Rucker v. Omaha & G. Smelting & Refining Co.

• Decision Date: 11 May 1903
• Parties: RUCKER v. OMAHA & G. SMELTING & REFINING CO. et al.
• Court: Colorado Court of Appeals

72 P. 682

18 Colo.App. 487

RUCKER v. OMAHA & G. SMELTING & REFINING CO. et al.

Court of Appeals of Colorado

May 11, 1903

Appeal from District Court, Arapahoe County.

Action by A.W. Rucker against the Omaha & Grant Smelting & Refining Company and others. From a judgment for defendants, plaintiff appeals. Reversed.

Wells &amp Chiles, F.M. Taylor, and Jno. G. Taylor, for appellant.

Thomas Bryant & Lee and E. Harvie Smith, for appellees.

GUNTER J.

Appellant sued one of appellees (the Omaha & Grant Smelting & Refining Company, hereinafter designated as appellee), stating his cause of action in two counts--the first, upon an undertaking in attachment for damages sustained in the wrongful suing out of the writ; the second, for damages for malicious prosecution in its issuance. A general demurrer to the complaint was overruled. Appellee then secured an order requiring appellant to elect upon which count to proceed. Thus compelled, he chose the first, and thereon the case went to trial. There the court held that the evidence adduced failed to make a case, as against appellee, on the cause of action pleaded. A judgment of nonsuit followed. Therefrom, this appeal. Several reasons for reversal are urged. One--error of the court in requiring the election--is decisive. Appellee denies this was error, and says, if so, it was waived by plaintiff going to trial upon the remaining count.

On account of the condition of the record, and possible future litigation, we desire to be understood as confining this ruling to the one question stated; and, in reaching our conclusion, we assume that the first count of the complaint as originally constructed, and as existing when the election was required, was upon contract. That the second count was in tort has not been questioned. We make the assumption as to the first count without looking into its averments, because appellee, in support of its motion to require the election conceded this count to be upon contract, and the court acted thereon in making the order. Throughout the trial below, and in the original briefs, this count was treated as upon contract, and not until the oral argument of appellee was the point made that it was in tort. Appellee will not now be permitted, in its effort to secure an affirmance, to deny what it conceded in securing the order of election. "The rule under discussion is no more than an application of the familiar doctrine of election, which has its foundation in the old adage that 'a man cannot blow both hot and cold,' and hence there is nothing novel in it. The rule is one required by logic and practical considerations, since, without it, inconsistent positions might be assumed, without any other restriction than that of the party's pleasure. But it is something more than a mere logical rule for securing consistency, inasmuch as its principal purpose is to prevent deception, since, without it, parties might mislead their adversaries by assuming one position in the trial court, and another on appeal. Nor could there be an orderly administration of justice without such a rule." Appellate Procedure (Elliott) § 496. See, also, Id. §§ 489, 490, 492.

Whether error was committed in making the order requiring an election between counts depends upon the application to the facts of section 49, Mills' Ann.Code: "The complaint shall contain *** a statement of facts constituting the cause of action in ordinary and concise language without unnecessary repetition." In Cramer v. Oppenstein, 16 Colo. 504, 511 27 P. 716, 718, where three separate statements of the same cause of action were permitted, the court said: "Duplicate statements for the same cause of action are not absolutely prohibited. They may sometimes be necessary, and therefore permissible--as where there is a reasonable cause to believe that the plaintiff cannot safely go to trial upon a single statement. There may be circumstances under which the plaintiff cannot reasonably be expected to anticipate the evidence in advance of the trial." In Manders v. Craft, 3 Colo.App. 236, 32 P. 836, plaintiff sued to recover for services rendered as a real estate agent, stating his cause of action in two counts. The trial court denied defendant's motion to require an election. In sustaining the ruling, the court said: "The obvious intention of the system of code pleading is that it shall be more equitable than that of the common law. To so construe as to render it more restrictive would defeat the intention." In Leonard v. Roberts, 20 Colo. 88, 90, 36 P. 880, the cause of action was stated in two counts. The lower court refused an application for an order requiring an election. In the course of the opinion of affirmance, it was said: "It is sometimes impossible for the plaintiff to be certain in advance of the real ground of liability, and while double pleadings should be restricted within the narrowest limits possible without unnecessarily endangering plaintiff's rights, subjecting him to the danger of a nonsuit, in this case the trial court properly refused the defendants' motion to compel the plaintiff to elect upon which count he would proceed." In Whitney et al. v. The Chicago & N.W. Ry. Co., 27 Wis. 327, cited with approbation in Manders v. Craft and Leonard v. Roberts, supra, it is said: "It might be difficult to tell in advance what the evidence would show in regard to the liability of the defendant, and what facts would appear on the trial. *** It is said that plaintiff ought to...