Palmer v. Utah And North Railway Company

• Decision Date: 23 February 1887
• Citation: 2 Idaho 315,13 P. 425
• Parties: PALMER ET AL. v. UTAH AND NORTH RAILWAY COMPANY
• Court: Idaho Supreme Court

13 P. 425

2 Idaho 315

PALMER ET AL. v. UTAH AND NORTH RAILWAY COMPANY

Supreme Court of Idaho

February 23, 1887

PLEADING-SPECIAL DEMURRER.-Defects in pleading which make them uncertain are special grounds of demurrer under our code, which cannot be taken advantage of on general demurrer.

IMPROPER CONDUCT OF PARTY-INFLUENCING JURY-GROUND FOR REVERSAL.-A judgment in favor of a party guilty of improper conduct calculated to influence the jury, or any juror, in their favor in rendering the verdict, should be reversed and a new trial granted on the ground of public policy.

RAILROAD CORPORATION-NEGLIGENCE-SERVANTS-FELLOW-SERVANTS.-A railroad corporation is liable for damages to employees injured through the negligence of their agents or servants who are invested with a controlling or superior duty in the management of the business of the corporation.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Reversed and remanded.

P. L Williams and Homer Stull, for Appellant.

To determine who is the proper party plaintiff, the complaint must show, by averment, whether the deceased was a minor or major, and the plaintiff must then be the person indicated by the statute. The essential facts in every case must be averred directly, and cannot be left to inference. ( Harris v. Hillagass, 54 Cal. 463; Stringer v Davis, 30 Cal. 318.) An employee in the bridge department of a railroad and a telegraphic operator are fellow-servants. (Russell v. Railroad Co., 17 N.Y 134; Laning v. Railroad Co., 49 N.Y. 521, 10 Am. Rep. 417; Wonder v. Railroad Co., 32 Md. 411, 3 Am. Rep. 143, and note; Lawler v. Railroad Co., 62 Me. 463, 16 Am. Rep. 492, and note; Seaver v. Railroad Co., 14 Gray, 466; Gilman v. Railroad Corp., 10 Allen, 233, 87 Am. Dec. 635.) Misconduct of a suitor is sufficient to reverse a judgment. (Rose v. Smith, 4 Cow. 17, 15 Am. Dec. 331; People v. Douglass, 4 Cow. 26, 33, 15 Am. Dec. 332; Hilton v. Southwick, 17 Me. 303, 35 Am. Dec. 253, and note; Brandt v. Fowler, 7 Cow. 562; Wilson v. Abrahams, 1 Hill, 207; Jackson v. Smith, 21 Wis. 26; State v. Hartmann, 46 Wis. 248, 50 N.W. 193; McIntire v. Hussey, 57 Me. 493; Phillipsburgh Bank v. Fulmer, 31 N. J. L. 52, 86 Am. Dec. 193.) The proof should have been confined to the defect alleged. ( Batterson v. Railway Co., 49 Mich. 184, 13 N.W. 508; Morse v. Railway Co., 30 Minn. 465, 16 N.W. 358.)

H. M. Bennett and Smith & Wright, for Respondents.

Where a defect of parties exists, the objection must be taken by demurrer, or it will be waived. (Dunn v. Tozer, 10 Cal. 167; Mott v. Smith, 16 Cal. 557; Sampson v. Schaeffer, 3 Cal. 202; Burroughs v. Lott, 19 Cal. 125; Barber v. Reynolds, 33 Cal. 497.) The fact that deceased was riding on a pass in no wise affects the question of defendant's liability. (Railroad Co. v. Derby, 14 How. 483; Ohio etc. Ry. Co. v. Selby, 47 Ind. 492, 17 Am. Rep. 719; Railroad Co. v. Muhling, 30 Ill. 23; The New World v. King, 16 How. 472; Railroad Co. v. Horst, 93 U.S. 296; Railroad Co. v. Lockwood, 17 Wall. 374, 10 Am. Rep. 366, note.) The deceased was killed by the negligence of either telegraph operator or train-dispatcher; both of them were agents of defendant, and were not "fellow-servants" of deceased, within the meaning of that term as used in law. (Gillenwater v. Railroad Co., 5 Ind. 339, 61 Am. Dec. 101; Bowers v. Railroad Co., 4 Utah, 215, 7 P. 251; Cunningham v. Railway Co., 4 Utah, 206, 7 P. 799; Kielley v. Mining Co., 3 Saw. 437, Fed. Cas. No. 7760; Chicago etc. R. R. Co. v. Morando, 93 Ill. 302, 34 Am. Rep. 168; Darrigan v. Railroad Co., 23 Am. & Eng. R. R. Cas. 438; Railway Co. v. Ross, 112 U.S. 377, 5 S.Ct. 184; Railroad Co. v. Crockett, 19 Neb. 139, 26 N.W. 921; Chicago etc. R. Co. v. Lundstrom, 16 Neb. 256, 49 Am. Rep. 718, 20 N.W. 198; Railway Co. v. Condon, 17 Am. & Eng. R. R. Cas. 583; Railroad Co. v. Collins, 5 Am. Law Reg., N. S., 266.)

BUCK, J. Broderick, J., concurring. Hays, C. J., expressing no opinion.

OPINION

BUCK, J.

On the eleventh day of December, 1885, the defendant, a corporation, was running a passenger train on its road, which was derailed, and thrown from the track, and one William O. Palmer, an employee of defendant, riding thereon at the time of the accident, was killed by a car falling upon him. It is claimed by plaintiffs that the accident was caused by a broken rail which defendant carelessly and negligently allowed to be and remain on the track. The action was brought by Linnie M. Palmer, widow of deceased, and Alfred Perle Palmer, minor son of deceased, by W. F. Fisher, guardian of said minor. The defendant interposed a general demurrer to the complaint, on the usual ground, "that it does not state facts sufficient to constitute a cause of action."

That part of the complaint relied upon by attorneys for defendant in the argument of the demurrer is in the following words: "That the plaintiff Linnie M. Palmer is the widow of William O. Palmer, deceased, and that the plaintiff Alfred Perle Palmer is the son of Linnie M. Palmer and William O. Palmer, deceased; that Alfred Perle Palmer, one of the plaintiffs herein, is an infant under the age of ten years, and that W. F. Fisher was duly appointed such guardian ad litem by the Hon. J. B. Hays, judge of this court, on the twenty-eighth day of April, 1886; and that said deceased died intestate."

It is agreed by both parties that the sufficiency of the complaint is to be determined by sections 191 and 192 of our code, which are as follows: "Sec. 192. When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death." Section 191 provides that, if the deceased is a minor, the father and mother may bring the action.

The appellant argues that the complaint is bad in that it does not allege whether the deceased was a minor or major. He claims, in terms, that the question is not whether there is a cause of action in the abstract, but whether the facts stated constitute a cause of action in favor of plaintiffs. We are not prepared to concede the correctness of appellant's position. We think the question is: 1. Whether there is a cause of action; and, 2. Whether the plaintiffs are the proper parties. There can be no doubt that they are the parties directly interested in the action. The appellant claims that whether they are the proper parties to bring the action under the code depends upon whether the deceased was a minor or major, and that that is not shown by the complaint. It seems that such omission, if such exists, would cause only an uncertainty, which under our code is a distinct cause of demurrer. Such an objection does not go to the substantive cause of action, and we think cannot be taken advantage of under a general demurrer. (Blanc v. Klumpke, 29 Cal. 156; Slattery v. Hall, 43 Cal. 191.)

In Jamison v. King, 50 Cal. 132, the defendant demurred to the complaint on the ground that it was ambiguous, unintelligible, and uncertain, in that certain facts did not appear therein. The court says: "The defendant had the right to be informed whether the plaintiff claimed that the instrument was of no effect because not delivered, or, having been delivered, that it operated only as donatio causa mortis. Defendants are entitled to a distinct statement of the facts by plaintiff claimed to exist. The complaint is ambiguous and uncertain, and the demurrer ought to have been sustained." So, in the case at bar, perhaps the defendant had a right to be informed as to whether the deceased was a minor or a major, in order to enable it to know whether the plaintiffs were proper parties, and, if this did not appear by the complaint, it was ambiguous and uncertain; but this defect must be specially set out in the demurrer, and cannot be taken advantage of upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

The second assignment of error is that the court erred in refusing a continuance on the ground of the absence of one Braddock, a witness for defendant. An inspection of the affidavit upon which the motion for a continuance was made shows that said witness would testify that he was on the scene of the accident soon after it occurred; that said Braddock possessed special knowledge of the condition of the defendant's roadway and track at and about the point of the accident; that said witness supervised the removal of said broken rail, and personally inspected the same; that the broken end or surface showed a complete and entirely new fracture, and that the external appearance thereof gave no indication of any defect therein; and that, by reason of the special knowledge of said witness as an expert in the structure and maintenance of roadway and track of a railway, and the particular characteristics and distinguishing features of the fractures of iron and iron rail, the defendant will not be able to supply the proof, etc. The peculiarity of this affidavit, as considered in connection with appellant's argument, is that it does not allege that said witness is an expert in any sense, or that he has any special knowledge as an expert. It does not set out that witness has any special knowledge of the condition of defendant's roadway and track at and about the point of the accident, and it nowhere alleges that he has any other special knowledge. The substantive fact desired to be proven by said witness was that the appearance of the broken rail indicated a complete and entirely new fracture, and the external appearance thereof gave no indication of any defect therein. Although for some reason the record does not show it, yet it is admitted by the attorneys in this court that the...