Ellinghouse v. Ajax Live Stock Co.
| Decision Date | 13 October 1915 |
| Docket Number | 3537. |
| Citation | 152 P. 481,51 Mont. 275 |
| Parties | ELLINGHOUSE v. AJAX LIVE STOCK CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Beaverhead County; J. B. Poindexter Judge.
Action by Richard Ellinghouse against the Ajax Live Stock Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded for a trial on the merits.
McCaffery & Tyler, of Butte, Robison & Gilbert, of Dillon, and Maury Templeman & Davies, of Butte, for appellant.
Rodgers & Gilbert, of Dillon, for respondent.
Plaintiff brought this action for damages for the loss of his right hand through the alleged negligence of the defendant. At the trial the court sustained defendant's motion for nonsuit. Judgment was entered accordingly. Plaintiff has appealed.
At the time of the accident plaintiff, with four others, was employed by C. H. Strowbridge and Fred H. Holman in the operation of an ordinary circular woodsaw which was propelled by steam. Strowbridge and Holman had contracted with the defendant, through Jacob Louk, the foreman in charge of the ranch, to saw a quantity of logs into lengths rendering them suitable for use as stovewood on defendant's ranch. They were to furnish their own machine and servants, and to receive $2.50 per hour. Strowbridge was not present. Holman was operating the machine. The logs were passed from left to right. To plaintiff was assigned the duty of operating the saw, which required him, as a log was passed, to force the carriage back with his left hand to bring the log in contact with the saw, and at the same time to hold the log steady by placing his right hand on it, a few inches to the left of the saw. To one of the other employés was assigned the task of carrying away the lengths or blocks as fast as they were cut off. To the remaining three was assigned the task of bringing the logs up and putting them upon the carriage or table of the machine. One of them (Worcester) was required also to act as guard by standing at the left of plaintiff, and, besides assisting to place the logs upon the carriage, to pass them along or feed them to the saw. It was also his duty, when a log was being placed upon the carriage, to see that it was not thrust against the log upon which plaintiff was engaged and thus to prevent the obstruction of his part of the work and to guard him against the danger of having his right hand forced into contact with the saw. After the work had proceeded for a short time Louk voluntarily took the place of Worcester, saying, as he did so, that he wanted to do the feeding; that theretofore the wood had been cut too long; and that he wanted to see that it was cut short. On prior occasions Strowbridge and Holman had cut wood for defendant. Two other subordinate employés of the defendant were engaged with Strowbridge and Holman's employés in bringing up and placing logs upon the carriage. Whether they were doing this at the instance of Louk or not does not appear, except inferentially from the fact that they were in the employ of the defendant and Louk was its foreman. Holman had not requested their services, nor was he to pay them any compensation. A few minutes after Louk took the place of Worcester a log was thrust against the end of a short piece of another in which plaintiff was about to make the last cut. This forced plaintiff's hand upon the saw, with the result that it was so badly lacerated that amputation of it at the wrist was necessary. Holman and Strowbridge were equipped with help sufficient to enable them to carry out the contract without assistance from Louk and his subordinates. They therefore did not need any assistance. Plaintiff did not see Louk or either of his subordinates have hold of the log at the time he was hurt, because his attention was directed to the operation of the saw. Apart from displacing Worcester, Louk did not assume to control the conduct of the work, Holman continuing otherwise in control.
The complaint charges that while the plaintiff was engaged in the work of feeding the logs to the saw, under his employment aforesaid, the servants of the defendant negligently shoved against the log which plaintiff was feeding to the saw, another log which they were about to put upon the carriage, thus pushing the former and forcing plaintiff's hand upon the saw, whereby it was cut off at the wrist. The answer, besides denying all the allegations of the complaint, alleges as special defenses that the plaintiff assumed the risk, and that the injury was caused by the negligence of his fellow servants. All the evidence tendered by plaintiff was admitted without objection.
At the outset we are met with the contention by counsel for the defendant that the complaint does not state a cause of action, and that, however meritorious the case disclosed by plaintiff's evidence, the judgment must be affirmed for this reason. The sufficiency of the complaint was not challenged in the trial court either by demurrer or by objection to the admission of evidence, and, though one of the grounds of the motion for nonsuit was that the pleadings are not sufficient to support a judgment, this ground was apparently not seriously urged upon the attention of the court. The order sustaining the motion is couched in general terms, but the court seems to have proceeded upon the theory that the evidence is insufficient to make a case for the jury.
It is well settled by the decisions of this court that the sufficiency of a complaint may be questioned for the first time on appeal, and that, if found fatally defective, a judgment rendered thereon for the plaintiff will be reversed. Foster v. Wilson, 5 Mont. 53, 2 P. 310; Tracy v. Harmon, 17 Mont. 465, 43 P. 500; Shober v. Blackford, 46 Mont. 194, 127 P. 329; Cole v. Helena, L. & Ry. Co., 49 Mont. 443, 143 P. 974. These cases merely give force to the rule declared by the statute (Rev. Codes, § 6539) that a failure to question the sufficiency of a complaint by demurrer in the trial court does not amount to a waiver of the right to question it thereafter. When, however, the point is made in this court for the first time on appeal, the objection is regarded with disfavor, and every reasonable deduction will be drawn from the facts stated in order to uphold the pleading. So also will the pleading be held sufficient if the defect made the basis of the objection is not a matter going to the root of the cause of action, but is such as might have been remedied by an amendment. Again, though it be deficient, in its omission to state a particular fact necessary to make out a cause of action, it will be deemed amended by the answer when the latter contains allegations which supply the omission (Wilson v. Harris, 21 Mont. 374, 54 P. 46), or assumes that the complaint contains the allegation in question (Lynch v. Bechtel, 19 Mont. 548, 48 P. 1112; Hefferlin v. Karlman, 29 Mont. 139, 74 P. 201; Stephens v. Conley, 48 Mont. 352, 138 P. 189). And when a trial has been had upon the evidence which has been introduced without objection, a judgment for plaintiff will not be reversed for a defective complaint, but the complaint will be regarded as having been amended in the trial court, if this is necessary to sustain the judgment. Moss v. Goodhart, 47 Mont. 257, 131 P. 1071. When, under the same condition of the case, the judgment is for the defendant, whether on motion for nonsuit or on the merits, the point that the complaint is not sufficient will not be entertained, but the case will be considered on the merits and disposed of as if the proper amendment had been made upon request of plaintiff or by order of the trial court, unless the defect is of such a character that it cannot be removed by an amendment. Post v. Liberty, 45 Mont. 1, 121 P. 475; Lackman v. Simpson, 46 Mont. 518, 129 P. 325. The rule applies also to the answer of the defendant. Lackman v. Simpson, supra.
Of course, if the sufficiency of the pleading has been challenged in the trial court by appropriate method, the ruling thereon properly presents a question for consideration by this court, and it will review the action of the trial court thereon and determine the rights of the parties accordingly, subject to the injunction found in section 6593 of the Revised Codes: "The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect."
It is elementary that, when a plaintiff seeks recovery for actionable negligence, his complaint must allege facts showing these three elements: (1) That the defendant was under a legal duty to protect him from the injury of which he complains; (2) that the defendant failed to perform this duty; and (3) that the injury was proximately caused by defendant's delinquency. All of these elements combined constitute the cause of action; and if the complaint fails to disclose, directly or by fair inference from the facts alleged, the presence of all of them, it is insufficient, for it fails to state the facts constituting a cause of action. The rule, broadly stated, has application only to cases in which seasonable attack has been made upon the pleading in the trial court. If this is not done, and the defendant--as was the case here--allows the plaintiff to submit the case to a trial without objection, and permits him to establish by his evidence the presence of all the elements of his cause of action which the complaint shadows forth, but fails to state as definitely as it might have done, even the trial court should not nonsuit plaintiff because of the defective pleading, but direct it to be amended so as to remove the defect. As already said, when the case reaches this...
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