Carpenter v. Central Vermont Railway Co.

• Decision Date: 03 July 1919
• Parties: LISLE M. CARPENTER v. CENTRAL VERMONT RAILWAY COMPANY
• Court: Vermont Supreme Court

107 A. 569

93 Vt. 357

LISLE M. CARPENTER v. CENTRAL VERMONT RAILWAY COMPANY

Supreme Court of Vermont

July 3, 1919

May Term, 1919.

ACTION ON THE CASE for personal injuries. There was a hearing on defendant's demurrers to plaintiff's replications after the September Term, 1915, Windham County, before Fish J., and the demurrers were severally overruled. The defendant electing to abide by its demurrers, at the April Term, 1916 Windham County, Miles, J., presiding, judgment was rendered against the defendant on all of the demurrers, and the case ordered to stand for trial on the question of damages. At the same term there was trial by jury on the question of damages. Verdict and judgment for the plaintiff. The defendant excepted.

Judgment reversed, and cause remanded.

John W. Redmond for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, and SLACK, JJ., and MOULTON, SUPR., J.

OPINION

WATSON

In January, 1916, the cause being again in the county court, the plaintiff moved for leave to amend the third and sixth counts of his declaration, in effect so as to make the third count set forth a cause of action under the Federal Employers' Liability Act, and the sixth count so more specifically to state that at the time when, etc., the plaintiff was employed by defendant as a brakeman on a train exclusively carrying intrastate freight and passengers. The amended sixth count was permitted to be filed and has since been a part of the declaration in the case. Six objections were made by the defendant to permitting the proposed amended third count to be filed. Four of them were: (1) The said amended third count introduces a new cause of action; (2) the proposed amended third count seeks to maintain an action on the Federal Employers' Liability Statute for an accident which happened more than two years before the filing of the proposed amendment, which statute expressly prohibits the bringing of an action more than two years after the happening of the accident; (5) the said Federal statute in effect prohibits bringing into the case a cause of action under that statute more than two years after the cause of action arose; and (6) to permit the proposed amendment to the third count to be made operates in effect to bring suit under the said Federal statute more than two years after the accident occurred, and so is in violation of the Fourteenth Amendment to the Constitution of the United States, in that it is not due process of law to compel the defendant to answer thereto in a suit or action which is by the statute barred. The objections were overruled, and the proposed amended third count was permitted to be filed and was filed in the case on January 28, 1916, to which defendant excepted.

Defendant then, on the same day, moved that the said amended third count, filed by leave of court, be dismissed for reasons stated in the motion, which reasons in substance are the same as those stated as the grounds of objections to the allowance of that amendment. This motion was overruled, to which defendant excepted.

On the same day the plaintiff, repleading, filed a replication to defendant's first and second pleas to the first, second, fourth, and fifth counts of the declaration. As to the first plea, so far as it relates to these counts, the plaintiff joined issue. As to the second plea, so far as it relates to these counts, plaintiff replied precludi non, because he says, in short, that the matter and things set forth in these counts occurred, and the cause of action therein set forth accrued, subsequently to the passage and taking effect of the Federal Employers' Liability Act; and that at the time when, etc., the defendant was a common carrier, engaged in interstate commerce, and that when the plaintiff was injured as alleged in these counts, he was employed by defendant in such commerce; concluding to the country.

As the next step in the pleadings defendant filed the general issue to the amended third and sixth counts, and special pleas in bar (2) that the supposed cause of action alleged and declared upon in said amended third count, accrued more than two years previous to the bringing and filing of said amended count, and (3) that the action commenced by the allowance and filing of the said amended last-named count, was not commenced within two years from the day the supposed cause of action alleged and declared upon in said amended count accrued; concluding said second and third pleas with a verification. And pleading to the amended sixth count that the supposed cause of action alleged and declared upon therein accrued subsequently to the taking effect of the Federal Employers' Liability Act; approved April 22, 1908, and that at the time when, etc., the defendant was a common carrier by railroad, engaged in interstate commerce, and that at the time when the plaintiff received the injuries complained of he was employed by the defendant in such commerce; concluding with a verification. At the same time defendant demurred to the replication to the said second plea originally filed, in so far as the replication relates to said second plea as an answer to the first, second, fourth, and fifth counts and the matters therein contained, and for grounds of demurrer specified, among others: (2) That said replication is a complete departure from the said counts; (3) that said replication introduces a new cause of action; (9) that said replication undertakes to make the said counts, counts under the said Federal statute when, at the time said replication was filed, the plaintiff has no right of action by the law of that statute. In this demurrer plaintiff joined.

By way of replication plaintiff joined issue to defendant's first plea to the amended third and amended sixth counts. Replying to defendant's second plea to the amended third counts, plaintiff says precludi non, because in effect the cause of action therein alleged and declared upon, is all and the same cause of action as that alleged and declared upon in the original third count; that said action, containing said original third count as a part of the declaration, was commenced within two years from the time the cause of action alleged and declared upon in the amended third count accrued to the plaintiff; and that said cause of action is all and the same as in this replication is set forth; concluding with a verification.

The replication to defendant's third plea to the amended third count is in effect similar to the replication to the second plea to that count.

Plaintiff joined issue upon the fourth plea to the amended sixth count.

Defendant demurred to the replication to its second and third pleas (separately) to the amended third count, specifying the same grounds of demurrer, among which two are here mentioned: (3) That the replication is defective in that it avers and sets forth in substance that the cause of action alleged in the original third count is the same cause of action alleged in the amended third count; whereas in fact the original third count is founded on the common law, while by the amended third count the plaintiff attempts to maintain the action by an act of Congress; (6) said replication is in its allegations of fact simply a repetition of the allegations in the amended third count, not alleging new matter in confession and avoidance or in any way to meet the allegations of the defendant's said plea. Plaintiff joined in these demurrers.

Defendant's demurrer to the replication to its second and third pleas to the amended third count, and defendant's demurrer to the replication to its second plea to the first, second, fourth and fifth counts, were heard before Superior Judge Fish in vacation, being argued by counsel on both sides, and on consideration were severally overruled, and exceptions noted for defendant.

Defendant's request then made that the questions involved in the order overruling said demurrer be certified to the Supreme Court for review before trial of the case on the merits being denied, defendant elected to abide by its said demurrers.

At the next term of the county court, judgment was rendered on all the demurrers against the defendant and the case ordered for trial on the question of damages. Defendant excepted to the judgment so rendered on each demurrer, separately, because (4) it denies to the defendant the equal protection of the law guaranteed by the Fourteenth Amendment to the Federal Constitution, and (5) in each case it violates Article 6 of that Constitution. Defendant also excepted to the ordering of the case for trial on the question of damages. Defendant excepted to the impaneling of the jury and to the trial of the cause. The jury rendered a verdict fixing the plaintiff's damages at $ 11,204.15. Judgment was rendered on the verdict, to which defendant excepted.

When this case was here before (as reported in 90 Vt. 35, 96 A 373), it was on exceptions to rulings on questions of evidence, made during a trial on the merits. The case then standing on the original declaration (all counts), we said in stating the case, was an action at common law. Now the nature of the original counts in that respect is involved in the questions expressly raised by the exceptions, and is for decision. Each of those counts alleges that defendant, at the time in question, had in its possession, control, and management a certain line of railroad extending from South Londonderry to Brattleboro (wholly within this State) operating trains thereon for the carriage of freight and passengers for hire; but there is no allegation that it was engaged as a common carrier over any other line of railroad, or beyond the termini stated; nor do any of those counts contain allegations of fact showing even by implication that defendant was then engaged...