Hubbard v. Olsen-Roe Transfer Co.

• Decision Date: 25 March 1924
• Citation: 224 P. 636,110 Or. 618
• Parties: HUBBARD ET UX. v. OLSEN-ROE TRANSFER CO.
• Court: Oregon Supreme Court

224 P. 636

110 Or. 618

HUBBARD ET UX. v. OLSEN-ROE TRANSFER CO.

Supreme Court of Oregon

March 25, 1924

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by James B. Hubbard and wife against the Olsen-Roe Transfer Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

This is an action for the recovery of damages alleged to have been sustained by plaintiffs through the negligence of the defendant.

Olsen-Roe Transfer Company, defendant herein, is a corporation engaged in the business of conducting a warehouse. The plaintiffs instituted action against defendant in the circuit court of the state of Oregon for Multnomah county, alleging, among other things, that the defendant was conducting a warehouse in the city of Portland. They aver their delivery to defendant of certain goods, wares, and merchandise, which the defendant received, and which, in consideration of its certain lawful storage charges in money paid to it by the plaintiffs, defendant promised to keep safely and store with all the care and attention which a reasonably careful owner would exercise with respect to similar property; that, during the period of time when the personal property so delivered to defendant was in its custody and control, it so negligently stored the property that by and through its carelessness and negligence much of plaintiffs' household goods was rendered totally unfit for use. They assert that the defendant negligently permitted water to damage the personal property stored with it, and allowed such property to remain in that condition, and carelessly and negligently failed to remove it to a suitable place of safety, or to unpack it, or to notify plaintiffs, or either of them, of the damage.

Defendant answering, admits that it is operating a warehouse in the city of Portland, Oregon, but--

"denies each and every allegation, matter and thing contained in paragraph 2 of plaintiffs' complaint, and the whole thereof, except that defendant received certain old secondhand household goods for crating, packing and hauling. Defendant denies each and every allegation, matter and thing contained in paragraphs 3 and 4 of plaintiffs' complaint and the whole thereof."

For a first further and separate answer and defense, the defendant averred that its business was carried on in a building owned by W. P. and Mary A. Crawford; that the building was provided with a four-inch fire stand pipe without any drain cock by which the stand pipe might be emptied, and that the stand pipe was under the control of the Crawfords. Paragraphs 3 and 4 of this answer are not involved. In paragraph 5 defendant alleges that the damage, if any, was caused by reason of an "act of God," and was due to plaintiffs' own carelessness in leaving their household goods in the defendant's leased warehouse.

For a second further and separate answer and defense, the defendant averred that, if plaintiffs' goods were damaged, the damage was caused by their negligence while the goods were being shipped from Portland, Or., to California. It is further asserted in that pleading that the goods, when received by the plaintiffs, were in as good condition as when they came into the defendant's possession.

The third further and separate answer and defense makes paragraphs 1, 2, 3, 4, 5, and 6 of its first separate answer a part thereof, and avers that the damage, if any, was due not to the negligence of the defendant, but to an "act of God" and to the carelessness and negligence of the Crawfords, the owners of the building. It also sets forth an ordinance of the city of Portland, which it claims was violated by the owners of the building.

Upon motion of plaintiffs, certain paragraphs were stricken from the defendant's first further and separate answer. Likewise paragraph 1 of its third separate answer was stricken, and subsequently demurrers were sustained to the second and third separate answers. Defendant was given a number of days within which to serve and file its amended answer, but refused.

On trial by jury a verdict was rendered in favor of plaintiffs and against the defendant, in the sum of $421.95, together with their costs and disbursements.

The defendant appeals to this court and assigns error relating to the matter of the ruling of the court on the pleadings:

"In overruling the motion of defendant for a new trial and in entering an order denying same, for the reason that defendant, during the trial of this case, was not allowed to mention or to introduce evidence to sustain the facts set forth in defendant's affirmative defenses. * * *"

Oren R. Richards, of Portland (Richards & Richards, of Portland, on the brief), for appellant.

Wilson & Guthrie, Robert R. Rankin, Cicero F. Hogan, and Harry O. Strom, all of Portland, for respondents.

BROWN, J. (after stating the facts as above).

The complaint in this case is based upon defendant's liability as a warehouseman, for hire, of plaintiffs' household goods.

The Uniform Warehouse Receipts Act provides, among other things:

"A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he shall not be liable, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care." Or. L. § 8028.

Again:

"A warehouseman may insert in a receipt, issued by him, any other terms and conditions; provided, that such terms and conditions shall not:

"(a) Be contrary to the provisions of this act.

"(b) In any wise impair his obligation to exercise that degree of care in the safe-keeping of the goods intrusted to him which a reasonably careful man would exercise in regard to similar goods of his own." Or. L. § 8010.

In Hansen-Rynning, Adm'r, v. Oregon-Washington R. & N. Co., 105 Or. 67, 80, 209 P. 462, 466, this court, speaking by Mr. Justice Rand, said:

"Under the provisions of this statute, if the care which the warehouseman has exercised in regard to the goods was such as a reasonably careful owner of similar goods would exercise, the warehouseman was not liable for any loss or injury to the goods, but if he failed to exercise such care, then the warehouseman was liable for any damages resulting from his failure in that regard. * * * 'The warehouseman is liable for defects in his warehouse unless such defects are unknown to him and could not have been discovered by him by the use of ordinary care.' Note d, 136 Am. St. Rep. 219."

The only questions involved herein arise from the court's order relating to the pleadings.

"The complaint shall contain-- * * *

"2. A plain and concise statement of the facts constituting the cause of action, without unnecessary repetition." Or. L. § 67.

"The answer of the defendant shall contain--

"1. A general or specific denial of each material allegation of the complaint controverted by the defendant. * * *

"2. A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition." Or. L. § 73.

Our statement shows that the defendant's answer contained three "further and separate answers and defenses."

It is provided by our Code, and established by the decisions of our court, that the proper and only method of objecting to and correcting irrelevant and redundant allegations in a pleading is by motion to strike out the unnecessary matter (Or. L. § 86) because--

"A demurrer is not a pruning hook, and cannot be used to trim out immaterial and irrelevant matter. This must be done by motion." In re Estate of McMurray, 107 Iowa, 648, 78 N.W. 691.

To the same effect, see City of Butte v. Peasley, 18 Mont. 303, 45 P. 210. "In a legal action all matter stated in addition to the allegations of issuable facts, * * * is unnecessary, and therefore immaterial and redundant." Pomeroy's Code Remedies (4th Ed.) § 445.

A paragraph of an answer which does not allege any fact essential to the defendant's cause should be stricken out upon motion. Pitkin v. New York & New England R. R. Co., 64 Conn. 482, 30 A. 772.

The court's order sustaining the motion to strike out redundant and irrelevant matter contained in the defendant's answer does not constitute reversible error.

The allegation relating to the freezing of the pipes as an "act of God" was new matter, and, if the defendant intended to rely thereon, it was essential to plead it by stating the necessary facts to constitute a defense under that plea. Pengra v. Wheeler, 24 Or. 532, 34 P. 354, 21 L. R. A. 726. "New matter," as used in paragraph 2, section 73, Oregon Laws, means matter extrinsic to the matter set up in the complaint as the basis to the cause of action. 1 Encyc. Plead. & Prac. p. 830, 31 Cyc. 219; 21 R. C. L. 567.

" 'New matter' is where the contract is admitted, and the matter set up avoids the contract --not where the matter set up denies the contract." 1 Encyc. Plead. & Prac. p. 830, note 3, with authorities.

Matter specially pleaded, if admissible under the general denial, should be stricken out as redundant. Bolton v. Missouri P. Ry. Co., 172 Mo. 92, 72 S.W. 530.

The sufficiency of a pleading is to be tested by demurrer. Cline v. Cline, 3 Or. 355, 356; Staten Island, etc., Ry. Co. v. Hinchliffe, 170 N.Y. 473, 63 N.E. 545; The Victorian, 24 Or. 121, 137, 32 P. 1040, 41 Am. St. Rep. 838; Brownell v. Salem Flouring Mills Co., 48 Or. 525, 87 P. 770; Harrison v. Birrell, 58 Or. 410, 115 P. 141.

From the provisions of section 73, Oregon Laws, answers are separated into two classes: Denials and new matter. Answers consisting of denials serve the purpose only of raising a direct issue upon the averments of the...