Cram v. Chicago, Burlington & Quincy Ry. Company

• Decision Date: 14 December 1909
• Docket Number: 15,148
• Citation: 123 N.W. 1045,85 Neb. 586
• Parties: WILBER I. CRAM, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

123 N.W. 1045

85 Neb. 586

WILBER I. CRAM, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, APPELLANT

No. 15,148

Supreme Court of Nebraska

December 14, 1909

REHEARING of case reported in 84 Neb. 607. Affirmed on condition.

Affirmed on condition.

DEAN J. ROSE, J., did not sit, and took no part in this decision. BARNES, J., FAWCETT, J., dissenting.

OPINION

DEAN, J.

Our former opinion in this case affirming the judgment of the lower court is reported in 84 Neb. 607, to which reference is had for a statement of the facts. The delayed shipment act of the legislature of 1905, under which this suit was brought is assailed by defendant as being unconstitutional. The act upon which the attack is made also appears in our former opinion. A motion for rehearing supported by a brief in behalf of defendant has been filed, and also a reply brief by the plaintiff, and upon due consideration a reargument was ordered by the court, which has been submitted by counsel upon the following points: "(1) Does the petition state a cause of action? (2) Does the statute violate section 4, art. XI of the constitution, providing that the liability of railway corporations shall never be limited?"

The defendant argues that the burden is upon plaintiff to plead and prove every fact necessary to bring his case within the precise terms of the statute upon which his action is founded, and that the petition is fatally defective in each cause of action, and is so deficient in substance that a judgment predicated thereon cannot be sustained. That part of section 10606, Ann. St. 1907, that we are called upon to construe in order to determine the sufficiency of the petition reads as follows: "Provided, in cases where the initial point is not a division station and on all branch lines not exceeding 125 miles in length, the rate of speed shall be such that not more than one hour shall be consumed in traversing each twelve miles of the distance, including the time of stops at stations or other points, from the initial point to the first division station or over said branches. The time consumed in picking up and setting out, loading or unloading stock at stations, shall not be included in the time required, as provided in this schedule." Defendant now argues that plaintiff must, if he would avail himself of the benefit of the statute, plead and make proof of the time consumed in picking up and setting out, loading or unloading stock at intermediate stations between the point of shipment and the point of destination. The plaintiff contends that the time so consumed by the company in the movement of its trains is defensive matter and that the burden of proof is on the defendant. Plaintiff's several causes of action are each pleaded separately, but in language substantially alike, the only changes being those required to meet the necessary allegations as to the time and the amount of the respective shipments. Omitting the formal parts, the following is plaintiff's twenty-first count in his petition, the language whereof, defendant argues, is so deficient in its allegations that it is insufficient to sustain the judgment: "That at all of the times hereinafter mentioned, the defendant was, and now is, a corporation duly organized and existing under and by virtue of the laws of the state of Iowa, and did, and now does, own and operate a railroad between Burwell and South Omaha, in the state of Nebraska, as a public carrier of passengers and freight for hire in said state; that the defendant's said line of railroad runs through the city of Aurora, in said state, and the portion of its said railroad extending between South Omaha and Aurora was, and is, a main line 125 miles in length, and the portion of its said railroad extending between South Omaha and Aurora and Burwell was, and is, a branch line 104 miles in length; that on the 8th day of September, 1905, the plaintiff delivered to the defendant, and it then received, at its railroad station in Burwell, Nebraska, one full car-load of live stock belonging to plaintiff, to be safely and securely conveyed by the defendant over its said line of railroad from Burwell to South Omaha, Nebraska, within the time provided for by statute, in consideration of the regular freight charges therefor, which the plaintiff paid to the defendant; that the defendant's train conveying said car-load of live stock left Burwell for South Omaha at 9 o'clock A. M. of said day, but did not arrive at South Omaha, the point of destination, until 4:55 o'clock A. M. on September 11, 1905, and the time consumed in said journey was 52 hours and 18 minutes longer than permitted by the statutes of Nebraska, to the damage of the plaintiff in the sum of $ 520, as provided for by statute."

We have carefully examined the petition, and the law applicable to the points involved, to discover if the objections raised by defendant are well taken, and we conclude the pleading is not defective in the particulars pointed out. In view of the authorities, we are of the opinion defendant's contention cannot be sustained upon any reasonable theory of statutory construction. To do so would be to read a meaning into the statute which the lawmaking power evidently did not intend, and for which the legislative language, as used in the act, gives no warrant. The rule that seems to be applicable to the present case is concisely stated in 31 Cyc. 115: "Where a party relies upon a statute which contains an exception in the enacting clause, such exception must be negatived; but where the exception occurs in a proviso or in a subsequent section of the act, such exception is matter of defense and need not be negatived." This has long been the prevailing rule, and it appears to have been almost universally followed.

In 1 Chitty, Pleading (16th Am. ed.) p. *246, the author says: "In pleading upon statutes, where there is an exception in the enacting clause, the plaintiff must show that the defendant is not within the exemption, but if there be an exception in a subsequent clause, that is matter of defense, and the other party must show it to exempt himself from the penalty." On page *247 Chitty cites Lord Tenterden to the following effect: "If an act of parliament, or a private instrument, contain in it, first, a general clause, and afterwards a separate and distinct clause, something which would otherwise be included in it, a party relying upon the general clause, in pleading may set out that clause only, without noticing the separate and distinct clause which operates as an exception. But if the exception itself be incorporated in the general clause, then the party relying upon it must in pleading state it with the exception." In Lynch v. People, 16 Mich. 472, Cooley, C. J., speaking for the court says: "In pleading statutes where there is an exception in the enacting clause, the pleader must negative the exception; but when there is no exception in the enacting clause, but an exemption in a proviso to the enacting clause or in a subsequent section of the act, it is matter of defense, and must be shown by the defendant." Bush v. Wathen, 104 Ky. 548, 47 S.W. 599: "When there is an exception in the enacting clause, the plaintiff must negative it. If the exception is in a subsequent clause to that giving the cause of action, then, if it gives the defendant exemption from liability, he must plead it." Toledo, P. & W. R. Co. v. Lavery, 71 Ill. 522: "Where a plaintiff relies upon a statute for a recovery, he need only to negative the exceptions in the enacting clause, and it is for the defendant to show, by way of defense, that the case falls within an exception in some other clause of the statute." Harris v. White, 81 N.Y. 532: "Where an exception is contained in the enacting clause of a prohibitory statute, one who pleads the statute must negative the exception, and must prove the negative unless the subject matter of the negative and the means of proof are peculiarly within the knowledge and power of the opposite party, or where the negative does not admit of direct proof." Muller v. United States, 4 Ct. Cl. 61: "When the enacting clause of a statute makes an exception to the general provisions of the act, a party pleading the provisions of the statute must negative the exception. But when the exception is contained in a proviso, and not in the enacting clause, the party pleading the statute need not negative the exception. It is for the other party to set it up in avoidance of the general provisions of the statute." To substantially the same effect are the following: Vandegrift v. Meihle, 66 N.J.L. 92; 1 Bates, Pleading, Practice, Parties and Forms, p. 225; Faribault v. Hulett, 10 Minn. 30, 10 Gilf. 15; Bliss, Code Pleading (3d ed.) sec. 202.

In support of its contention defendant cites Hale v. Missouri P. R. Co., 36 Neb. 266, 54 N.W 517. We have examined that case and do not believe the conclusions there reached are applicable to the facts in the case at bar. The section of the United States statute referred to therein differs materially from the statute under which the action in the case before us is brought. In the present case the exception relied on is not in the enacting clause of the statute, but occurs in a proviso, and it appears the prevailing weight of authority is to the effect that, where the exception is so stated in the statute, such exception is matter of defense and need not be negatived by the plaintiff. In Hale v. Missouri P. R. Co., 36 Neb. 266, 54 N.W. 517, it does not appear the action was brought under the section of the United States statute that is referred to in that opinion. No reference is made to it in the record, nor in the briefs of counsel. The statute is noticed for the first time in the record of the Hale case in the opinion...