Bouchard v. Cent. Vermont Ry. Co.

• Decision Date: 28 January 1914
• Citation: 87 Vt. 399,89 A. 475
• Parties: BOUCHARD v. CENTRAL VERMONT RY. CO.
• Court: Vermont Supreme Court

89 A. 475

87 Vt. 399

BOUCHARD

v. CENTRAL VERMONT RY. CO.

Supreme Court of Vermont. Windham.

Jan. 28, 1914.

Exceptions from Windham County Court; William H. Taylor, Judge.

Action by Levi Bouchard against the Central Vermont Railway Company. Judgment pro forma overruling defendant's demurrer, and it excepts. Affirmed and remanded for further proceedings.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Robert C. Bacon, of Brattleboro, and Green & Bennett, of Holyoke, Mass., for plaintiff.

C. W. Witters, of St. Albans, and Clarke C. Fitts and Hermon E. Eddy, both of Brattleboro, for defendant.

HASELTON, J. The action is case for negligence and was heard on a demurrer to the declaration and to counts 1, 2, 3, 4, 5, and 6 of the declaration. The demurrer was overruled pro forma, and to this ruling the defendant excepted. The case comes here before trial on the questions of pleading raised by the assigned grounds of demurrer.

The plaintiff, to state the case made by the declaration, was an engineer in the employ of the defendant and was injured in the course of such employment Four counts of the declaration are at common law. The others, three in number, assert in substance that the plaintiff was injured while the defendant was engaged in interstate commerce, and while the plaintiff was employed by the defendant in such commerce. No question is made as to the character of the counts. The latter counts refer expressly to the federal Employers' Liability Act, and rest the right of action thereon; but this reference is unnecessary, for the state courts do and must take notice of the federal act. Metropolitan Stock Exchange v. National Bank, 76 Vt. 303, 57 Atl. 101; Missouri, etc., Ry. Co. v. Wulf 226 U. S. 570, 576, 33 Sup. Ct. 135, 57 L. Ed. 355.

The demurrer to the whole declaration raises the question, chiefly argued, of whether the counts at common law can be joined with the counts under the federal statute. The object of the pleader in joining the two sets of counts may be inferred to have been uncertainty as to what the evidence would develop as to the character of the freight carried by the train on which he was injured, and the purpose to have a count applicable to the facts that the evidence might tend to show. The two sets of counts state what must be regarded as different causes of action. St. Louis, etc., Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129; Troxell v. Delaware, etc., Co., 227 U. S. 434, 33 Sup. Ct. 274, 57 L. Ed. 586; Winfree v. Northern, etc., Co., 227 U. S. 296, 33 Sup. Ct 273, 57 L. Ed. 518; Michigan, etc., Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417.

But the mere fact that the causes of action are different is no objection to the joinder. It is the policy of the law to permit and encourage the joinder of causes of action that are of the same nature and are to be pursued in the same form of action. Sawyer v. Childs, 83 Vt. 329, 75 Atl. 886; Gordan v. Journal Publishing Co., 81 Vt. 237, 69 Atl. 742; Lee v. Springer, 73 Vt. 183, 50 Atl. 809; Holton v. Muzzy, 30 Vt. 365; 1 Chitty Pl., *199-*202; Gould's Pleading, c. 4, §§ 79-83. And it is not now considered material, if other conditions are met, that a statutory cause of action is joined with one at common law. Ranney v. St. J. & L. C. R. R. Co., 64 Vt. 277, 24 Atl. 1053; Preston v. St. J. & L. C. R. R. Co., 64 Vt. 280, 25 Atl. 486; McDuffee's Adm'x v. Boston & Maine, 81 Vt. 52, 75, 69 Atl. 124, 130 Am. St. Rep. 1019; Marquette, etc., Co. v. Dielie, 208 Ill. 116, 70 N. E. 17; Creen v. Michigan, etc., R. Co., 168 Mich. 104, 133 N. W. 956, Ann. Cas. 1913C, 98; Clark v. Worthington, 12 Pick. (Mass.) 571; Worster v. Canal Bridge, 16 Pick. (Mass.) 541; McLaughlin v. Hebron (C. C.) 171 Fed. 269.

The tradition, sometimes called a principle, that a common-law cause of action cannot be joined with one given by statute seems in the remote analysis to have no better support than a case, reported anonymously in Jenkins Centuries, which goes only to the extent of holding that where the two actions are different in nature and form, as an action of trespass on a statute and an action of detinue at common law, they cannot be joined. Jenk. Cent. Case, 46, p. 211.

The question is not that of allowing an amendment which introduced a new cause of action, a matter that has led to much discussion in view of the common law and the more or less limited statutory power to grant amendments. Acts of 1912, No. 91, § 1; P. S. 1498; Sowles v. Hartford, etc., Co., 85 Vt. 56, 81 Atl. 98; Derosia v. Ferland, 83 Vt. 372, 76 Atl. 153, 28 L. R. A. (N. S.) 577, 138 Am. St. Rep. 1092; Estabrooks v. Fidelity, etc, Co., 74 Vt. 202, 52 Atl. 420; Brodek v. Hirschfield, 57 Vt. 12; McDermid v. Tinkham, 53 Vt. 615; Dana v. McClure, 39 Vt. 197; Union Pacific Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983.

We have here, omitting a question presently to he discussed, the simple and ordinary case of the original joinder in an action of case of two causes of action, both properly brought in that form, and there is no difficulty about the matter unless it is found in the inconsistency of the counts, a point somewhat dwelt upon by the defendant.

It is true that the counts are inconsistent in that the federal law is exclusive to the extent to which it applies, so that, if the plaintiff makes out a case of liability under that law, there can be no liability under the common-law counts. But the common-law doctrine of repugnancy relates to inconsistent matters of substance in the same count or plea. Counts and pleas which are merely inconsistent are not for that reason repugnant in a legal sense. Doyle v. Melendy, 85 Vt. 297, 81 Atl. 1129; White v. Snell, 9 Pick. (Mass.) 16; Barton v. Gray, 48 Mich. 164, 12 N. W. 30. Though inconsistent methods of pleading are not to be tolerated, inconsistency between pleas is permissible. Powers v. Rutland R. Co., 83 Vt. 415, 419, 76 Atl. 110. Inconsistency of statement between counts is merely the common-law way of providing for the exigencies of the evidence. In equity the same thing is done in a proper case by the drawing of a bill in a double aspect; that is, in the alternative. Blondin v. Brooks, 83 Vt. 472, 76 Atl. 184; Nichols v. Nichols, 61 Vt. 429, 18 Atl. 153; McConnell v. McConnell, 11 Vt. 290. So it is that, in many of the states that have abolished or greatly modified the common-law system of pleadings, a complainant may present his case in a double aspect and may say, "If that is not true, then this is, and in either case I claim to recover." Payne v. New York, etc., R, Co., 201 N. Y. 436, 95 N. E. 19; Astin v. Chicago, etc., R. Co., 143 Wis. 447, 128 N. W. 265, 31 L. R. A. (N. S.) 158; Jones v. Holtzen (Tex. Civ. App.) 141 S. W. 121; Morrison v. Bartlett (Tex. Civ. App.) 131 S. W. 1146; Carbary v. Detroit, etc., Ry., 157 Mich. 683, 122 N. W. 367; Cleveland, etc., Ry. Co. v. Gossett, 172 Ind. 525, 87 N. E. 723; Sloss v. Tilson, 141 Ala. 152, 37 South. 427; Bankson v. Illinois, etc., R. Co. (D. C.) 196 Fed. 171.

The defendant calls attention to the fact that if the plaintiff had been killed, and that if his personal representatives had sued, joining counts as they are here joined, the recovery, if one was had, would not, at least not necessarily, be for the benefit of the same persons. But that is not this case, and it is unwise to anticipate. Neither do we consider the matter of election after the coming in of the evidence, or at any other stage of the case. The demurrer to the declaration on the ground of the misjoinder of counts was properly overruled. Counts 1, 2, 5, and 6 were demurred to on the ground that, under the allegations of those counts, the plaintiff was injured because of disobedience of orders of the defendant.

The story of this accident, as told in the different counts in ways which differ slightly, is this: The defendant was required by its rules to transmit to conductors and engineers orders for the government of their trains, and kept at stations books called train registers, in which conductors, by requirement of the defendant, registered the arrival and departure of their...