Louisville & N.R. Co. v. Paynter's Adm'x

• Decision Date: 21 October 1904
• Parties: LOUISVILLE & N. R. CO. v. PAYNTER'S ADM'X.
• Court: Kentucky Court of Appeals

82 S.W. 412

LOUISVILLE & N. R. CO. v. PAYNTER'S ADM'X.

Court of Appeals of Kentucky.

October 21, 1904

Appeal from Circuit Court, Larue County.

"Not to be officially reported."

Action by W. V. Paynter's administratrix against the Louisville & Nashville Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Poston & Moorman, Edward W. Hines, and Benjamin D. Warfield, for appellant.

S. M Payton and Robt. L. Greene, for appellee.

BARKER J.

W. V Paynter was a brakeman in the employ of appellant. At the time of his death he was on a freight train being operated from Lebanon Junction to Bardstown Junction. At the latter place the conductor in charge of the train undertook to move 14 flat cars from the Y, and to place them on a siding. In executing this duty Paynter fell to the track, was run over and instantly killed.

After the death of her husband appellant qualified as administratrix of his estate, and instituted this action to recover damages for his death. Her petition states a cause of action by alleging the death of her husband through the negligence of appellant and its employé, the conductor of the train, and in addition it negatives by anticipation the plea of contributory negligence, by alleging the exercise of ordinary care by the decedent at and before the time he was killed. The answer places in issue all of the material allegations of the petition, and in addition thereto pleads contributory negligence by the decedent. To this no reply was ever filed. Subsequently an amended petition was filed, reiterating all of the statements of the original, with additional allegations of negligence. This was controverted of record, and the case went to trial in the Larue circuit court at the October term, 1902. At the close of all of appellee's (plaintiff's) testimony the court, on motion, awarded the appellant a peremptory instruction to the jury to find for it, as in case of nonsuit. Afterwards, upon motion, the judgment was set aside, and a new trial awarded the plaintiff (appellee). Another trial resulted in a verdict for $2,500 in favor of appellee, which was set aside by consent, and a new trial again awarded the defendant (appellant). A third trial resulted in the jury again finding a verdict in favor of the plaintiff (appellee) in the sum of $2,500. The appellant now appeals from the order setting aside the first verdict rendered at the October term, 1902, which awarded appellee (plaintiff) a new trial, and also from the last verdict against it.

The conclusion we have reached as to the pleadings in this case renders it unnecessary that the evidence concerning the manner of the death of appellee's intestate should be examined with more particularity than heretofore stated. Section 126 of the Civil Code of Practice provides: "Every material allegation of a pleading must, for the purposes of the action, be taken as true, unless specifically traversed. ***" And section 127: "A material allegation is one which is necessary for the statement or support of a cause of action or defense." Am. & Eng. Encycl. Law (2d Ed.) vol. 5, p. 1, title "Contributory Negligence," says: "The authorities are well-nigh unanimous that, in an action for negligence, the plaintiff need not allege that the injury of which he complains was occasioned without his fault, or that he was not guilty of contributory negligence, as the rule is that 'it is not necessary to allege matters which would come more properly from the other side,' and contributory negligence is considered a defense that the defendant must make." Paducah, etc., R. Co. v. Hoehl, 12 Bush, 41; L. & N. R. Co. v. Wolfe, 80 Ky. 82; Louisville, etc., Canal Co. v. Murphy, 9 Bush, 522; Depp v. L. & N. R. Co., 14 S.W. 363, 12 Ky. Law Rep. 366. It follows, then, that the allegations of the petition negativing the negligence of the decedent were immaterial, and the affirmative plea of contributory negligence in the answer was not responsive to them. What, then, was the effect of the failure of appellee to reply to the answer?

The case of the Louisville & Nashville R. R. Co. v. Copas, 95 Ky. 460, 26 S.W. 179, involved the identical question we have here, and in the opinion it is said: "The plaintiff in his petition had, by direct averment, negatived any negligence on his part, still it was incumbent on the defendant to rely by plea on such contributory negligence on the part of the plaintiff as brought about the injury, and but for which the accident would not have happened. Here was affirmative matter that required a reply, and the defendant was entitled to a judgment on the pleadings. Was its right to such a judgment waived by failing to make a motion for such a judgment? It is not pretended that any reply was filed, or offered to be filed, and, even upon motion for a peremptory instruction, the court would have been compelled to sustain the motion if apprised of the condition of the pleadings; but the court was not required to examine the pleadings for the purpose, unless some motion was made for a judgment."

In the case of Gore v. Illinois Cent. R. Co., 32 S.W. 754, 17 Ky. Law Rep. 799, the plaintiff had failed to controvert the affirmative allegations of the answer pleading contributory negligence. The opinion states the rule as follows: "For another reason the judgment must be affirmed. Section 386 of the Civil Code of Practice reads as follows: 'Judgment shall be given for the party whom the pleadings entitle thereto, though there may have been a verdict against him.' Appellant's failure to deny the allegations of the answer, which showed that the injury was the result of appellant's contributory negligence, entitled appellee to a judgment notwithstanding the verdict may have been for appellant. Had the jury returned a verdict for appellant, appellee could have moved the court to have returned a judgment for it, and, under the pleadings, such motion should have prevailed. This being true, appellant cannot complain, because in the condition of the pleadings the judgment must have gone for appellee, regardless of the instructions, evidence, or verdict." See, also, L. & N. R. Co. v. Schweitzer's Adm'r, 14 Ky. Law Rep. 855; White v. L. & N. R. R. Co., 22 S.W. 219, 15 Ky. Law Rep. 49; L. & N. R. Co. v. Mayfield, 35 S.W. 924, 18 Ky. Law Rep. 224; I. C. R. Co. v. Nall, 51 S.W. 168, 21 Ky. Law Rep. 281; and Brooks v. L. & N. R. Co., 71 S.W. 507, 24 Ky. Law Rep. 1318.

Under the pleadings in this case, the appellant was entitled to the peremptory instruction, regardless of the evidence, and the court erred in setting aside the order made at the October term, 1902. This being true, it follows that upon the return of the case the court should set aside the order granting appellee a new trial, and re-enter the first judgment. Gherkin's Adm'x v. L. & N. R. Co., 30 S.W. 651, 17 Ky. Law Rep. 201; Crowley v. L. & N. R. Co., 55 S.W. 434, 21 Ky. Law Rep. 1434; and L. & N. R. Co. v. Ricketts, 52 S.W. 939, 21 Ky. Law Rep. 662. The principle here enunciated is not militated against by that line of cases which hold that controverting a material allegation in a pleading, by alleging the converse of it in affirmative language, does not constitute new matter which must in turn be controverted. In those cases the question was, did the affirmative language constitute new matter? And in each case the court properly held it did not, and therefore no responsive pleading was required. That is not the case here. That the plea of contributory negligence is new, affirmative, material matter is not questioned, and, therefore, unless the provisions of the Code are to be abrogated, the failure to deny, for the purposes of the action, admits it to be true.

There is little cogency in the suggestion that because the allegation that appellee's intestate was exercising ordinary care at the time of his death is repeated in an amended petition filed after the answer, and the pleading was controverted of record, therefore the appellant must be held to have consented that the amendment denies the allegation of contributory negligence in the answer. The allegation of due care in the petition is not necessary to the appellee's cause of action; consequently it is immaterial, and we know of no rule which permits the repetition of an immaterial allegation to add anything to its value. In the science of pleading, as in mathematics, zero plus zero equals zero. Nor do we perceive upon what principle controverting an immaterial allegation puts it in a better attitude than if uncontroverted. The principle relied on in L. & N. R. Co. v. Copas, supra, is not obiter. It is decided there that the failure to controvert the allegation of contributory negligence was waived by failure to call the court's attention to the condition of the pleading by motion for judgment; but it was necessary to decide there was a defect before it could be decided that the defect was waived.

For the reasons indicated, the judgment is reversed for proceedings consistent with this opinion.

HOBSON and NUNN, JJ., dissenting.

HOBSON J. (dissenting).

It is provided by section 134 of the Civil Code of Practice "The court must, in every stage of the action, disregard any error or defect in the proceedings which does...