Harvey v. Southern P. Co.

• Decision Date: 29 May 1905
• Parties: HARVEY v. SOUTHERN PAC. CO.
• Court: Oregon Supreme Court

80 P. 1061

46 Or. 505

HARVEY v. SOUTHERN PAC. CO.

Supreme Court of Oregon

May 29, 1905

Appeal from Circuit Court, Jackson County; H.K. Hanna, Judge.

Action by J.A. Harvey against the Southern Pacific Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was instituted in the justice's court. The complaint states in a single count a cause of action against the defendant based upon common-law negligence in running its train upon and killing the plaintiff's cow, and another cause for not fencing its track, whereby the cow was permitted to stray thereupon, and was killed by a passing train. It was further alleged that plaintiff duly served upon the defendant a proper notice of the killing of the animal and his claim therefor, and that $50 is a reasonable attorney's fee for the prosecution of the action. Judgment was for the plaintiff, and defendant appealed to the circuit court. The cause coming on for trial in the latter court, and after the impaneling of the jury and the opening statements of counsel, counsel for defendant filed a motion asking the court to require the plaintiff to elect upon which cause of action he would proceed to trial, which motion being allowed, the plaintiff confined his examination to the cause based upon the failure of the defendant to fence its track. At the close of the testimony the defendant moved for a directed verdict in its favor, which motion was allowed; and judgment having been rendered accordingly for the costs and disbursements of the action, the plaintiff appeals.

H.H Riddell, for appellant.

Wm. D. Fenton and R.A. Leiter, for respondent.

WOLVERTON, C.J. (after stating the facts).

The first question presented for our determination is one of practice, and arises upon the trial court's allowance of the motion requiring the plaintiff to elect as to which cause of action he would proceed upon at the trial. The complaint we think, may appropriately be characterized as containing a duplicate statement of distinct grounds of recovery for the same right of action; the right arising from the single transaction in killing plaintiff's animal. The defendant is charged, however, with two culpatory acts in the invasion of plaintiff's right--one for a common-law negligence and the other for failure to fence, a duty imposed upon it by statute--for either one of which plaintiff is accorded a right of action, but the relief is different. Upon the ground first named, the measure of relief is the value of the animal lost, but upon the other it is the value of the animal enhanced by reasonable attorney's fees for the prosecution of the action (section 5146, B. & C. Comp.), so that there are stated in the complaint two grounds of recovery for the same right; affording the plaintiff different reliefs, according to the cause maintained. He could not have two judgments, however, and a judgment in the one form would preclude a judgment in the other, as the law does not allow double damages for the invasion of the same right. For joining the two grounds or causes of action in the same count, the defendant had its motion before answer to strike out the complaint because they were not separately stated. B. & C. Comp. § 81. By pleading over the right to interpose such a motion was waived. There is, however, another exigency to which this motion does not extend. If there be duplicate statements of the same cause of action, or statements of different grounds of recovery for the same right, the defendant is entitled, unless in exceptional cases, to have the plaintiff elect upon which ground or cause he will proceed to trial, and the motion directed to that purpose may be interposed at any time before the trial. Mr. Pomeroy states the rule as follows: "Since the reformed pleading requires the facts to be averred as they actually took place, it does not, in general, permit a single cause of action to be set forth in two or more different forms or counts, as was the familiar practice at the common law. The rule is undoubtedly settled that, under all ordinary circumstances, the plaintiff who has but one cause of action will not be suffered to spread it upon the record in differing shapes and modes, as though he possessed two or more distinct demands; and, when he does so without special and sufficient reason, he will be compelled, either by a motion before the trial, or by an application and direction at the trial, to select one of these counts, and to abandon the others." Pomeroy, Code Rem. (4th Ed.) §§ 467, *576. Mr. Phillips says: "It may safely be said that the true rule, resting upon principle, and supported by the weight of authority, now is that where a plaintiff has a single right of recovery, that may rest upon one ground or upon another, according to the facts to be shown by the evidence, and he cannot safely foretell the precise nature and limits of the defendant's liability, to be developed upon the trial, he may state his right of action variously, in separate causes of action. This privilege is an exception to the general rule that each separate statement should set out a distinct and independent right of action, and, inasmuch as a pluralty of statements multiplies the issues, and tends to obscure the real claim which the defendant will have to meet, it is to be indulged only where it is fairly necessary for the protection of the plaintiff, and where it will not mislead or embarrass the defendant in his defense." Phillips, Code Pleading, § 207. See, also, Spaulding v. Saltiel, 18 Colo. 86, 31 P. 486; Cramer v. Oppenstein, 16 Colo. 504, 27 P. 716; Brown v. Kansas City, etc., Ry. Co., 20 Mo.App. 429; Otis v. Mechanics' Bank, 35 Mo. 128; Cartin v. Railroad Company, 43 S.C. 221, 20 S.E. 979, 49 Am.St.Rep. 829.

The rule is well illustrated by a case from California. The complaint was filed, containing two counts--one for services performed on a promise to pay therefor a definite sum, and the other for the same services at their reasonable worth--and, upon a motion to require plaintiff to elect, the Supreme Court, sustaining the ruling of the trial court, said that the plaintiff may set out the facts "in two separate forms when there is a fair and reasonable doubt of his ability to safely plead them in one mode only." Wilson v. Smith, 61 Cal. 209, 210. So, in Wisconsin, Whitney v. Chicago, etc., Ry. Co., 27 Wis. 327, where the court for a like reason held it to be allowable for the plaintiff to charge the defendant on separate grounds in the capacity of a carrier and a warehouseman. So it was in Bishop v. Chicago &amp Northwestern R. Co., 67 Wis. 610, 616, 31 N.W. 219, the court saying: " 'Since it is no longer necessary, in order to protect the rights of the plaintiff, that he should set forth in different counts the same cause of action--variances between the allegations and the proofs being disregarded unless they actually mislead the adverse party to his prejudice upon the merits--the practice of so doing is disapproved of, because it is not in harmony with the...