McCaffery v. N. Pac. Ry. Co.

• Decision Date: 16 February 1912
• Citation: 134 N.W. 749,22 N.D. 544
• Parties: McCAFFERY v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

22 N.D. 544

134 N.W. 749

McCAFFERY

v.NORTHERN PAC. RY. CO.

Supreme Court of North Dakota.

Jan. 29, 1912.

Rehearing Denied Feb. 16, 1912.

Syllabus by the Court.

A motion to strike out a portion of the complaint was properly denied, when made on the ground of variance between the complaint and the allegations of the justice court summons, where the complaint was filed and trial had thereon in justice court, and when the motion was made for the first time in the district court.

The owner of land may testify to its value, even though, if he was not such owner, his ignorance of its value would exclude his testimony.

Held, that the court properly submitted to the jury the question of negligence, which remained an issue of fact; and that the evidence is sufficient to sustain the verdict rendered.

Appeal from District Court, Morton Countty; Crawford, Judge.

Action by Patrick McCaffery against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ball, Watson, Young & Lawrence and E. T. Conmy, for appellant. W. H. Stutsman and J. E. Campbell, for respondent.

GOSS, J.

The facts in this case are simple and the law plain. Action is brought for damage to real property, caused by a fire set by an engine of defendant company. The origin of the fire and its course, the property destroyed thereby and its ownership in plaintiff, are uncontroverted and beyond question. All the error assigned may be included under four general subdivisions, as hereinafter considered.

[1] We will first discuss the motion of defendant, made in district court, to strike out a portion of the complaint, wherein the negligence complained of is specifically pleaded, which motion was made “on the ground that there is a fatal variance between the allegations of the complaint and the summons in justice court.” The summons, in substance, required the defendant to answer the complaint of the plaintiff, “who claims to recover of you the sum of two hundred dollars for damages done by you by a fire set by one of your engineers on your right of way at or near Lyons, on or about the 18th day of April, 1908,” with a notification that in default of answer judgment would be taken against defendant. On the trial in justice court, a written complaint was filed, pleading the negligence complained of to have been that of the company, and alleging wherein defendant was negligent and the resulting damages occasioned plaintiff. The jurisdiction of the justice, because of any insufficiency of the summons, was not attacked; nor is it here questioned. The district court in its discretion could have permitted the filing of the written complaint, had trial been had in the lower court on the summons without written pleadings. It could have permitted any amendment to any complaint necessary and within the cause of action sued upon. Such power or right cannot be seriously questioned. The summons had fulfilled its function; it had brought the defendant into court on an issue of damages claimed because of a fire alleged to have been set through defendant's negligence. On defendant's appeal taken generally with demand for new trial in district court, such court, with jurisdiction so conferred and unquestioned, could within its discretion, have allowed new pleadings to have been filed, formulating issues in furtherance of justice and within the cause of action sued upon. So long as such complaint stated but the cause of action, the nature of which defendant was by the justice's summons apprised in general terms, defendant cannot be heard to complain. Besides, this motion, based on the ground of variance between the summons and this complaint, could not be successfully urged for the first time in district court. Of such a variance, the law will take no cognizance. If the complaint filed in district court contains other matter than properly within the cause of action sued upon, relief is had without reference to or dependent upon the averments of the justice court summons, except as it may furnish evidence of what the cause of action is. This motion could not be made for the first time in the district court, after trial in justice court on said complaint had been had without objection. The motion was properly denied.

[2] The plaintiff was owner of the land burned over. After counsel for defendant had, on examination of the plaintiff, confused him as to how he would apportion any damage suffered between the injury to the trees and other alleged damage sustained, and demonstrated plaintiff to have been somewhat ignorant...