28 Minn. 69 | Minn. | 1881
This is an appeal from an order sustaining a demurrer to the complaint. The ground of demurrer was that the complaint did not .state facts sufficient to constitute a cause of action. The here material allegations of the complaint are as follows: “That, heretofore, to wit, on or about the sixth day of September, A. D. 1880, the servant of this plaintiff was lawfully travelling in a wagon drawn by two horses, all the property of this plaintiff, along the public highway in the town of Carlston, in said county of Freeborn,.
It is urged that it is not sufficient to allege that an act was done negligently or carelessly; that this is merely a conclusion of law, and not a statement of an issuable fact; that the physical facts constituting the negligence must be alleged. It is, of course, an elementary rule of pleading that facts, and not mere conclusions of law, are to be pleaded. But this rule does not limit the pleader to the statement of pure matters of fact, unmixed with any matter of law. When a pleader alleges title to or ownership of property, or the execution of a deed in the usual form, these are not statements of pure fact. They are all conclusions from certain probative or evidential facts not stated. They are in part conclusions of law, and in part statements of facts, or rather the ultimate facts drawn from these probative or evidential facts not stated; yet these forms are universally held to be good pleading. Some latitude must therefore be given to the term “facts,” when used in a rule of pleading. It must of necessity include many allegations which are mixed conclusions of law and statements of fact; otherwise pleadings would become intolerably prolix, and mere statements of the evidence. Hence, it has become a rule of pleading that, while it is not allow-) able to allege a mere conclusion of law containing no element of fact, yet it is proper, not only to plead the ultimate fact inferable frbm certain other facts, but also to plead anything which, according to the common and ordinary use of language, amounts to a mixed statement of fact and of a legal conclusion. It may not be possible to formulate a definition that will always describe what is a mere conclusion of law, so as to distinguish it from a pleadable, ultimate
Therefore, it has been generally settled by precedent and authority that a general allegation of negligence or carelessness, as applied to the act of a party, is not a mere conclusion of law, but is a statement of an ultimate fact allowed to be pleaded. Such a general form of alleging negligence seems to have been permissible in common-law pleading. Some of the forms of declarations given by Chitty, when stripped of mere superfluous verbiage, amount to nothing more than this. See 2 Chitty on Pleading, 650; also Bliss on Code Pleading, § 211; Grinde v. M. & St. P. R. Co., 42 Iowa, 376; Oldfield v. N. Y. & H. R. Co., 14 N. Y. 310. Therefore, while the court on motion would, on proper showing, doubtless have the right to require this complaint to be made more definite, yet we think it was not demurrable on the grounds stated.
Another objection made to this complaint is that, from the facts stated, it appears that plaintiff himself was guilty of contributory negligence. It is the settled law of this state that contributory negligence of the plaintiff is matter of defence, and that plaintiff, in making out his case, need not prove the absence of it. Wilson v. Northern Pacific R. Co., 26 Minn. 278. Hence it is not necessary for the plaintiff, in his complaint, to negative the existence of contributory negligence on his part. It is, however, doubtless true that if his complaint stated facts which showed affirmatively that he was guilty of negli
Order reversed.