Seffert v. Northern P. Ry. Co.

• Decision Date: 05 March 1907
• Citation: 49 Or. 95,88 P. 962
• Parties: SEFFERT v. NORTHERN PAC. RY. CO.
• Court: Oregon Supreme Court

88 P. 962

49 Or. 95

SEFFERT v. NORTHERN PAC. RY. CO.

Supreme Court of Oregon

March 5, 1907

Appeal from Circuit Court, Columbia County; Thomas A. McBride Judge.

Action by Irvin Seffert against the Northern Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This is an action by respondent, Seffert, versus appellant to recover the value of a cow killed by a train of the appellant at Deer Island Station. Respondent's cow was at large on the range with other cattle, and, at the time of the killing, was grazing on the side track of appellant at said station about 600 feet north of the south end of the side track, and about 200 feet north of a car standing on the side track. The south end of the side track is about a quarter of a mile north of the station. The train that struck the cow was the northbound passenger, running about 35 miles an hour. It did not stop at the station.

O.C Spencer, for appellant.

W.H. Powell, for respondent.

EAKIN J.

After the evidence was taken, appellant's counsel moved the court for judgment on the pleadings for the reason that the denial of the reply is insufficient to put at issue the affirmative allegations of the answer. The denial of the reply is in the following words: "Denies each and every allegation thereof except such facts as are set forth in this plaintiff's complaint admitted by said answer." This is equivalent to a denial of each and every allegation of the answer except as in the complaint alleged. The answer to the complaint, after the denial, which is positive and general, by affirmative allegations practically admits that the cow went upon the track, as alleged, and was killed, and would probably carry with it the further admission, inferentially at least, that the cow was killed by the appellant's train.

In Veasey v. Humphreys, 27 Or. 515, 518, 41 P. 8, 9 Mr. Justice Wolverton, in speaking of such defenses, says "New matter pleaded under this statute, which goes to defeat the plaintiff's cause of action, logically speaking, if not expressly, admits by implication a real or apparent right in plaintiff to be thus avoided. Such a plea at common law was by way of confession and avoidance, in which the defendant had to give color to the plaintiff." To the same effect is Watkinds v. Southern P. Co. (D.C.) 38 F. 711, 4 L.R.A. 239. The plaintiff here sought to qualify his denial contained in the reply, so as not to controvert matter alleged in his complaint. Denials should not be recklessly made, as they are made under oath equally with the affirmative matter, and they must be in accordance with the truth, and therefore, where the traverse is not intended to be complete (that is, some of the matters alleged are not controverted), the denial cannot be a positive denial, but must be qualified to conform to the truth. There is a conflict in the authorities as to the sufficiency of such a denial as the one in question here, a few states holding that it is a nullity, others that it is bad pleading, but must be remedied by motion to strike out or to make more definite, and if it is not so attacked the irregularity is waived. But the better rule seems to be that a general denial of each and every allegation of the complaint, except as hereinafter admitted, qualified or stated, is a proper form of denial, if the matters...