Bishop v. Chicago & Northwestern Railway Co.

Taylob, J. This is an appeal from an order of the circuit court striking out the demurrer of the defendant to the plaintiff’s complaint as frivolous. Upon this appeal the question is not whether the demurrer was or was not frivolous, but whether the demurrer is well taken. The ground of demurrer relied on by the counsel for the defendant is that several causes of action are improperly joined in the complaint, and it is insisted that some of the causes of action set out in the complaint are actions in tort, and others are on contract. It is admitted by both parties that actions in tort and on contract cannot be properly joined in the same action, under the Code, unless such causes of action arise out of the same transaction. See sec. 2674, R. S. 1878. [615] After a careful reading of the complaint, we are constrained to hold that the third cause of action stated in the complaint is clearly an action upon contract. The fifth and sixth causes of action stated in the complaint are clearly actions in tort, and do not arise, so far as can be ascertained from the complaint, out of the transaction stated in the third cause of action. "Whether the other causes of action set out in the complaint be all in tort or all on contract, or some of them in tort and others on contract, we do not determine, as the plaintiff will be compelled to amend her complaint at all events. She can easily make it so certain that there need be no further difficulty in determining what causes of action the complaint contains. The demurrer to the complaint on the ground that several causes of action are improperly joined, we think is well taken and should have been sustained. We are inclined to think, from a reading of the complaint, that several more causes ef action are stated in the complaint than there were transactions out of which it is claimed they arose. Although this is not a ground of demurrer, it is a method of pleading not sanctioned by the Code, which requires that the complaint shall contain “ a plain and concise statement of the facts constituting each cause of- action, without unnecessary repetition.” In the case of Muzzy v. Ledlie, 23 Wis. 445, this court condemned that kind of pleading as wholly unnecessary and unauthorized, and we deem it proper in this case to call the attention of the bar to what was said in that case in condemnation of such repetitious pleading. The present chief justice, in his opinion in that case, says: “ The only reason ever assigned for the practice of setting forth the same cause of action in different ways in several counts was to avoid the consequences of variance between the allegations and proof. But this reason has lost most of its force under the liberal power of amendment conferred upon [616] courts by the Code. . . . And therefore since it is no' longer necessary, in order to protect the rights of the plaintiff, that he should set forth in different counts the same cause of action,— variances between the allegations and proofs being disregarded unless they actually mislead the adverse party to his prejudice upon the merits,-— the practice of so doing is disapproved of because it is not in harmony with the spirit of the Code.” An exception to this method of pleading is recognized by this court in a case when the plaintiff cannot know beforehand the precise nature and limits of. the defendant’s, liability to him, and in such case it is permissible to allow the plaintiff to state his cause of action. differently in different counts. See Whitney v. C. & N. W. R. Co. 27 Wis. 327. By the Oourt.— The order of the circuit court is reversed,, and the cause is remanded for further proceedings.