Whitten v. Nevada Power, Light & Water Co.

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 — 784 — facts from which the law raises the duty. This general principle is too well settled to require'extended discussion. 14 Ency. PI. & Pr. 332, and authorities there cited. In Breese v. Trenton R. Co. (N. J. Sup.) 19 Atl. 204, the court, in 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 pf 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 Atl. 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 Atl. 976; Railroad Co. v. Kistler (Ohio) 64 N. E. 130; Taite v. Boorum (Sup.) 74 N. Y. Supp. 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. § 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 acts caused the injury, adding the negligence as creating the liability; the latter to be stated in a general way.” The learned author is here speaking of the general rule. But in the course of a general review upon the subject as to the manner of stating facts the author, at section 310a, declares that there may be circumstances why the pleader should not be required to give the specific acts or — 785 — omissions which constitute negligence. “The sufferer may only know the general — the immediate- — cause of the injury, and, if it be an occurrence that usually results from negligence, the opposite party must explain it and show due care.” And several illustrations are there given in support of this principle; among others, that “when a railroad locomotive sets fire to fields or buildings along the track the sufferer cannot tell in what the negligence consists — whether there is a defect in the furnace or carelessness in its management. Negligence is presumed, and it must, of necessity, be alleged generally.” It will thus be seen that in applying the different rules we must keep a close and watchful eye upon the case in hand, and by parity of reasoning ascertain which rule should be applied. This task is not always an easy one. It often becomes difficult to draw, with any degree of clearness, the dividing line which separates one case from another. The real question is whether the particular language used in the averment can be sustained by the application of any settled rule of law with reference to the sufficiency of the pleadings in actions of this kind and character. In the consideration of this question the court must constantly keep in mind the necessity of requiring pleadings to set forth facts in such an intelligent manner as to inform the opposite party of the grounds upon which the pleader relies to sustain his cause of action or defense. In-Pomeroy’s Rem. & Rem. Rights (2d Ed.) § 554, the author said: “The very object and design of all pleading by the plaintiff, and of all pleading of new matter by the defendant, is that the adverse party may be informed of the real cause of action or defense relied upon by the pleader, and may thus have an opportunity of meeting and defeating it, if possible, at the trial. Unless the petition or complaint on the one hand, and the answer on the other, fully and fairly accomplishes this purpose, the pleading would be a useless ceremony, productive only of delay, and the parties might better be permitted to state their demands orally before the court at the time of the trial.” The gist of the complaint is embodied in the latter portion of clause 5, wherein, after stating how Whitten was engaged, and doing what he had the right to do, it alleged that “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.” If this does not constitute an act of negligence and breach of duty upon the part of the defendant, then the complaint fails to properly state a cause of action, and the demurrer should be sustained. There are many cases which hold that the inference or presumption arising from an injur)’ is one of fact; that it pertains to evidence, rather than the pleading: that under certain circumstances and conditions the most the inj.ured party could do would be to prove the injury and the immediate cause thereof; that this would in such cases cast upon the defendant the obligation to explain or show due care and diligence, and that while negligence, under general rules, must be alleged and proven, it may, in exceptional cases, be inferred from the testimony as to how the injury was caused, without the plaintiff having in his complaint put his finger directly on the particular defect, carelessness, or negligence which caused the injury. — 786 — In Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 663, 21 Sup. Ct. 277, 45 L. Ed. 361, the court said: “That while in the case of a passenger the fact of an accident carries with it a presumption of negligence on the part of the carrier — a presumption which, in the absence of some explanation or proof to the contrary, is sufficient to sustain a verdict against him, for there is prima facie a breach of his contract to carry safely, * * * a different rule obtains as to an employé. The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employé to establish that the employer has been guilty of negligence.” This distinction between the character of the cases must not be overlooked. The rules applicable to one are not always applicable to the other. This is not a case between master and servant. The other class of cases will be referred to. In 21 Am. & Eng. Ency. R. (2d Ed.) 512, it is said: “Negligence is never presumed from the mere fact of injury, yet the manner of the occurrence of the injuries complained of or the circumstances surrounding may well warrant an inference or presumption of negligence.” In 1 Shear. & Red. on Neg. (4th Ed.) § 59, the author said: “It is not that in any case negligence can be assumed from the mere fact of an accident and an injury, but in these cases the surrounding circumstances which are necessarily brought into view by showing how the accident occurred contain, without further proof, sufficient evidence of the defendant’s duty, and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or that it is necessary to offer. The accident, the injury, and the circumstances under which they occurred, are in some cases sufficient to raise a presumption of negligence, and thus cast upon the defendant the burden of establishing his freedom from fault” In section 60 the author said: “Proof of an injury occurring to defendant as the proximate result of an act which, under ordinary circumstances, would not, if done with due care, have injured any one, is enough to make out a presumption of negligence. When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.” Several authorities are cited which sustain these rules. See, also, Gleeson v. Railroad Co., 140 U. S. 435, 443, 11 Sup. Ct. 859, 35 L. Ed. 458; The Joseph B. Thomas, 86 Fed. 658, 662, 30 C. C. A. 333,46 L. R. A. 58; Snyder v. Wheeling Electrical Co., 43 W. Va. 661, 667, 28 S. E. 733, 39 L. R. A. 499, 64 Am. St. Rep. 922; Boyd v. Electric Co. (Or.) 66 Pac. 576, 57 L. R. A. 619; Shafer v. Racock, 168 Pa. 497, 504; 32 Atl. 44, 29 L. R. A. 254; Barnowsky v. Helson, 89 Mich. 523, 525, 50 N. W. 989, 15 L. R. A. 33. In notes to 2 Thomp. on Neg. p. 1246, it is said: “Negligence on the part of the defendant is the gist of the action, and must be charged in the plaintiff’s petition. It is not, however, absolutely necessary that it should be averred in terms, if such facts are stated as will raise a presumption of negligence.” In Cunningham v. Los Angeles Ry. Co., 115 Cal. 561, 566, 47 Pac. ,453, the court said: — 787 — “The demurrer to the complaint was properly overruled. While the negligence was averred in general terms, such mode of presenting the facts is sufficient in this character of action, where, as a general thing, the more specific facts are more largely within the knowledge of the defendant than that of the plaintiff; and the complaint cannot, therefore, be held open to the objection of uncertainty.” See, also, Railroad Co. v. Jones, 83 Ala. 376, 382, 3 South. 902. In Railroad Co. v. Hicks (Ind. App.) 37 N. E. 43, it was held that in an action of negligence, where a legal duty is shown, and its breach, a general allegation that the acts done or omitted were so done or omitted negligently is sufficient to sustain the charge. In Railway & Illuminating Co. v. Foulds, 81 Ill. App. 322, the court said: “When appellant wired the basement or cellar of appellee’s house, and agreed to furnish Mm light for hire, it well knew it was dealing in an element, delivered in a current of high voltage, such as was carried on its primary wires, which was almost certain to bring death to the person who turned on the lamp if there was a ground of the current on the circuit. Hence the law imposes upon it the duty to exercise a high degree of care and skill in the delivery of the element it had contracted for. If the injury itself furnishes a presumption of negligence so as to require the defendant to show, by evidence, that it has been guilty of no negligence that caused it, then it logically follows that all that is necessary to be averred in the declaration to entitle the plaintiff to recover for the injury is the agreement, a negligent breach of it, and the result; also that the plaintiff has not by any neglect on his part contributed to the result.” In Denver Consol. Electric Co. v. Lawrence, 31 Colo. 301, 309, 73 Pac. 39, 42, where the facts are substantially identical with the case at bar, the court said: “The plaintiff, while attempting to do that which every patron of the company must do to make use of the electric light, received into his body a current of electricity, burning his hands and feet, and permanently injuring him. Such injuries are not, under ordinary circumstances, received by persons who turn on an incandescent lamp, if the company supplying the current has hot been negligent. The defendant, when it contracted with the father of the plaintiff to sell electricity for light, contracted to keep its plant and appliances in such condition that no greater volume of electricity would be carried into the house than was necessary for its proper lighting. The quantity of electricity required for lighting purposes in residences is not sufficient, if it pass through the body, to cause the injuries described by the plaintiff in his complaint. It follows, therefore, that the plaintiff must have received a very much greater quantity of electricity than the company contracted to supply. The court therefore did not err in overruling the demurrer to the complaint, nor in overruling the objections to the introduction of testimony.” The complaint in the present case is almost verbatim with the complaint in the Colorado case last cited, the only difference being in relation to the party who was injured, and the effect of the injury. It ought, however, to be said that the laws of Colorado do not provide, like the statutes of this state, that the objections here raised could be taken advantage of by a demurrer, but that such objections must be made by motion to make the complaint more specific. It may, therefore, be presumed that, if a motion had been made to strike out the general clause as to all the duties of the defendant as alleged in the complaint, it would have been granted. — 788 — The difficulty in the present case arises in determining what disposition should be made of the' demurrer. The most objectionable part of the complaint, viz., the “lumping clause,” setting out all the duties of the defendant without specifying any breach of duty, may be considered as mere surplusage, which would not call upon defendant to specifically answer. The objection might, therefore, be deemed purely technical. If plaintiff believes this lumping clause to be material, then she should amend it by inserting the particular breach under each duty specified. This was done in Peers v. Nevada Power, Light & Water Co. (C. C.) 119 Fed. 400, and such is certainly the better practice. The complaint ought to be so specific as not to open the door so wide as to admit anything on every point of the case, without a breach of duty is expressed in regard to it. It ought at least to be so specific as to point out some one particular breach of duty, one act of negligence, and it may add as many others as the pleader thinks can be proven. The objectionable feature of the complaint is that it should have stated the plaintiff’s cause of action by distinct averments, and not left it to the court to deduce the existence of one fact from the statement of another. It follows from the views herein expressed that the pleader should draft his complaint with reference to what he expects to prove in support of the allegations he makes. Touching these matters, he must state the ultimate facts upon which he relies in as clear, concise, direct, and specific a manner as the circumstances of his case will permit. If he cannot be specific, the negligence may be stated generally, if in sufficient terms to impart knowledge to the defendant of what it will be called upon to answer. There would naturally be a difference in the allegations of a complaint charging negligence against an electric company where the injury was caused by the wires falling to the ground and a case o'f negligence in conveying an electric current over its wires into a building, but in both the fact of breach of duty must be alleged. A careful examination of the declarations referred to by the court in Snyder v. Wheeling Electrical Co., 43 W. Va. 661, 664, 28 S. E. 733, 39 L. R. A. 499, 64 Am. St. Rep. 922, and Anderson v. Electric Light Co. (N. J. Sup.) 43 Atl. 654, will furnish some guide as to the form of declaration in such cases. In the light of the authorities discussed at the argument and the views herein expressed, the complaint can readily be amended so as to remove the objectionable features thereof. For the reasons last stated — in the interest and protection of good and safe pleadings — I shall sustain the demurrer, and give plaintiff 10 days to amend the complaint.