May v. Illinois Cent. R. Co.

• Decision Date: 23 May 1914
• Citation: 167 S.W. 477,129 Tenn. 521
• Parties: MAY v. ILLINOIS CENT. R. CO. ET AL.
• Court: Tennessee Supreme Court

167 S.W. 477

129 Tenn. 521

MAY v. ILLINOIS CENT. R. CO. ET AL.

Supreme Court of Tennessee.

May 23, 1914

Certiorari to Court of Civil Appeals.

Action by Rosa May against the Illinois Central Railroad Company and another. Judgment for defendants was reversed, and the cause remanded for new trial, by the Court of Civil Appeals, and defendants bring certiorari. Affirmed.

Lindsay B. Phillips, of Memphis, for plaintiff.

A. W Biggs, T. A. Evans, and C. N. Burch, all of Memphis, for defendants.

NEIL C.J.

This action was brought in the circuit court of Shelby county to recover damages for an injury alleged to have been inflicted upon the plaintiff by the defendant railway company.

The declaration alleged that "on or about the 12th day of September, 1912," plaintiff, while walking on defendant's track at a place which, for many years prior thereto, the public had been in the habit of using as a walkway, near the intersection of the said track and Iowa avenue, was negligently run upon by one of defendant's engines, after her danger became apparent to the defendant's servants, or by the exercise of ordinary care would have been apparent to them. It appears inferentially from an amendment made that a motion was entered by defendant to require the plaintiff to make her declaration more specific, but the order itself is not in the record. Thereupon the plaintiff filed the following amendment:

"Comes now the plaintiff in compliance with the order of the court heretofore granted herein, and amends her original declaration by inserting in the second paragraph, page 1 thereof, immediately after the words and figures 'that heretofore, to wit, on or about the 12th day of September, 1912,' the following words and figures to wit: 'at about 5 p. m.' "

The defendant interposed the general issue.

The plaintiff's testimony fully made out the case as to the fact that an injury had been inflicted on her by one of the defendant's engines while she was walking on the track as stated; that she was looking and listening all the time; that the track was straight, and she could have been seen by any one upon the lookout; and that she was run upon without warning. As to the time of the injury, she said that it occurred in the month of September, 1912, and, according to the best of her recollection, it was on the 12th of the month; but she could not be certain as to the day. She was sure it was near that time.

The defendant introduced a claim agent, in its employment at the time of the accident. He testified there was no report made of any accident by the employés of the company; that there were 19 tracks in the yard at the point where the accident is said to have occurred, and there were 19 switch engines working at the place on September 12, 1912; that he saw each of the trainmen, making 125 in all, and they knew nothing of the occurrence; that he then suggested to the company's attorney to put down a motion to make the declaration more specific, and when this was done he made a further investigation, but could not find the crew that manned the engine that is said to have struck the plaintiff; that the train crews and the engines were changed each day, and if the wrong day should be alleged in the declaration it would be impossible to find the right train crew.

The rest of the evidence was upon the extent of the injury.

The trial judge charged, among other things not excepted to, the following:

"The plaintiff alleges that the accident occurred on the 12th day of September, 1912. In order for the plaintiff to be entitled to recover in this case, it is necessary for her to show by a preponderance of the evidence that the accident occurred on that day. Unless you find that the accident occurred on the 12th day of September, 1912, and not at a much later date, you must return a verdict for the defendant."

The jury returned a verdict for the defendant, and thereupon an appeal was prosecuted to the Court of Civil Appeals. From that court the case has reached us by the writ of certiorari, and has been argued at the bar of the court.

In the Court of Civil Appeals the above-mentioned charge of the trial judge was held erroneous, and it was likewise adjudged in that court that there was no evidence to sustain the verdict, and the cause was remanded for a new trial. These rulings of the Court of Civil Appeals are assigned as error in this court.

The case turns upon whether the charge was correct. If it was necessary for the plaintiff to prove that the accident occurred on the 12th day of September, and on no other day, then there was no evidence to sustain the verdict, because, as already recited, the plaintiff was unable to state the date any more definitely than that it was either on the 12th or near that day.

The general rule is that it is not essential to prove with exactness the time as laid in the declaration. 7 Bac. Abridg. 477, 579; 1 Elliott on Ev. § 197; 31 Cyc. 706, 707. The point is ruled in the same way in one of our earliest cases, Martin v. McNight, 1 Tenn. (1 Overt.) 380, a qui tam action. In Thompson v. French, 18 Tenn. (10 Yerg.) 453, 458, the same proposition was laid down in a case involving a verbal or implied contract. See, also, the following cases cited in a note to Hewitt v. Pere Marquette R. R. Co., 41 L. R. A. (N. S.) 635, viz.: Rollins v. Atlantic City R. Co., 73 N. J. Law, 64, 62 A. 929; Gulf, T. & W. R. v. Lowrie (Tex. Civ. App.) 144 S.W. 367; Florida East Coast R. Co. v. Welch, 53 Fla. 145, 44 So. 250, 12 Ann. Cas. 210, 213, 214; Southern Railroad Co. v. Puckett, 121 Ga. 322, 48 S.E. 968. But where the date is an essential element of description in stating the cause of action it must be proved as laid. 1 Elliott on Ev. § 197; 31 Cyc. 706, 707.

In several cases it has been held that on application of the defendant, showing good cause, the complainant may be required to make the date more specific, or at least as specific as he is able to make it.

In Bogard v. Ill. Cent. R. R. Co., 116 Ky. 429, 76 S.W. 170, 3 Ann. Cas. 160, the facts were that the declaration or petition stated the cause of action, a personal injury to the petitioner, as having occurred "within the last 12 months." The defendant moved the court in writing to require the plaintiff to state the date of the injury complained of, the point where it occurred, the number of the train producing it, and the parties in charge thereof. Over the objection of the plaintiff the motion was sustained, and, on plaintiff's declining to plead further, the action was dismissed and the case was appealed to the Court of Appeals. The court said:

"There is no uncertainty or indefiniteness with respect to the nature of the charge made against the defendant. The difficulty under which the defendant claims to labor is that the plaintiff has not sufficiently specified the facts as to the time and place where the alleged acts of negligence occurred to enable it to intelligently defend the action. The defendant operates a trunk line through McCracken county, and it has perhaps 50 miles of track within the county. In course of 12 months thousands of trains pass over its road, operated by hundreds of different employés, at all hours of the day and night. The plaintiff necessarily has information as to the time and place of the accident, whether it was day or night, whether the injury was inflicted by a freight or passenger train; and a state of case might exist when it would be impossible for the defendant to secure this information so necessary for the proper conduct of its defense. When such a case arises, the trial court has inherent power to require such information to be furnished. This question was very fully considered in the case of Com. v. Snelling, 15 Pick. (Mass.) 321. The opinion in that case was delivered by Chief Justice Shaw. It was held that, where a person is indicted for a libel containing general charges of official misconduct against a magistrate, the court was authorized to require him previously to the trial, in case he intended to give the truth of the publication in evidence, to file a bill of particulars specifying the instances of misconduct which he proposes to prove. After a thorough review of all the authorities, he says: 'The general rule to be extracted from these analogous cases is that where, in the course of a suit, from any cause, a party is placed in such a situation that justice cannot be done in the trial without the aid of the information to be obtained by means of a specification or bill of particulars, the court, in virtue of the general authority to regulate the conduct of trials, has power to direct such information to be seasonably furnished, and in authentic form.' "

Again, quoting from Tilton v. Reecher, 59 N.Y. 176, 17 Am. Rep. 337:

"In actions upon money demands consisting of various items, a bill of particulars of the dates and description of the transactions out of which the indebtedness is claimed to have arisen is granted almost as a matter of course; and this proceeding is so common and familiar that, when a bill of particulars is spoken of, it is ordinarily understood as referring to particulars of that character. But it is an error to suppose that bills of particulars are confined to actions * * * for the recovery of money demands arising upon contract. A bill of particulars is appropriate in all descriptions of actions, where the circumstances are such that justice demands that a party should be apprised of the matters for which he is to be put for trial with greater particularity than is required by the rules

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