Casey v. American Bridge Company of New Jersey
| Decision Date | 19 May 1905 |
| Docket Number | 14,408 - (98) |
| Citation | 103 N.W. 623,95 Minn. 11 |
| Parties | CHARLES CASEY v. AMERICAN BRIDGE COMPANY OF NEW JERSEY [1] |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover $2,531.55 for personal injuries From an order, Brill, J., overruling a general demurrer to the complaint, defendant appealed. Affirmed.
Pleading -- Demurrer.
Where a complaint by its allegations presents two apparent theories of plaintiff's cause of action, one sufficiently, and the other insufficiently, pleaded, the court, in construing it on demurrer, will adopt the theory which will sustain the action, rather than the one which will defeat it.
Allegation of Negligence.
Clark v. Chicago, M. & St. Paul Ry. Co., 28 Minn. 69, to the effect that a general allegation of negligence is sufficient when challenged by demurrer, followed and applied.
Allegation of Injury.
The rule laid down in that case applies to a general allegation of plaintiff's injuries; and an allegation that plaintiff suffered serious bodily injury and pain, and will continue to suffer pain and permanent bodily injury, is sufficient as against a general demurrer.
Remedy by Motion.
The remedy in such case is by motion to make the pleadings more specific.
Davis Kellogg & Severance, for appellant.
John C Tarsney, M. J. Kane, John G. Park, and Thomas P. McNamara, for respondent.
Appeal from an order overruling a general demurrer to plaintiff's complaint.
The complaint alleges that defendant, a New Jersey corporation, acting for the Wrought Iron Bridge Company, another corporation, constructed a certain bridge over and across Cottonwood creek, in the county of Kingfisher, territory of Oklahoma, to be used in connection with and as a part of the highway extending across said creek. The bridge was constructed under a contract with the public authorities of Kingfisher county, and after its construction was used by the public generally for passage along the highway and across the creek; that, in constructing the bridge, defendant negligently and carelessly used unfit, insufficient, and unsuitable materials therefor, and negligently did the work in putting the materials together; that the bridge as constructed by it was insufficient and unsuitable for public use; that, on the date stated therein, plaintiff was lawfully traveling along the highway and across the bridge, and, by reason of the negligent and defective construction of the same, it gave way, precipitating him to the ground beneath, and causing him great personal injury, to his damage in the sum of $2,500. Then follow allegations to the effect that on November 20, 1903, plaintiff brought an action against the Wrought Iron Bridge Company in the circuit court of the state of Missouri to recover the identical damages sought to be recovered in this action, alleging the same negligent acts and omissions in the materials and construction of the bridge, in which action plaintiff recovered the sum of $2,500 damages and $31.55 costs. The complaint further alleges that the defendant in this action conducted the defense in that action for and on behalf of the Wrought Iron Bridge Company, and was and is in fact the real party in interest.
It is contended by defendant, in support of its demurrer to the complaint: (1) That, if the action be construed as one to recover upon the judgment against the Wrought Iron Bridge Company, the complaint is defective, in that it does not allege the jurisdiction of the court to entertain that action, or that a valid judgment was rendered therein; and (2) that, if the complaint be construed as stating a cause of action for the original injury, it is defective in not alleging specifically the negligent acts or omissions complained of, or the particular injuries for which plaintiff seeks compensation and redress.
We are of opinion that the learned trial court correctly overruled the demurrer. By invoking the general rule that pleadings are to be construed liberally, we have no difficulty in holding that the complaint states a cause of action for the negligence of defendant in the construction of the bridge and not upon the judgment recovered against the Wrought Iron Bridge Company. The general rule is that a complaint, to be held bad on demurrer, must be wholly insufficient;...
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