304 U.S. 263, 58 S.Ct. 874, 82 L.Ed. 1330. Under the decision in Erie R. Co. v. Tompkins, supra, the substantive law of Illinois relating to negligence and contributory negligence must be followed by this court in this case. Erie R. Co. v. Tompkins, supra; Hudson v. Moonier, supra.

But plaintiff says that the law in Illinois applicable to contributory negligence, in so far as it makes freedom from contributory negligence a part of plaintiff's case to be alleged and proved by plaintiff, is not a rule of substantive law but is a rule of adjective law, which deals with a procedural problem that is controlled by the provisions of Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which went into effect on September 16, 1938; that said rule, by specific terms, makes contributory negligence an affirmative defense which must be asserted by the defendant in a responsive pleading; that this court is bound by the rule and the plaintiff, having filed her case in this court, is relieved of the burden imposed by the law of Illinois of alleging and proving as part of her case due care and caution on her part. Said Rule 8(c) reads:

"Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation."

At first reading the rule seems to support the position of the plaintiff. In making application of this rule, however, consideration must be given to the statutory limitation on the scope and effect that can lawfully be given the rule.

The Act of June 19, 1934, § 1, U.S.C., Title 28, § 723b, 28 U.S.C.A. § 723b, which gave the United States Supreme Court its power and authority to prescribe general rules governing procedure in the federal District Courts in civil actions at law contains the provision: "Said rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant." U.S.C. Title 28, § 723b, 28 U.S.C.A. § 723b. If said Rule 8(c), a strictly procedural rule, be interpreted and applied so as to abridge or modify the substantive rights of the defendant or to enlarge the substantive rights of the plaintiff in this case, as established by the law of Illinois, the rule as thus interpreted and applied, is necessarily unauthorized and void.

Even without said statutory limitation upon the rule making power of the Supreme Court it would be necessary to consider the effect of this language of the court in Erie R. Co. v. Tompkins, supra, 58 S.Ct. 822: "Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or `general,' be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts." An interpretation of Rule 8(c) which will in effect do that which the foregoing language of the United States Supreme Court says is beyond the...