Lee v. Emery

By the Court — Berry, J. — Our statute (Pub. Stat., 540, Sec. 69,) after providing that the defendant may object to the complaint for certain enumerated reasons, goes on to say that “if no objection bo taken either by demurrer or answer the defendant must be deemed to have waived the same, excepting * * * the objection that the complaint does not state facts sufficient to constitute a cause of action." This exception would .seem to have been made in Harmony with the common law rule touching motions in arrest of judgment; (Raynor vs. Clark, 7 Barb. S. C., 583;) for one of the grounds for arrest of judgment laid down by Blackstone is, “if the case laid in the declaration is not sufficient in point of law to found an action upon.” 3 Bl. Com., 393. The same author says that, “many inaccuracies and omissions which would be fatal if early observed are cured by a subsequent verdict, and not suffered in the last stage of a cause to unravel the whole proceedings. But if the thing omitted bo essential to the action or defence, as if the plaintiff does not merely state his title in a defective manner, but sets forth a title that is totally defective in itself, c%c., * * * this cannot be cured by a verdict,” &c. Id., 394, 395. “If the declaration omits to allege any substantial fact which is essential to a right of action, and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect.” Gould's Pleading, 503; see also the opinion of Justice Bronson in Mann vs. Eckford, Ex'rs, 15 Wend., 509, and the opinion of Senator Tracy in Addington vs. Allen, 11 Wend., 416. In the oase last cited on page 387, it appears that by 2 R. S., 424, (under which the New York cases cited were decided,) it is provided “that the judgment upon a verdict, shall not be stayed nor shall the same be reversed for the omission of any allegation or averment of any matter, without proving which the jury ought not to have given [191] such a verdict,” and notwithstanding the liberality of this provision, the Chancellor says: “This embraces the same class of defects which are cured by a verdict at common latv, the principle of which was equally broad in this respect.” * * * “ But it is the duty of the jury to give a verdict for the plaintiff if he proves anything alleged or which may be implied from the declaration, and therefore if the plaintiff totally omits to state a good title or cause of action even by implication, matters which are neither stated nor implied need not be proved at the trial, and there is no room for intendme'nt or presumption, as the intendment must arise from the verdict when considered in comiection with the issue upon which that verdict was given.” See also Story on Pleading, 72, “G,” Van Sand. Pl., Ch. 9, See. 3. These authorities furnish the principles upon which this case should be decided. The complaint is in many respects quite inartificial. The precedent found in 2 Ch. Pl., 710, will'suggest many improvements. We do not deem it necessary to consider in detail all the grounds urged by the. appellant. It is very possible that several of them would bo good upon demurrer, but as Blackstone says, 3 Com., 394, “it is not true that everything that may be alleged as cause of demurrer will be good in arrest of judgment.” To our mind the most formidable objection to the complaint is in the language of the appellants’ point, that the complaint “shows that after leaving the street upon which said Emery was driving his vehicle, and whilst passing over said safe and feasible route, his carriage (that is the plaintiff’s,) was overset, which is the statement of an injury received by the accidental overturning of plaintiff’s carriage, without any averment that defendont by himself or servant caused the same.” The allegations of the complaint on this point are that “the said defendant, George Emery, driving the carriage of said defendant, A. S. Emery, as aforesaid, did carelessly and negligently drive across the street. directly in front of the carriage of this plaintiff, at the same time snapping and shaking his reins, &c., &e., whereby it caused a collision, and to avoid the necessity of running into W. Stringham & Co.’s place of business, it became absolutely [192] necessary for the plaintiff’s said servant to turn suddenly to the right and drive down Centre street, &c., &c., and that while thus turning and driving as aforesaid with all the care and skill possible under the circumstances, the plaintiff’s-carriage was upset,” &c., with a statement of injuries resulting from the upset. Now, all the damages for which the plaintiff seeks compensation, he claims to have resulted from the upset, and so it is of course necessary for him to allege and show that the defendant, George Emery, was the cause of the upset. This is the very gist of the action, and without an allegation to this effect, the complaint does not state facts sufficient to constitute a cause of action. There is no statement to this effect in the complaint, nor anything from which it is inferable or to be implied. The statement in the ad damnum “that in consequence of said negligent and careless act of the defendant, George Emery, the plaintiff sustained great damage,” giving the plaintiff’s estimate of damages in money, being a mere conclusion of law unsupported by a previous averment of facts, cannot mend the matter. See Griggs et al., vs. City of St. Paul, 9 Minn., 248, and numerous cases cited. The judgment of the District Court is reversed, together with the order denying the motion for an arrest of judgment, and the action remanded for further proceedings.