King v. Oregon Short Line Ry.

• Decision Date: 10 December 1898
• Citation: 55 P. 665,6 Idaho 306
• Parties: KING v. OREGON SHORT LINE RAILWAY
• Court: Idaho Supreme Court

55 P. 665

6 Idaho 306

KING v. OREGON SHORT LINE RAILWAY

Supreme Court of Idaho

December 10, 1898

RAILROAD COMPANY-KILLING OF STOCK-PLEADING-NEGLIGENCE.-Under subdivision 2, section 4168 of the Revised Statutes, which requires the complaint to contain a statement of the facts constituting the cause of action in ordinary and concise langauge, a general allegation of negligence, while good against a general demurrer, is not good against a demurrer on the ground of uncertainty.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Reversed with instructions. Costs of this appeal awarded to appellant.

P. L Williams and Joseph H. Blair, for Appellant.

All the code states have, in substance, the same provision found in our Idaho Code, subdivision 2, section 4168, requiring the complaint to contain "a statement of the facts constituting the cause of action, in ordinary and concise language." And these states--some by special demurrer on the ground of uncertainty, and others by motion to make more definite and certain--all provide a way of requiring the pleader to comply with this provision. Illustrative of this proposition, and in point, as well, in support of this demurrer, is the case of Stephenson v. Southern Pacific Co. (from the supreme court of California) 102 Cal. 143, 34 P 618, 36 P. 407. (Woodward v. Oregon Ry. etc. Co., (supreme court of Oregon), 18 Or. 289, 22 P. 1076.) The burden of proof is upon the plaintiff to establish negligence on the part of the defendant--that the mere killing of stock by a railroad company by running its engines and cars over one's stock does not establish a prima facie case of negligence, so as to shift and throw the burden of excusing upon the defendant. (Cateril v. U. P. R. Co., 2 Idaho 576, 21 P. 416; Spokane etc. Ry. Co. v. Holt, 4 Idaho 443, 40 P. 56.)

W. T Reeves, for Respondent.

Mr. Estee, in his work on Pleading second volume, section 2005, page 35, gives the approved form in California, in actions of this kind (ordinary cases of stock killing). This form was practically followed in drawing the complaint in this action. In support of the rule we contend for we cite the following authorities: Bliss on Code Pleading, 3d ed., art. 211a; Cunningham v. Los Angeles Ry. Co., 115 Cal. 561, 47 P. 452; Davies v. Oceanic Steamship Co., 89 Cal. 283, 26 P. 827; Stephenson v. Southern Pacific Ry. Co., 102 Cal. 143, 34 P. 618, 36 P. 407; Railroad Co. v. Wolfe, 80 Ky. 84; House v. Meyer, 100 Cal. 592, 35 P. 308; Scott v. Hogan, 72 Iowa 614, 34 N.W. 444; Rogers v. Truesdale, 57 Minn. 126, 58 N.W. 688; Jones v. Darden, 90 Ala. 372, 7 South, 923; Texas etc. Ry. Co. v. Easton, 2 Tex. Civ. App. 378, 21 S.W. 575; Louisville etc. Consolidated R. Co. v. Hicks, 11 Ind.App. 588, 37 N.E. 43, 39 N.E. 767; Benjamin v. Holyoke etc. Ry. Co., 160 Mass. 3, 39 Am. St. Rep. 446, 35 N.E. 95; Louisville etc. Ry. Co. v. Berkey, 136 Ind. 181, 35 N.E. 3.)

Action by W. H. King against the Oregon Short Line Railway Company to recover value of cattle alleged to have been killed by negligence of defendant. Judgment for plaintiff. Defendant appeals. Reversed.

This action was brought by the respondent to recover the value of four head of cattle alleged to have been killed by appellant's locomotives and cars--one alleged to have been killed on May 7, 1897; one on May 10, 1897; one on August 5, 1897; and one on November 5, 1897. The killing of each animal is set up as a separate cause of action. The third paragraph of each cause of action, which contains the allegations of the careless and negligent killing of said stock, is couched substantially in the same language, and in the first is as follows, to wit: "That the defendant, by its agents and servants, not regarding its duty in that respect, so carelessly and negligently ran and managed its locomotives and cars that the same ran against, upon, and over said steer, and killed and destroyed the same, to the damage of the plaintiff in the sum of eighteen dollars, no part of which has been paid." The total value of the four head is alleged to have been seventy-eight dollars. To each of said cause of action the defendant, who is appellant here, interposed a demurrer on the ground of uncertainty, and distinctly specifies that each of said causes of action is uncertain in several particulars, and among them the following: 1. It does not state any facts constituting negligence or carelessness on the part of any agent or servant of the defendant, or of the defendant; 2. It does not state any act or omission on the part of any agent or servant of the defendant, or of the defendant, or of anyone, constituting negligence or carelessness. The demurrer was overruled, and appellant declined to answer or further plead, whereupon judgment was given and entered in favor of the plaintiff. This appeal is from the judgment.

SULLIVAN, C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

(After Stating the Facts.)--There is but one question presented by the record, and that is: In actions based on negligence, is it sufficient to plead negligence generally, or must the specific acts of commission or omission be specifically set out in the complaint? It is conceded by counsel for appellant that the complaint in this action would be good as against a general demurrer, to wit, a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action, and that it is sufficient to sustain a verdict or judgment, unless attacked by a demurrer on the ground of uncertainty, specifically setting forth wherein it is uncertain. While counsel for respondent concede that, if the facts are sufficiently within the knowledge of the pleader, it would be better pleading to plead them, they also contend that the rule of pleading negligence is so thoroughly settled in this country that it is no longer an open question, and the rule is to the effect that it is unnecessary to plead the particular acts or omissions that constitute the negligence, and cite Bliss on Code Pleading, 3d ed., sec. 211a; Cunningham v. Railway Co., 115 Cal. 561, 47 P. 452; Stephenson v. Southern P. Co., 102 Cal. 143, 34 P. 618, 36 P. 407, and numerous other cases. It is said in Bliss on Code Pleading, third edition, section 211a, that a general allegation of negligence is allowed; that negligence is the ultimate fact to be pleaded, and is not a conclusion. Referring to negligence and fraud, it is said: "The law draws the conclusion in both cases, yet we can see that the negligence possesses more of the element of fact than does fraud. . . . We do not infer it as a legal conclusion from certain facts, but it is a fact itself inferable from certain evidence. . . . Fraud will never be presumed. The facts from which it is inferred must be shown." And, after giving some examples and citing authorities, the author concludes said section as follows: "Some negligence is presumed, and it must, of necessity, be alleged generally." Simply because "some negligence will be presumed," certain facts being shown, we are unable to comprehend that for that reason "negligence must, of necessity, be alleged generally." If certain facts must be shown before negligence will be presumed, the plaintiff must know these facts before he can show them; and, if he knows them, he certainly can allege them, and thus inform the defendant of the specific facts from which the conclusion of negligence is drawn. If, under the laws of this state, the killing of a steer by a...