This is
an action to recover damages for the death of William
Whitten, alleged to have been caused by the wrongful act
neglect, and default of the defendant. The fifth paragraph of
the complaint reads as follows: 'That said defendant at
all times mentioned in this complaint, and for a time long
prior to the date of the death of said deceased, was engaged
in the business of generating, producing, and distributing
electricity and supplying the same for light and other
purposes, at said county of Washoe, to the general public for
hire and for a profit. That said corporation defendant, in
consideration of a required compensation, to wit, ten cents
per thousand watts for all electricity used, was, on the day
of the death of said William Whitten, and for more than six
months prior thereto, engaged in supplying J. E. Monroe with
electricity for lighting purposes at his residence, to wit
No. 716 North Center street, in said city of Reno, and county
of Washoe. That it was the duty of said company, in so
furnishing said electricity, at all times to have and
maintain a safe plant, machinery, poles, wires, conduits
converter boxes, grounding devices, transformers, ground
detectors, lamps, sockets, insulators, and other appliances
for the safe and proper generation, storing, and distribution
of electricity throughout said city of Reno and to the said
premises of the said Monroe, and also to inspect and examine
the same from time to time, and at all times to maintain and
keep the same in good repair and in good and safe condition
so that the said Monroe and his family and the occupants of
his house, and each and all persons lawfully in and about the
same, might safely use the said electricity upon said
premises without danger of damage, injury, or death to them
or to either or any of them. That the said William Witten, at
said time of his death, to wit, on the afternoon of the 24th
day of February, 1904, and for one hour prior thereto, was
actually engaged at the instance of said Monroe, and for his
benefit, in cutting a door through one of the interior walls
on the upper floor of said residence, and for said services
the said Monroe
promised and agreed to pay said William Whitten at the rate
of three and one-half dollars per day. That at said time, to
wit, during the afternoon of said 24th day of February, 1904,
and prior thereto, the said defendant negligently failed to
discharge its said duties hereinbefore alleged, so that at
the time aforesaid when the said William Whitten took into
his hands a sixteen candle power incandescent electric light
bulb or lamp in the room on said premises where he was then
engaged in cutting said door, for the purpose of inspecting
his said work, and without any carelessness or negligence of
any kind whatever on his part or on the part of said Monroe,
he received into and upon and through his body a severe and
deadly charge and current of electricity, whereby he, the
said William Whitten, was then instantly killed, through the
wrongful act, neglect, and default of defendant, as
aforesaid.'
The
defendant interposed a demurrer to the complaint upon two
grounds: '(1) That said complaint does not state facts
sufficient to constitute a cause of action against this
defendant, in this: (a) That it does not appear from said
complaint that the death of the said William Whitten,
deceased, was caused by any negligent act or omission on the
part of this defendant. (b) That it is not shown by said
complaint how, or in what respect, or by what act or
omission, this defendant wrongfully, negligently, or by
default caused the death of the said William Whitten. (c)
That said complaint fails to show any negligent act or
omission causing the death of the said William Whitten. (d)
That the death of the said William Whitten is not shown to
have been caused by the negligence, wrongful act, or default
of this defendant. (e) That it does not appear therefrom that
this defendant was guilty of any wrongful act, neglect, or
default causing the death of the said William Whitten. (f)
That it appears from said complaint that the said William
Whitten was instantaneously killed. (g) That it does not
appear from said complaint that it was necessary, or not a
negligent act on his part, to take into his hands the
incandescent electric light bulb or lamp, as therein alleged.
(h) That it does not appear from said complaint that this
defendant furnished, or that it was the duty of this
defendant to furnish or maintain, the incandescent electric
light bulb which the said William Whitten took into his hands
was either safe or sufficient for the purposes used, or that
this defendant furnished or was required to furnish said
electric incandescent light bulb or lamp. (2) That said
complaint is uncertain, in this: (a) That it does not appear
therefrom in what respect this defendant negligently failed
to discharge any or all of the duties therein alleged. (b)
That it does not appear therefrom what act or acts of this
defendant were negligently performed by it. (c) It does not
appear therefrom what duty or duties defendant negligently
failed to discharge. (d) It does not appear therefrom how, or
in what respect, this defendant failed to perform any or all
of the duties therein alleged. (e) It does not appear
therefrom by any act done, or by the failure to perform any
duty therein alleged, that the death of the said William
Whitten was wrongfully, negligently, or by default caused by
this defendant. (f) That said complaint is so uncertain and
indefinite that this defendant is unable to ascertain
therefrom what act or omission of it caused the death of the
said William Whitten, and the defendant is unable to answer
the same. (g) That said complaint is so uncertain that it
does not give notice to this defendant of any negligent act
or omission, or how, or in what respect, this defendant by
any negligent act or omission caused the death of the said
William Whitten.'
HAWLEY
District Judge (orally).
It will
be observed that the portion of the fifth paragraph of the
complaint, which relates to the duty of the defendant in the
several particulars therein named, does not contain any
evidentiary or ultimate fact. Such averments are generally
held to be wholly insufficient unless connected with a
statement of the
facts from which the law raises the duty. This general
principle is too well settled to require extended discussion.
14 Ency.Pl.& Pr. 332, and authorities there cited.
In
Breese v. Trenton R. Co. (N.J. Sup.) 19 A. 204, the
court, is considering an averment of like character, said:
'But
this description of the duty of the company is not the
statement of a fact. It adds no force whatever to the case
laid in the record, and therefore may, without loss, be
always omitted; for it is simply and exclusively the
pleader's averment of the legal efficacy of the facts
stated. Obviously, such construction can have no effect on
the mind of the court. * * * The fault of these counts is
that they do not show, by a statement of facts, that the
duty which they assert has been violated has any existence.
The rule upon the subject is thus stated by Addison in his
work on Torts: 'The decisions,' observes Lord
Campbell, 'show that the allegation of duty in
declaration is in all cases immaterial, and ought never to
be introduced; for if the particular facts set forth raise
the duty, the allegation is unnecessary, and, if they do
not, it will be unavailing.' If the particular facts
stated in the declaration do not raise the duty, it cannot
be established by other facts not stated. The declaration
therefore must stand or fall by the facts stated.
Negligence creates no cause of action unless it expresses
or establishes some breach of duty.'
Clyne
v. Helmes, 61 N.J. Law, 358, 361, 39 A. 767; City of
Chicago v. Selz, 202 Ill, 545, 547, 67 N.E. 386;
McCune v. Norwich Gas Co., 30 Conn. 521, 79 Am.Dec.
278; Hewison v. City of New Haven, 34 Conn. 136, 91
Am.Dec. 718.
There
are numerous authorities which hold that a complaint in tort
alleging negligence must have the requisite definiteness to
inform the defendant of the cause of action, and the
particular act or omission constituting the tort. King v.
Electric Ry. Co. (Del. Super.) 41 A. 976; Railroad
Co. v. Kistler (Ohio) 64 N.E. 130; Taite v. Boorum
(Sup.) 74 N.Y.S. 874; 5 Ency. Pl. & Pr. 863. The
debatable question is whether or not the subsequent averment
in clause 5 is sufficient. This question is important, and
its determination requires careful consideration. It is
contended by the defendant that this averment is weakened by
the use of the words 'hereinbefore alleged' at the
commencement of the averment, and by the words 'as
aforesaid' at the end of the averment. There is much
force in this statement. It is not so clear, definite, and
certain as it might have been made. But, independent of this
criticism, it is contended that this portion of the complaint
does not state any specific act of negligence, or any fact
which would constitute a cause of action under any recognized
rule of state codes or common-law pleadings which requires
the pleader to state specifically what acts caused the injury
complained of. The defendant, in support of this position,
cites Bliss on Code Pl. Sec. 211a, where the author said:
'Negligence
is one of the facts to be pleaded. It is not a conclusion
of law, but a conclusion of fact; an issuable, a
substantive fact, to be inferred from evidential facts. The
pleader may not say that he was injured, as, that his arm
was broken by the negligence of defendant; but he must
state specifically what
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