Payne v. New York, S.&W.R. Co.

Decision Date07 April 1911
CourtNew York Court of Appeals Court of Appeals
PartiesPAYNE v. NEW YORK, S. & W. R. CO.

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Second Department.

Action by James W. Payne against the New York, Susquehanna & Western Railroad Company. From an order of the Appellate Division of the Second Judicial Department (141 App. Div. 833,125 N. Y. Supp. 1011), modifying, and, as modified, affirming an order at Special Term, denying defendant's motion to cause the complaint to be made more definite and certain, plaintiff, by permission, appeals. Reversed, and questions certified in 127 N. Y. Supp. 1135, as proposed by plaintiff, answered.Rosslyn M. Cox and Abram F. Servin, for appellant.

Thomas Watts, Elbert N. Oakes, and John Bright, for respondent .

WERNER, J.

The learned Appellate Division of the Second Department has certified to us the following questions: (1) ‘In an action for damages for personal injuries by a servant against a master, is it proper for the plaintiff to plead in his complaint as one cause of action facts constituting negligence under the common law, facts constituting negligence under the employer's liability act of the state of New Jersey, and facts constituting negligence under the act of Congress known as the federal employer's liability act, or any two of said grounds of liability? (2) ‘Should a plaintiff be compelled to separate the facts constituting liability under the aforesaid acts, and plead them as separate causes of action?’ (3) ‘Under the complaint in this case was it proper to direct the plaintiff, in case he desired to rely upon any except the common-law liability of defendant, to separately state the facts constituting the statutory liability and plead them as separate causes of action?’

The complaint upon which these questions arise is simple and precise. It alleges that the defendant is a railroad corporation, operating a line of railroad within certain parts of this state and within parts of the state of New Jersey; that on April 13, 1910, the plaintiff was a brakeman employed by the defendant on a freight train which was being operated in the vicinity of Little Ferry Junction, in the state of New Jersey; that while the plaintiff in the exercise of his duties, and of due care, was standing upon one of the cars of said train, he was thrown therefrom by the sudden and violent movement thereof and sustained serious bodily injuries; that said injuries were caused by the improper movement of the train upon which the plaintiff was employed by the person in charge of the locomotive engine attached thereto, by the negligent direction of the conductor or other person in control of signals directing the movement thereof, and of some person who at the time had charge or direction of the movement of said train and was acting as superintendent with the authority and consent of the defendant; that there were defects in the brakes or coupling apparatus upon said train which could have been discovered by the use of ordinary care; that the caboose or car upon which plaintiff was stationed had no platform or guard rail, and that the grabirons thereon were defective and improperly and inadequately secured, which was due to the neglect of some person in the employ of the defendant intrusted with the duty of seeing that the cars and appurtenances were in proper and safe condition, which defects are also referred to as causes of the accident. Continuing, the complaint proceeds to allege that the train was being used by defendant as a common carrier between the states of New York, New Jersey, and elsewhere, and that the plaintiff was engaged in such commerce when he was injured, and this is followed by a recital of the provisions of the employer's liability act of the state of New Jersey, and an averment of the service of a notice in accordance with its provisions. These several allegations are set forth in the order in which we have stated them, without being specified or numbered as separate causes of action.

The defendant moved at Special Term that the complaint be made more definite and certain in the following particulars: (1) ‘So that it will set forth the physical cause of the accident by a plain statement of the facts by which the accident was caused or out of which it arose, and which is not accomplished by the mere allegation that he was thrown therefrom by a sudden and violent action of the train,’ nor by the similar allegation of the complaint that ‘said injuries were caused by the improper movement of the train upon which the plaintiff was at work.’' (2) ‘So that it will set forth plainly either a cause of action based on defendant's common-law liability, upon the New Jersey employer's liability act, or one upon the employer's liability act passed by the Congress of the United States in 1908.’ (3) ‘Or, if plaintiff desires to set forth three causes of action, that plaintiff separately state and number such causes of action.’

The court at Special Term denied the defendant's motion. An appeal was taken to the Appellate Division, where an order was made which purports to modify, but in fact reverses, the order of the Special Term. The order of the Appellate Division directs the plaintiff to separate and number the causes of action, if he intends to set forth a cause of action other than under the common law; and, since the order of the Special Term flatly denied the defendant's motion, it is apparent that there was in fact a reversal, although it was called a modification. The distinction is of no importance except to determine the form of the order which we are to make in disposing of this appeal. There are times when nothing is more troublesome than the simplicity of our Code pleading, although in the main it works out for good.

[1] The question in this case is whether the plaintiff has pleaded a single cause of action, or several distinct and separate causes of action. The Code of Civil Procedure (section 481) directs that a complaint shall contain a plain and concise statement of the facts constituting each cause of action without unnecessary repetition; and that, when a complaint sets forth two or more causes of action, the statement of facts constituting each cause of action must be separate and numbered. Section 483. The Code contains no definition of what constitutes a single or separate cause of action, and we must, therefore, draw upon other sources of inspiration for the solution of the question. The term ‘cause of action’ is one which has a technical and primary definition, although in practice it has also acquired a much wider secondary and colloquial meaning. In its simplest analysis the term ‘cause of action’ is synonymous with ‘the right to bring a suit,’ and that right is based upon the ground or grounds on which an action may be maintained. There is a more technical and scientific definition which is well stated by Pomeroy, in his standard work on Code Pleading, as follows: ‘If the facts alleged show one primary right of the plaintiff, and one wrong done by the defendant which involves that right, the plaintiff has stated but a single cause of action. * * * On the other hand, if the facts alleged in the pleading show that the plaintiff is possessed of two or more distinct and separate primary rights, each of which has been invaded, or that the defendant has committed two or more distinct and separate wrongs, it follows inevitably, from the foregoing principle, that the plaintiff has united two or more causes of action.’ Every lawyer knows that for practical and colloquial uses these terms are frequently given a much...

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