Chicago v. Wertheim.

• Decision Date: 16 August 1910
• Citation: 15 N.M. 505,110 P. 573
• Court: New Mexico Supreme Court
• Parties: CHICAGO, R. I. & E. P. RY. CO.v.WERTHEIM.

15 N.M. 505

110 P. 573

CHICAGO, R. I. & E. P. RY. CO.

v.WERTHEIM.

Supreme Court of the Territory of New Mexico.

Aug. 16, 1910.

Syllabus by the Court.

Denial upon information and belief of matters necessarily within the knowledge of the pleader is not permissible.

In a suit against a railroad company, a denial by such company upon information and belief that it was operating a railroad at the time and place alleged being a matter necessarily within defendant's knowledge raises no such issue upon the pleadings as will admit testimony that it was not operating such railroad over an objection that such testimony was not admissible under the pleadings.

Appeal from District Court, Quay County; before Justice Edward A. Mann.

Action by Jacob Wertheim against the Chicago, Rock Island & El Paso Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The appellee, Wertheim, sued the appellant, railway company, for damages. The complaint alleges plaintiff's ownership in the N. 1/2 of the N. E. 1/4 of section 22, township 11 N., range 30 E., New Mexico principal meridian. The following allegation then appeared: “That the defendant now is and was at the time hereinafter mentioned a corporation organized and existing under and by virtue of the laws of the territory of New Mexico, owning, controlling, and operating a line of railway and a right of way extending across said territory near to said land.” It is further alleged that the company negligently and carelessly allowed dried grass and other combustible material to accumulate along the said right of way over which it was then operating trains, and that it carelessly and negligently allowed sparks to escape from engines operated over its railroad track located on said right of way, and, as a result, said dried grass and combustible materials were set on fire and same was communicated to the lands of the appellee, with the result that the grass and hay thereon situated were burned and the real estate injured, and plaintiff asked for damages in the sum of $400. The company filed the following answer: “Comes now the defendant in the above styled and numbered cause, and, answering the complaint of the plaintiff last filed herein, says: Defendant on information and belief denies each and every allegation contained in the complaint of the plaintiff filed herein except only the allegations therein contained to the effect that the defendant is a corporation organized as stated in the said complaint. And defendant further denies that the plaintiff is entitled to the relief, or any part thereof, by him claimed, or to any relief whatsoever.” Jury was waived. From a judgment for $100 the company prosecutes this appeal.

In a suit against a railroad company a denial by such company upon information and belief that it was operating a railroad at the time and place alleged being a matter necessarily within defendant's knowledge, raises no such issue upon the pleadings as will admit testimony that it was not operating such railroad over an objection that such testimony was not admissible under the pleadings.

Hawkins & Franklin, for appellant.

Harry H. McElroy, for appellee.

POPE, C. J. (after stating the facts as above).

The only assignment of error relates to the rejection of the testimony to be now mentioned. Upon the trial the witness Franklin was introduced, who testified that, by reason of being the New Mexico attorney for the defendant, he passed on the lease between that company and the El Paso & Southwestern System of which he was assistant general attorney, and that he also had charge of the settlement of claims over the portion of the railroad (from Tucumcari to Santa Rosa) here involved, and had frequent occasion to advise with reference to the operation of that section of the railroad, and that, being thus in daily touch with these matters, he knew who was operating the road between the points above named. With this preliminary proof it was sought to be shown by the witness that the defendant was not operating or in charge of the track and equipment between Tucumcari and Santa Rosa at the date of the alleged injury. This was objected to on the grounds that the witness had not shown the proper qualification to testify, that the answer involved the contents of a written lease, and that the evidence was not admissible under defendant's answer. The objection was sustained, and we are asked to review the action of the court in declaring this testimony inadmissible. We find it unnecessary to determine the correctness of this ruling upon the first two objections urged, for we deem the third--that the testimony was not admissible under the pleadings--well taken. The answer, as we have seen, was a denial on information and belief. While this tendered an issue upon some of the matters...