Williams v. Oregon Short-Line R. Co.

• Decision Date: 12 November 1898
• Citation: 18 Utah 210,54 P. 991
• Court: Utah Supreme Court
• Parties: JONATHAN A. WILLIAMS, RESPONDENT v. THE OREGON SHORT LINE RAILROAD COMPANY, A CORPORATION, APPELLANT

54 P. 991

18 Utah 210

JONATHAN A. WILLIAMS, RESPONDENT v. THE OREGON SHORT LINE RAILROAD COMPANY, A CORPORATION, APPELLANT

Supreme Court of Utah

November 12, 1898

Appeal from the district court of Weber County, Hon. H. H. H Rolapp, Judge.

Action by plaintiff against defendant to recover damages for personal injuries received by plaintiff while riding as a passenger upon defendant's cars. From a judgment for plaintiff defendant appeals.

Affirmed.

Messrs Williams, VanCott & Sutherland for appellant.

The court erred in overruling defendant's demurrer to the complaint. The demurrer was special and was aimed at the uncertainty of the complaint in the description of the injuries alleged to have been received by the plaintiff.

The invariable rule of pleading is that it must be so definite and certain as to apprise the defendant of the matter he is called upon to meet. Stephenson v. Southern Pacific, 34 P. 618; Colton v. Underdonk, 69 Cal. 157; Reynolds v. Hosmer, 45 Cal. 616; Ward v Clay, 82 Cal. 502; Daggett v. Gray, 110 Cal. 169.

The rule is uniform that a special demurrer for such a defect as here exists should be allowed in all those states in which ambiguity, intelligibility or uncertainty are by the statute made a ground of demurrer. Bliss on Code Pleadings, Sec. 425; Wood v. Oregon Ry. & Nav. Co., (S. C. Ore.) 22 P. 1076; McPherson v. Pacific Bridge Co., (S. C. Ore.) 26 P. 560; C. B. &. Q. R. R. Co. v. Horwood, 90 Ills., 425; Pullman Palace Car Co. v. Martin, (Ga. S. C.) 18 S. E., 364; Conley v. Richmond & D. R. Co., 14 S.E. 303.

The court erred in denying the defendant's challenge to the panel of the jury. Rev. Stat. Sects. 2479, 1306, 1307, 1309 and 1302.

There is a doctrine with reference to the construction of statutes in determining whether they are directory or mandatory, which is well expressed in Sutherland on Statutory Construction, Sec. 448, as follows:

"Provisions regulating the duty of public officers and specifying the time for their performance are in that regard generally directory. Though a statute directs a thing to be done at a particular time it does not necessarily follow that it may not be done afterwards. In other words, as the cases universally hold, a statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory, unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of the time must be considered as a limitation of the power of the officer."

While conceding the general rule that affirmative statutes with reference to the duties of public officers are ordinarily construed to be directory as to matters with reference to time of performance or the time to which an act is made to apply, yet if the legislature has indicated by the language chosen to express its will as in this case, to what time or for what period the acts of officers are made to apply, the courts have no power to make it applicable to another time or period. People v. Porter, 6 Cal., 627; McKune v. Weller, 11 Cal. 49; Kenfield v. Irwin, 52 Cal. 164; Weill v. Kenfield, 54 Cal. 111; In re Petition of George Douglas, 46 N.Y. 42; Matter of the Petition of Anderson, 60 N.Y. 457; Webster v. Frence, 12 Ills., 301; Clark v. Ewing, 87 Ills., 344.

The court erred in refusing to admit in evidence the conditions on the back of the pass, and in giving the jury the sixth instruction.

These two errors may be properly treated together, for if the plaintiff was an employee and not a passenger at the time he received the injury complained of, the sixth instruction is clearly erroneous, because it is not a correct statement of the law except when the relationship is that of passenger and carrier, and the same result follows if the court erred in excluding from the jury the conditions printed upon the back of the pass.

The plaintiff here from the situation shown in the evidence would not have taken his journey except to commence the work which he had undertaken to perform for the defendant. He was given a pass in consequence of the contract of employment. His relationship was wholly different from that of a passenger taking passage upon a conveyance of a carrier of passengers, to proceed, at his own will, upon business or pleasure. Manville v. Cleveland & Toledo R. R. Co., 11 Ohio St. 417; Gilman v. Eastern R. R. Corporation, 92 Mass. 233; Gilshannon v. Stonybrook R. R. Co., 64 Mass. (Cushing), 228.

C. C. Richards, Esq., and Messrs. J. H. & H. R. McMillan for respondents.

That the demurrer was properly overruled see: Chicago v. Sheenan. 113 Ills., 658; Chicago City R. Co. v. Hastings, 136 Ills., 251; Chicago v. Selborn, (Ills.) 17 N. E., 462; Chicago v. McLean, 133 Ills., 148; Lake Shore R. Co. v. Ward, 135 Ill. 511.

That the court did not err in denying defendant's challenge to the jury see: Sec. 3140, Rev. Stats., 1898; 12 Enc. of Pl. & Pr., 422 and citations; People v. Southwell, 46 Cal. 146; People v. Welch, 49 Id., 177; People v. Wallace, 101 Id., 282; State v. Reynolds, 11 Nev. 106.

We maintain that the law in regard to the time of appointing (jury) commissioners is directory. Colt v. Eves, 12 Conn. 242; State v. Pitt, 58 Mo. 557; Burlingame v. Burlingame, 18 Wis. 300; Thomas v. People, 39 Mich. 311; State v. Smith. 67 Me. 332; 12 Enc. Pl. & Pr., 301 and citations.

That the court did not err in refusing to admit in evidence the conditions upon the back of the pass and in giving the jury the sixth instruction involves a consideration of two questions: (a) whether plaintiff was a passenger on defendant's train, and (b), whether he was bound by the conditions on the back of the ticket exempting the defendant from all liability for negligence of its servants.

An examination of the Massachusetts decisions shows that the earlier decisions cited by appellant have been overruled and that in a case analogous to the case at bar it has been held that one who rides on a pass to and from his work is a passenger and not an employee and not bound by conditions exempting the carrier from liability. Grand Trunk R. Co. v. Stevens, 95 U.S. 655, 24 Ibed, 535; Rose v. DesMoines V. R. Co., 39 Ia. 246; Annas v. Milwaukee & N. R. Co., 58 Am. Rep., 848; 57 Am. Rep., 388, note; Pennsylvania R. Co. v. St. Paul & C. R. Co., 18 Am. Rep., 360; Willis v. Grand Trunk R. Co., 62 Me. 489 Kansas City, St. J. & C. B. R. Co. v. Simpson, 46 Am. Rep., 104; Taylor v. Little Rock M. R. & T. R. Co., 39 Ark. 148; 3 Wood Railway Laws, Sec. 425, p. 1576; Maynard v. Syracuse B. & N.Y. R. Co., 71 N.Y. 180; Nicholas v. N.Y. C. & H. R. R. Co., 89 N.Y. 370.

The Supreme Court of Utah in Saunders v. The Southern Pacific Co., 13 Utah 284, passes on the conditions on a ticket similar to the one in controversy.

MINER, J. ZANE, C. J. and BARTCH, J., concur.

OPINION

MINER, J.

This action was brought to recover damages for personal injuries received by plaintiff while riding as a passenger upon defendant's cars near Malad Bridge, Idaho, on the 3d day of April, 1897.

The complaint charged, in substance, that while plaintiff was riding in defendant's cars, as a passenger, the defendant carelessly and negligently operated and ran its train at a great and dangerous rate of speed over and upon a defective and inadequate railway track, roadbed and switch maintained by it, and by reason of such negligence and carelessness the train was wrecked, and the plaintiff was thereby greatly and permanently injured, crushed, bruised, and wounded in his back and loins, and in various other parts of his body, both externally and internally, and some of his ribs were broken, and because of said injuries plaintiff became sick, sore, lame and disordered, and so continued to this day, and he has suffered, and now suffers thereby great mental and physical pain and distress, and by reason of said injuries he has been rendered unable to follow his usual avocation, and was compelled to lay out and expend $ 50.00 for medical treatment, etc.

To this complaint the defendant interposed a special demurrer to the effect that it was unintelligible, ambiguous, and uncertain, and that it did not appear what the nature, extent, or kind of injuries, either external or internal, were inflicted, except that some of his ribs were broken, and that the nature and extent of the injury was not set forth. The demurrer was overruled, and the defendant filed its answer denying the allegations of the complaint, and alleged that at the time of the injury plaintiff was not a passenger, but was traveling on a free pass or ticket delivered to plaintiff without consideration.

1st. Appellant contends that the court erred in overruling the demurrer. We do not agree with the appellant in this contention.

In the case of Croco v. The Oregon Short Line R'y Co., decided at the present term of this court, 54 Pac Rep. 985, 17 Utah, , this court in passing upon the same question said that the plaintiff was not required to aver all the physical injuries which he sustained, or which may have resulted from or been aggravated by the wrongful act complained of. If such injuries can be traced to the act complained of, or are such as to naturally follow from the injury, they need not be specifically averred. When the defendant was informed by the complaint that the plaintiff was permanently injured, crushed, bruised and wounded in his back and loins, and in various other parts of his body, both externally and internally, some of his ribs broken, and because of such injuries plaintiff became sick, sore, lame and disordered, and so continued to be, and suffered by reason thereof, great mental and physical pain and distress, he was bound to expect evidence of any sickness or any injury to plaintiff...