17 Colo. App. 275 | Colo. Ct. App. | 1902
This suit grew out of a fire at Colorado Springs on October 1, 1898, which destroyed a large amount of property. Among other victims was The Crissey & Fowler Lumber Company, who, it is alleged, lost a large amount of lumber and building materials then being in a lumber yard maintained by them, lying not far distant from the tracks of the defendant railroad company. It is claimed that the fire originated in the freight yards of the defendant railroad company at or about its freight depot, through the negligence of said defendant, and the plaintiff seeks to make it liable for the loss incurred. The property of the lumber company was partially insured. The several amounts of this insurance having been paid, the insurers so paying claim to be subrogated to the extent of such payments to the rights and claims of the lumber company against the defendant railroad company, if any, and hence are made coplaintiffs with the lumber company, the owner of the property destroyed.
The complaint sets out the cause or causes of action in four counts. The first count proceeds ex
In the second count, or for a second cause of action, the plaintiffs, after repeating the preliminary allegations as to the incorporation of the respective parties, and the description of the property destroyed, alleged as the cause of the loss that the defendant railroad company, its agents, servants and employees, negligently caused and set out a fire in and upon said defendant’s right of way, and in and about its platforms and freight depot, and that said fire was by said defendant railroad company, its agents, servants and employees, omitting and failing to exercise due care and caution in the premises,, negligently permitted and caused to escape from said right of way, platforms and freight depot, and to communicate with and ignite and destroy the property of the plaintiff lumber company; that the destruction of said property was the probable, direct and natural result of the negligence of said defendant, its agents, servants and employees, in negligently causing and setting out the fire, and in negligently causing and permitting it to escape.
The third count charges a liability upon the defendant railroad company for the results of the fire
The fourth count or cause of action repeats the allegations in the third count as to the incorporation and character of the parties, description of the property destroyed, and also description of the alleged negligent and dangerous conditions existing in the yard at the time of the fire, and adds thereto a copy of an ordinance of the city of Colorado Springs under which it was claimed that the keeping of the car of powder in the yards at the time was in violation of law; and adds, also, an allegation to the effect that by reason of defendant railroad company’s negligence in exposing said car of powder and explosive in its improper and dangerous condition and in con sequence of the rapid spread of the fire in the direction of the car, consequent upon the burning of the large quantity of combustible and inflammable materials negligently permitted by said defendant to have accumulated and remained upon its right of way, the firemen of the city fire department of Colorado Springs having come upon the premises for the purpose of extinguishing the fire, were deterred and prevented by reason of the danger to their lives and limbs occasioned by the presence of said powder car in its dangerous exposure to the fire, in their endeavors to extinguish the fire, and were compelled, in order to secure their personal safety, to cease their efforts and withdraw from the premises.
The defendant railroad company interposed a demurrer to the entire complaint upon the ground
At the trial, before any evidence was introduced, defendant railroad company moved the court to compel plaintiffs to elect upon which count of the complaint they would proceed. This motion was sustained, and the plaintiffs reserving their exception, elected to stand upon the third count, which, however, by leave of the court, they were permitted to amend by interlineation, so as to allege more specifically that the fire was negligently set out by the defendant railroad company, and also that it was set out and caused in the operation of said company’s road. The other counts were stricken out. Upon the conclusion of the testimony offered in behalf of the plaintiffs, defendant railroad company moved that the jury be instructed to return a verdict in its favor. This motion was sustained on the ground, as stated by the court, that the origin of the fire had not been satisfactorily proven.
1. In pleading at common law, a second count might embody a new cause of action, or be a statement in different form, of a single cause already declared on. Under the code practice different causes of action must still be separately stated, but it is generally required that the different statements or counts should contain causes of action different in
In Follett et al. v. Railway Co. et al., 36 N. Y. Supp. 200, it was said in reference to a motion of this character: “The motion was properly denied. Under our present system, parties are allowed to plead the real facts. What benefit would result from that liberality, if, upon the trial, the party may not prove the facts as pleaded? A party has an absolute
In Brockett v. Railway Co., 47 Atl. 764, the Connecticut supreme court of errors said the plaintiff was “entitled to allege what was substantially the same fact in different forms, to meet the possible conditions of testimony. Such double allegations are improper only when plainly unnecessary, or one or the other is false, to the knowledge of the pleader.” In that case it was said that the counsel for plaintiff was strangely mistaken in supposing that he could make two causes of action out of the injury to his client, and that the separation of his material allegations by the words “second count” was unwarranted and ineffective, but the trial court emphasized the fault by its error in ordering the plaintiff to elect on which count she would proceed. The practical effect of this, the court said, was to compel the plaintiff to omit an averment she was entitled to make.
In a very recent Missouri case, Rinard v. Railway Co., 64 Southwestern 127, it was said, a plaintiff “may plead a single cause of action in as many different counts as he chooses, to meet any possible state of the proofs, and this will not make his counts repugnant. * * * If any one of the counts in a petition so framed is good, it will support a general verdict. This being true, a plaintiff cannot be compelled to elect upon which count he will stand. In
The Colorado code provisions which are applicable to the question before us are contained in code sections 49 and 70. The latter provides that a plaintiff may unite several causes of action in the same complaint, when they arise out of any one of certain specified classes, one being all actions sounding only in damages for injuries to property, but that in all such cases it should be necessary to state separately, the different causes for which the action is brought.
Section 49 provides, among other things, that the complaint shall contain “a statement of the facts constituting the cause of action in ordinary and concise language, without unnecessary repetition. ’ ’
In Manders v. Craft, supra, this court, in discussing and construing this last cited section, held that the words “without unnecessary repetition” must of themselves in many instances modify the rule as usually laid down in general terms, and said as a reason therefor that, “the obvious intention of the system of code pleading is that it shall be more equitable than that of the common law. To so construe it as to render it more restrictive would defeat the intention. In Bliss it will be observed that the rule is considerably modified. The language is: ‘But it is generally required,’ showing that it is not regarded as arbitrary and mandatory, but that there are many exceptions, and this is supported by the context of section 119 and subsequent sections. * * * The statute prohibits unnecessary repetition, but does not prohibit repetition entirely.” The court said there were many cases where a party should be required to elect, but added: , “There are also many cases where the arbitrary application of the rule would prevent justice. ”
In Cramer v. Oppenstein, 16 Colo., 511, the su
In Leonard v. Roberts, 20 Colo. 90, the court said: “The code does not absolutely prohibit such pleadings, but provides simply that the facts ‘ shall be stated in concise language without unnecessary repetition.’ It is sometimes impossible for the plaintiff to be certain in advance of the real ground of liability, and while double pleadings should be restricted within the narrowest limits possible without unnecessarily endangering plaintiff’s rights, or subjecting him to the danger of a nonsuit, in this case the trial court properly refused the defendant’s motion to compel plaintiff to elect upon which count he would proceed.” In that case the court expressly stated, it was admitted that the cause of action was the same in both counts, the double statement being used for the purpose of meeting the exigencies of the proofs. It must be borne in mind that whatever may be the force and extent of the prohibition of a double statement of a single cause of action as contained in section 49, the unnecessary repetition which is prohibited is of the facts only, constituting the cause of action.
In Manders v. Craft, supra, one of the authorities cited by the opinion in support of the doctrine announced by the court was Birdseye v. Smith, 32 Barb. 217. In that, it was said: ‘ ‘ Several statements of the same cause of action, substantially the same, and differing only in form, are not necessary, but
Bliss, section 120, says: ‘ ‘ Affirmative provision is made for the union of different causes of action, and it is not required that they be such causes that a recovery may be had upon each; nor would the joinder be such a repetition of facts as is forbidden. The facts in the two statements would not be the same; there may be actually two grounds for the action, or, being only one, certain supposed grounds may be so connected that the plaintiff may not be able to tell in advance which will be established upon the trial. The code will have failed in its chief object if he is forbidden to develop every ground upon which he bases his right of recovery. ’ ’
2. Applying these principles, thus authoritatively announced by both the appellate courts of Colorado, and also by the highest courts of other jurisdictions in well-considered opinions, and which commend themselves to us as eminently sound and reasonable, we think it manifest that in this instance the sustaining of the motion to compel plaintiffs to elect on which of the four counts they would proceed, was an unsound exercise of judicial discretion, and was prejudicial error. Whatever may be said as to the second, third and fourth counts, whether they together constituted but one caus'e of action, and were merely different statements of it, it is certain that the first count stated a cause of action which was distinct and different from that set forth in any one or all of the other three. This was a statement of the
In Colorado Coal and Iron Co. v. Carpita, 6 Colo. App. 252, the doctrine which we have announced is recognized, and the court says also that where it is proper to join two causes of action, one under the statute and the other at common law, “they should be separately stated, and each should contain enough to show a cause of action on the theory which may be adopted.” We believe it therefore to be indisputable that the complaint in question contained at least two dinstinet causes of action, the one statutory and the other at common law, which might properly be united, and which it was not only the privilege but the duty of the plaintiffs, under the express requirements of the code, to state separately.
3. As there must be a retrial of this cause, it is not improper, and indeed, fairness to the trial court and to counsel would seem to require, that we should consider, briefly at least, the second, third and fourth counts in the complaint, with reference to the interposition of a motion requiring plaintiffs to elect between them. Whether they may be considered as each setting forth a distinct cause of action, or as a statement of only one cause of action, but in different form, we do not think they come within the prohibition of the code or of the rules of practice laid down by our appellate courts. Considered as stating but one cause of action, the statements are not inconsistent or contradictory, are not duplicate statements, are not repetitions of the same facts, whether necessary or unnecessary. Each contains the statement of some material fact or facts not contained in either of the others. The second count is predicated solely
The several counts being of such a character, the compulsory election by plaintiffs of only one upon which to rely would necessarily cause them to lose the benefit of some allegations as to material facts bearing upon the question of the negligence of defendant railroad company, and its subsequent liability. The liberal provisions of the code and policy of the code practice do not require a plaintiff to be placed at such a disadvantage, and especially should not, when it is manifest, as it is here, that By permitting all the counts to stand the defendant could by no means be prejudiced. We think this clearly a case where the plaintiffs’ supposed grounds of action aré so connected, and where there are allegations of so many different facts constituting negligence, that it
4. This error of the court in requiring plaintiffs to elect was emphasized by subsequent rulings, some clearly erroneous, and all, whether erroneous or not, manifestly prejudicial to the plaintiffs, because of the vacillating position of the court. First, the demurrer attacking separately each count in the complaint because it did not state facts sufficient to constitute a cause of action having been overruled, the court sustained the motion requiring plaintiffs to elect upon which one of these four counts, each of which had been so held to be good, they would stand, and denied their request that they be allowed to stand upon the common law and statutory causes of action. Leave was then granted to plaintiffs to amend the third count, upon which they elected to stand, by interlineation, and this they did by alleging more specifically that the fire was set out and caused in the operating of defendant railroad company’s road, so as to have embraced in this third count, as contended by plaintiffs, the statutory right of action, and have sustained a recovery upon that ground, if a recovery was had. Whether this contention of plaintiffs was well founded or not, they were deprived of all benefit from the amendment so allowed by a subsequent ruling of the court during the progress of and early in the trial, to the effect that the plaintiffs would not be permitted to recover by virtue of the statute in any event, but would be restricted in their recovery, if any such might be had, to the common-law remedy, based wholly upon
5. It having been alleged in the complaint as a ground of action that the defendant negligently permitted the fire to escape from its right of way, and thereby plaintiff lumber company’s property
6. Counsel also discuss at some length the question as to the meaning of the words, “set out or caused by operating its line, or any part thereof,” which are in. the fire statute, with reference to a determination of what acts, duties and obligations of a railroad company are embraced in or included by such wor4s. As the pase is presented, it is not nec: essary .for. us to pass upon this question. If the action were based wholly upon the statute, or if at the trial
7. The court excluded the evidence of a witness tendered by plaintiffs to show the results of an examination made by him within a short time — a week or two after the fire — of the switch engine belonging to defendant railroad company, which was claimed to have passed on the track close to the place where the fire originated and was first discovered, and but a few minutes before its discovery, and fire from which was claimed to have caused the fire. In this we think the court erred. The time of the examination was not too remote, although of course the force
Plaintiffs offered testimony of several witnesses tending to show the setting out of fires at other times and places by other locomotives of the defendant railroad company, but it was excluded by the court. In this we think the court did not err. The case relied upon by appellants in support of their contention that the evidence was admissible does not in our opinion sustain it.—Grand Trunk R. R. Co. v. Richardson, 91 U. S. 454.
In that case, no particular locomotive was identified as the one that set out the fire. It might have been one out of many. The evidence, too, upon which the court in that case was commenting and which it held to be admissible, was offered in rebuttal by plaintiff, to contradict evidence introduced by the defendant railroad to show that it exercised care in the construction and operation of its engines generally. In this case the engine was identified. There was only one, if any, which could have caused the fire. In such case, the only pertinent inquiry was as to the construction and management of that particular engine. It might have had other engines which were faulty in construction, or its employees might have negligently handled other engines, but we do not see how in reason these facts would have been
We of course do not mean to hold that such evidence would not he admissible in any case. There might be cases where it would be proper and competent, but under the facts presented in this case, for the reasons we have suggested, this is not one of them.
8. It is urged that even tnough in a suit for recovery of damages by the owner of property destroyed by fire set out or caused in the operation of a railroad, the common-law and statutory causes of action might be joined, yet it cannot be done in this suit, because the insurance companies are joined with the owner as parties plaintiff, and that hence the court did not err in striking out the first count of the complaint. In other words, it is claimed that the insurance companies cannot be subrogated to the owner’s rights in an action where recovery is claimed solely by virtue of the statute. We do not understand counsel to challenge this right of subrogation where the loss was occasioned by the negligence or wrongdoing of another, and the common-law remedy is sought to be enforced. In such case, we believe the right to be very generally, if not universally, recognized. — 2 May on Insurance, § 454; 2 Biddle on Insurance, §1280, et seq.; Harris, Law of Subrogation, § 606; Sheldon, Subrogation, §§ 11, 230.
It has also been held in many adjudicated cases that this right of subrogation exists whether the fire is caused by negligence, or accidentally, within statutes imposing a liability in any event, which directly covers the case at bar.—See 2 Biddle, § 1281, and cases cited; Hart et al. v. R. R. Corporation, 13 Metc. (Mass.) 100.
“Now, when the owner, who prima facie stands' to’ the whole risk and suffers the whole loss, has engaged ■ another person to be at that particular risk for him, in whole or in part, the owner and the insurer are, in respect to that ownership and the risk incident to it, in effect one person, having together the beneficial right to an indemnity provided by law for those who sustain a loss by that particular cause. If, therefore, the owner demands and receives pay-ment of that very loss from the insurer as he may by virtue of his contract, there is a manifest equity in transferring the right to indemnity, which he holds for the common benefit, to the assurer. * * * It follows as a necessary consequence, that if he first applies to the insurer, and receives his whole loss, he holds the claim against the railroad company in trust for the insurers. Where such an equity exists the party holding the legal right is conscientiously bound to make an assignment, in equity to the person entitled to the benefit, and if he fails to do so, the cestui que trust may sue in the name of the trustee and his equitable interest will be protected. ”
We have been referred to no cases holding the contrary. Of course, to enforce liability under the statute it may be well claimed and is required that the owner should be a party to the suit, because it is to him that the statute specifically gives the right of recovery and of indemnity. It is his right only which can be enforced, and it must be done in his name. In all cases the right of subrogation is based upon the doctrine that the contract of insurance is treated as an indemnity, and the insurer as á surety is entitled to all the remedies and securities of the assured,. and to stand in his place, or upon doctrines of a simi
This being true, we see no reason why the right of subrogation should be denied in the one instance any more than the other, unless because of some prohibitory statute, or unless perhaps in the absence of any contract for subrogation the facts might be such as to negative the existence of any equities in behalf of the insurer. None of such possible exceptions, however, apply to this case. The authority upon which counsel for appellee depend for support of their position — a Colorado case — does not in our opinion sustain them.—Home Ins. Co. v. Railroad Co., 19 Colo. 48.
In that case the remarks of the court upon which counsel rely were addressed to the contention by counsel for the insurance company that its cause of action was supported by strong equities. The court said that if such were the case, the facts showing such equities should have been pleaded, thus giving defendant an opportunity to controvert them, or to confess them, because where the liability existed by the mere force of the statute, the equity of the insurance company was not necessarily very strong, and in some instances it might be very slight, or even have no existence at all. Nowhere in that case as we read it, was it denied that an equitable right of subrogation might exist, much less was it denied or questioned even by the slightest implication that the right of recovery by the insurance company might exist by virtue of an express contract between the owner and the insurer, by assignment to the latter from the former. In the case at bar, each policy issued by the plaintiff insurance companies contained the following clause: ■ “If this company shall claim that the fire was caused by the act or neglect of any person or corporation, private or mu
9. In directing a verdict for the defendant railroad company, the court gave as its reason that the railroad origin of the fire had not been satisfactorily proven,- — that it had not been proven so as to exclude a probability of its having occurred in some other way. Upon this question we deem it neither necessary nor proper to pass. The errors of the court in the incipiency of and during the trial were so serious and so prejudicial to plaintiffs, both as to the character of the evidence which they were permitted to introduce and as to the manner of its introduction, that the conclusion is irresistible that they did not have a fair trial; and because in the new trial which must be had the evidence may be materially different. For instance, conceding that the evidence admitted was insufficient to prove the fact, this might have been otherwise if the court had not excluded testimony offered with regard to the examination into the condition of the switch-engine which was supposed to have originated the fire, — or might at least have been sufficient to have required the submission of the question to the jury. It is not improper, however, and in view of the subsequent trial to be had, it is probably just to both litigants, that we should briefly at least allude to the widely divergent and extreme positions taken by the respective parties as to the amount and character of evidence necessary to establish the railroad origin of fire in cases of this character. Appellants seem to assume that very slight testimony alone is sufficient to make at least a
This citation applies with peculiar force to a question of this kind, where from the very nature of the case it is impossible to formulate a rule which will be applicable in all cases, and under all circumstances. In the De Busk case, the opinion was.directed chiefly to a discussion of the constitutionality of the fire statute. It is true the court said that the evidence in that case was sufficient to warrant the inference that the fire was caused by a pass
10. In the determination of this case we might ave contented ourselves with a judgment of reversal based upon the first error which we have considered, and not have discussed at all a number of questions upon which we have passed. In view of the fact, however, that there must be a new trial of this cause, and because, as stated by both counsel, there are a number of other suits pending growing out of the same fire, we thought justice to litigants required that we should pass upon these questions, they being properly presented in the case before us. We have most carefully endeavored, however, to avoid saying anything which might be prejudicial to either party in the determination of the questions which may arise in the retrial, which are not now before us on a complete statement of facts.
Reversed.