Scholl v. Belcher

• Decision Date: 26 November 1912
• Citation: 63 Or. 310,127 P. 968
• Parties: SCHOLL v. BELCHER.
• Court: Oregon Supreme Court

127 P. 968

63 Or. 310

SCHOLL v. BELCHER.

Supreme Court of Oregon

November 26, 1912

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action of Mary J. Scholl, as administratrix of the estate of Charles Scholl, against C.T. Belcher. From judgment for plaintiff defendant appeals. Reversed.

Bean J., dissenting.

The complaint in this action contains two counts each nearly identical with the other. It is stated in effect that on February 7, 1910, plaintiff was duly and regularly appointed administrator of the estate of Charles Scholl, deceased, by the county court of Multnomah county, Or., and during all the time mentioned in the complaint the defendant was and now is the proprietor and manager of the Collins Springs Hotel at Collins Springs, in the state of Washington. The complaint then goes on to state: "That on and prior to the 24th day of August, 1908, the deceased, Charles Scholl, was a guest at the Collins Springs Hotel in the state of Washington, and that during said time the said hotel was under the care, control, and management of the defendant, who was and is now the proprietor and manager thereof; and that on the night of the 23d or the morning of the 24th day of August, 1908, and during the nighttime, the particular hour thereof being to the plaintiff unknown, the said Charles Scholl fell from the porch of the said Collins Springs Hotel to the ground, whereby his leg was broken, and he was severely crippled, wounded, and bruised in and upon his arms shoulders, back, and breast, and injured internally and externally, and rendered unconscious, and was by said defendant allowed to remain and lie on the ground outside of said hotel and near said porch during the remainder of the night, and that said night was very cold at Collins Springs and the said Charles Scholl was thinly clad and remained so exposed to the elements during the remainder of the night and because of his injured condition aforesaid and the resulting weakness therefrom, and because of his inability to help himself, and because of his exposure to the cold during said night, the said Charles Scholl then and there contracted pneumonia, and, because of the said injuries and the sickness so contracted from said exposure as aforesaid, the said Charles Scholl on the 26th day of August, 1908, died in Portland, Multnomah county, Or. That the said injuries and death of the said Charles Scholl were caused by the carelessness and negligence of the defendant in the following manner, to wit: That the porch of the said hotel is more than seven feet above the surface of the ground, and because thereof is dangerous, and the said defendant carelessly and negligently failed, neglected, and refused to place and have any railing along and around said porch so as to prevent the said Charles Scholl and his other guests from falling therefrom; and the said night of August 23d, 1908, and the morning of August 24th, 1908, was very dark, and the said defendant carelessly and negligently failed, neglected, and refused to have any lights upon and around said porch to warn the said Charles Scholl and his other said guests that the same was dangerous on account of its height from the ground, and on account of the lack of said railing and the lack of lights upon and around said porch the said Charles Scholl fell therefrom and was injured and crippled as aforesaid, and if the said porch had been supplied with any railing, or had any lights thereon, the said Charles Scholl would not have fallen therefrom and would not have been crippled, injured, and bruised as aforesaid. That the said defendant, after the said Charles Scholl fell from said porch and became and was crippled, injured, and bruised as aforesaid, was notified of and had knowledge of the condition of the said Charles Scholl, and carelessly and negligently failed and neglected to pick him up and care for him, and carelessly and negligently allowed the said Charles Scholl to remain out during the remainder of the said night, and thereby, by said exposure and neglect, caused the said Charles Scholl to contract pneumonia, and because of all of said careless and negligent acts of the said defendant, and because of the injuries received by the said Charles Scholl by reason of the said carelessness and negligence of the said defendant, and because of the said sickness and ailment contracted by reason thereof, the said Charles Scholl on the said 26th day of August, 1908, died in Portland, Multnomah county, Or."

After alleging that the decedent was 32 years old and was earning wages at $6 per day, the plaintiff claims damages in the sum of $7,500. The foregoing quotations are from the first count. The second count is substantially like the first and claims damages in the same sum.

A general demurrer to each of the counts having been overruled, the defendant answered denying each of the allegations in each of the counts except that the defendant admitted that he was the proprietor of the hotel named and that the deceased was staying there. As an affirmative defense the answer alleged, in effect, that the decedent drank intoxicating liquors to such excess while he was staying at the hotel that he became drunk and went out of the building in the latter part of the night after all others on the premises had retired, and by his own carelessness broke his leg and suffered the injuries of which the administratrix complains, all without the knowledge of the defendant, and that, as soon as the defendant discovered that the deceased had sustained his injuries, he at once did everything he possibly could to obtain medical assistance for him and to obtain relief for the decedent. The new matter of the answer was traversed by the reply. A jury trial resulted in a verdict and judgment in favor of the plaintiff, from which the defendant appeals.

T.B. McDevitt and Edward Mendenhall, both of Portland, for appellant.

Charles E. Lenon, of Portland (Jeffrey & Lenon, of Portland, on the brief), for respondent.

BURNETT, J. (after stating the facts as above).

It is contended by the defendant that the court ought to have dismissed the action because it appeared in testimony that the decedent had been for a long time prior to his death, and then was, a resident and inhabitant of Marion county, Or., and hence that the county court of Multnomah county had no jurisdiction to appoint the plaintiff administratrix of his estate. This question was raised by a motion for non-suit at the close of the plaintiff's case, by an application to the court for leave to file an amended answer, in which there was added to the allegations and denials of the answer already quoted the averment that the decedent was, at the time of his death, a resident of Marion county, Or., which application to file a second amended answer was denied by the court. Under the authority of Slate's Estate, 40 Or. 351, 68 P. 399, this question might have been made available in behalf of the defendant if it had been urged by a proper plea in abatement. It is provided by section 68, L.O.L., that the defendant may demur to the complaint within the time required by law to appear and answer when it appears upon the face thereof, among other things, that the plaintiff has not legal capacity to sue. Section 71, L. O.L., says that, "When any of the matters enumerated in section 68 do not appear upon the face of the complaint, the objection may be taken by answer." The rule is laid down in section 72, L. O.L., that, "if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court and the objection that the complaint does not state facts sufficient to constitute a cause of action."

If, in truth, on account of the wrongful act or omission of the defendant, the death of the decedent was caused, some administrator of the latter's estate could maintain an action at law therefor against the defendant, if the deceased himself might have maintained the action had he lived. L.O.L. § 380. Even if the amended answer tendered had been received and filed, it was defective in this respect because it joins the matter in abatement to the plea in bar. The plea in abatement is tantamount to the defendant's saying to the plaintiff: "Admitting that your decedent met his death as you state, you have no capacity to bring this suit on account of his residence being in Marion county, whereas your letters of administration were issued by the county court of Multnomah county." This was joined to the plea in bar, which utterly denies all the statements of the complaint except as noted, as well as alleging new matter in justification. The rule is well established in this state that a plea in abatement is waived by joining it with a plea in bar. Hopwood v. Patterson, 2 Or. 49; Fiore v. Ladd, 29 Or. 528, 46 P. 144; Morgan's Estate, 46 Or. 233, 77 P. 608, 78 P. 1029; Rafferty v. Davis, 54 Or. 77, 102 P. 305; Wilson v. Wilson, 26 Or. 251, 38 P. 185; Owings v. Turner, 48 Or. 462, 87 P. 160. Under this state of the pleading, the attack upon the plaintiff's representative character can avail the defendant nothing here.

The principal testimony on the part of the plaintiff was given by a young lady who was a guest at the hotel at the time of the wrongs complained of. She testified, in substance, that about half past two o'clock in the morning of August 24th she was awakened by some one calling for help. After listening awhile, she took her lamp and went to the room of the defendant and told him that there was something the matter. He arose and went with her to the rear of the hotel on a porch where they saw some object lying in a roadway below. The defendant inquired, "What is the matter down there?" and...