Martin v. City of Butte

• Citation: 86 P. 264,34 Mont. 281
• Parties: MARTIN v. CITY OF BUTTE.
• Decision Date: 11 June 1906
• Court: United States State Supreme Court of Montana

86 P. 264

34 Mont. 281

MARTIN v. CITY OF BUTTE.

Supreme Court of Montana

June 11, 1906

Appeal from District Court, Silver Bow County; J. B. McClernan Judge.

Action by Mary Pryor Martin against the city of Butte. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

L. P Forestell and J. F. Davies, for appellant.

C. N Davidson, for respondent.

HOLLOWAY J.

The plaintiff, Mary Pryor Martin, commenced this action against the city of Butte to recover damages for personal injuries sustained by her son, William Pryor, five years old, which injuries the plaintiff contends were caused by the negligence of the city of Butte. The answer denies the allegations of the complaint and pleads contributory negligence on the part of the plaintiff and on the part of the said William Pryor. A reply was filed denying the new matter set forth in the answer. The cause was tried to the court sitting with a jury. The jury returned a general verdict in favor of the plaintiff and answered certain special interrogatories submitted by the court. Upon motion of counsel for plaintiff the court rejected special finding No. 14, and entered judgment on the general verdict and other special finding in favor of the plaintiff, from which judgment defendant appealed. The only questions which require attention here are: (1) Does the complaint state a cause of action in favor of the plaintiff? (2) Did the court err in giving instruction No. 5, asked by plaintiff? And (3) did the court err in setting aside special finding No. 14?

1. It will not do to say that it is sufficient that the complaint states a cause of action against the defendant. To support this judgment the complaint must state facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff. Farris v. Jones, 112 Ind. 498, 14 N.E. 484, and cases cited. In order to maintain this action the plaintiff must bring herself within the provisions of section 578 of the Code of Civil Procedure, which section, so far as applicable to this case, reads as follows: "Sec. 578. A father, or in case of his death, or desertion of his family, the mother, may maintain an action for the injury or death of a minor child." The complaint does not anywhere allege that the child's father was dead or had deserted his family at the time this action was commenced, and, in the absence of such allegation, the complaint does not state a cause of action in favor of the mother of the child. The provisions of the statute quoted above appear too plain to require discussion. A statute similar to our section 578, above, was directly passed upon in Louisville & St. L. R. Co. v. Lohges, 6 Ind. App. 288, 33 N.E. 449, and the doctrine announced above fully sustained. The state of Arkansas also has a statute similar to section 578, above, which provides: "Where the person killed or wounded be a minor, the father, if living; if not, then the mother; if neither be living, then the guardian-may sue for and recover such damages as the court or jury trying the case may assess." In St. Louis, I. M. & P. R. Co. v. Yocum, 34 Ark. 493, it is said: "In the case of a minor killed by the running of a train, the father, if living, must sue. If the mother sues, she must show affirmatively and positively that the father is dead. Nothing short of that will answer." See, also, Savannah Ry. Co. v. Smith, 93 Ga. 742, 21 S.E. 157. This disposes of the like objection made to instructions 1 and 2 given.

2. Instruction No. 5, given to the jury at the instance of the plaintiff, is as follows: "Instruction No. 5. The jury are instructed that it is the duty of the city of Butte to see to it that the streets and sidewalks within the corporate limits of the city are kept in a safe and passable condition and, failing in this duty, then the city is and becomes liable to parties who may sustain injury or damages by reason of such failure of the city to keep the streets and sidewalks in a safe condition; and you are instructed that if you believe...