Armstrong v. Billings
| Decision Date | 19 December 1929 |
| Docket Number | 6543. |
| Parties | ARMSTRONG v. BILLINGS. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; Robert C. Stong Judge.
Action by E. M. Armstrong against J. J. Billings. Judgment for defendant, and plaintiff appeals. Affirmed.
H. C Crippen, of Billings, for appellant.
Brown Wiggenhorn & Davis, of Billings, for respondent.
The plaintiff has appealed from a judgment, entered on a directed verdict, in favor of defendant.
The plaintiff, E. M. Armstrong, alleges that he was employed by the defendant, J. J. Billings, to work on a sheep ranch in Wyoming and that, on March 11, 1927, he was furnished, for work in the course of his employment, a team of horses, one of which was "a dangerous, unruly, vicious bronco, not thoroughly broken"; that the defendant knew, or in the exercise of reasonable care should have known, the character of this horse, yet neither the defendant nor his agent in charge of the ranch advised plaintiff of its character, and that he had no knowledge or means of knowing the facts. The complaint then alleges that, while plaintiff was driving the team the "bronco" began to buck, frightened the other horse, and both became unmanageable and ran away, and "that while so running away the plaintiff saw immediately in front of said team of horses, and for which the team was headed, a deep ditch or water course; that fearing he would be killed or at least seriously injured, and acting solely because of such fear, the plaintiff jumped from the wagon" and was seriously injured.
The defendant interposed a general demurrer to the complaint, which was overruled, and thereupon answered. The answer denies that plaintiff was employed by defendant, and alleges that plaintiff was injured "in the course of his employment by one Paul Warfel, and not otherwise." The answer contains four alleged affirmative defenses, two of which allege assumption of risk and two contributory negligence. Plaintiff moved to strike each of the affirmative defenses on the ground that all were irrelevant and redundant, which motion was overruled. Plaintiff then replied denying the affirmative matter in the answer.
On the issues as framed the parties proceeded to trial before the court and a jury duly impaneled. When the first witness was sworn, defendant objected to the introduction of any testimony on the ground that the complaint did not state facts sufficient to constitute a cause of action, which objection was overruled. At the close of plaintiff's case, defendant moved for judgment of nonsuit upon the grounds, among others, that the complaint is insufficient and the evidence would not warrant a verdict in favor of plaintiff; this motion was overruled, and defendant introduced his evidence. At the close of all the evidence defendant moved the court for an instructed verdict on the grounds urged for judgment of nonsuit; this motion was granted, and verdict and judgment in favor of defendant followed.
Plaintiff has appealed from the judgment; he predicates error upon the court's action (1) in denying his motion to strike the alleged affirmative defenses, (2) in directing a verdict for defendant, and (3) in entering judgment in favor of defendant.
In argument of his second and third specifications of error, counsel for plaintiff invokes the rules that (a) a motion for directed verdict should not be granted unless an essential averment has been omitted from the complaint and thereby the defendant has been misled to his prejudice, and then only if he has not supplied the necessary facts by his own evidence ( Johnson v. Chicago, Milwaukee & St. Paul Ry. Co., 71 Mont. 390, 230 P. 52); (b) the complaint must be liberally construed with a view to substantial justice between the parties, and the court must disregard any error or defect which does not affect the substantial rights of the parties ( Boyd v. Great Northern Ry. Co., 84 Mont. 84, 274 P. 293); (c) the idea that a disappointed litigant who has had a fair and impartial trial upon the merits of the cause may obtain a new trial because of the absence of nonessential allegations, or for some mere defect in pleading, is archaic and has been relegated to the past in this jurisdiction ( Davis v. Freisheimer, 68 Mont. 322, 219 P. 236); and (d) that, even if error is committed in overruling a demurrer, it is error without prejudice unless the demurring party was misled by the defects and the case is not fairly tried on the merits. McManus v. Butte Electric R Co., 68 Mont. 379, 219 P. 241.
These rules are reaffirmed and will be applied in all cases where applicable, but here the rules stated do not apply for the reason that the defendant challenged the sufficiency of the complaint at every stage of the proceeding by general demurrer, by objection to all evidence, by motion for judgment of nonsuit, and motion for a directed verdict.
The demurrer considered in the McManus Case was for uncertainty; answering over after the overruling of such a demurrer waives the defect (McQuay v. McQuay, 81 Mont. 311, 263 P. 683; Flint Creek Lodge v. Brown, 81 Mont. 573, 264 P. 394), and therefore the rule as to supplying defects by evidence was applicable; but answering over after general demurrer for insufficiency of facts does not waive the defect in the complaint, if one exists, and the objection, taken by demurrer or objection to the introduction of any evidence, saves the question for all purposes (Boyle v. Chicago, Milwaukee & St. Paul Ry. Co., 60 Mont. 453, 199 P. 283; Wells-Dickey Co. v. Embody, 82 Mont. 150, 266 P. 869), and it cannot thereafter be said that the defect is cured by the introduction of evidence. Further, if the complaint does not state facts sufficient to constitute a cause of action and is challenged for that defect before evidence is introduced, it cannot be said that the omitted matter is "non-essential" or the "mere defect" in pleading referred to in Davis v. Freisheimer, above. Dickason v. Dickason, 84 Mont. 52, 274 P. 145.
While pleadings are to be liberally construed, and whatever is necessarily implied or reasonably inferred from the allegations made is to be considered as directly averred ( Grasswick v. Miller, 82 Mont. 364, 267 P. 299; State ex rel. Hahn v. District Court, 83 Mont. 400, 272 P. 525; Cook v. Galen, 83 Mont. 334, 272 P. 250), the court cannot supply essential averments neither alleged nor inferable from the allegations made.
Had the court, consistent with its former rulings, denied the motion for directed verdict, and had plaintiff recovered judgment, the first question presented would have been as to whether the complaint was sufficient to withstand the attack by general demurrer and objection to the introduction of any testimony, and here, in determining the sufficiency of the judgment entered, that question should first be considered.
The sufficiency of the complaint before us is challenged by the assertion that it shows on its face that the injury suffered by plaintiff resulted from his own contributory negligence, which bars recovery unless by his pleading he exculpates himself from the effects thereof, and this he has not done.
Since Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450, it has been the doctrine in this jurisdiction that contributory negligence is a matter of defense, the absence of which plaintiff is not required to negative, except in that class of cases of which Kennon v. Gilmer, 4 Mont. 433, 2 P. 21, is typical (Nord v. Boston & Montana Co., 33 Mont. 464, 84 P. 1116, 89 P. 647; Stephens v. Elliott, 36 Mont. 92, 92 P. 45; Birsch v. Citizens Electric Co., 36 Mont. 574, 93 P. 940), but the corollary or modification of this rule, contained in the doctrine announced in the Kennon Case, is as firmly established as is the general principle itself and is not inconsistent therewith; it is that the plaintiff, having alleged facts in his complaint which show "that the proximate cause of his injury was from his own act," is required "to first state and then prove that, in the doing of this, he acted with a reasonable degree of care and prudence."
There can be no question but that, in the case at bar, the complaint shows that plaintiff's own act was the proximate cause of his injury. Kennon v. Gilmer, above; Badovinac v. Northern Pacific Ry. Co., 39 Mont. 454, 104 P. 543, 544; Lynes v. Northern Pacific Ry. Co., 43 Mont. 317, 117 P. 81, 83, Ann. Cas. 1912C. 183. This being so, this case comes squarely within the corollary, the debatable question being as to how and to what extent the exculpation of plaintiff must be alleged in the complaint.
Plaintiff contends that the doctrine of Kennon v. Gilmer has been receded from in subsequent opinions and should not be followed here. It is true that the doctrine has been variously stated in the numerous opinions since written, but in each of these, as will later appear the doctrine of Kennon v. Gilmer has been affirmed and followed.
The complaint in the Kennon Case alleged that a coach in which plaintiff was riding was "by the fault and neglect of the defendants placed in a condition so as to 'imperil the safety of plaintiff' and 'to render it apparently unsafe"' for him to longer remain therein, and that "being actuated by great fear of bodily injury * * * he jumped, and thereby received the injury complained of." The condition there alleged was also brought about by furnishing unruly horses as the motive power for the coach. A general demurrer was overruled and a trial had, resulting in a judgment in favor of plaintiff. On appeal from this judgment the court held the complaint insufficient and reversed the judgment, stating: "As the injury resulted from the jumping, and not from the accident to the stage, it was incumbent upon the...
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