Ecclesine v. Great Northern Ry. Co.
194 P. 143
Mont.
1920
Check Treatment
MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

Plaintiff recovered judgment for damages for personal injuries, and defendant appealed therefrom and from an order denying a new trial.

A general demurrer was interposed to the complaint but [1] overruled by the trial court, and error is predicated upon the ruling. The specific objection urged is that the complaint fails to allege that plaintiff was employed by the defendant at the time he received his injuries, or at all. It is not alleged that he was a passenger upon the defendant’s train; neither can any fair inference be drawn from the pleading that plaintiff and defendant sustained any particular relationship whatever one to the other. The complaint cannot be sustained.

(1) It is fatally defective if the action be treated as one arising under the federal Employers’ Liability Act. (35 Stats, at Large, 65.) That Act extends its provisions only to an employee of a common carrier by railway engaged in interstate commerce and to no other person or class of persons. (Robinson v. Baltimore & O. R. Co., 237 U. S. 84, 59 L. Ed. 849, 35 Sup. Ct. Rep. 491 [see, also, Rose’s U. S. Notes].) To make out a case under that statute, it is indispensable that the complaint disclose by an appropriate allegation that at the time of the accident the injured party was employed by the defendant. (2 Roberts on Federal Liability of Carriers, sec. 682.)

(2) The same rule applies if the action be considered as one arising under our state Employers’ Liability Act (Laws *4741911, Chap. 29), for our statute is in all substantial particulars a copy of the federal Act. (Cornell v. Great Northern Ry. Co., 57 Mont. 177, 187 Pac. 902.)

(3) If it was the intention of plaintiff to invoke the provision of the federal Safety Appliance Act (27 Stats, at Large, 531, as amended, 32 Stats, at Large, 943, and supplemented, 36 Stats, at Large, 298), the complaint is equally defective. In enacting the original statute above, the congressional purpose was clearly defined and declared in the title: “To promote the Safety of Employees and Travelers upon Railroads,” and the term “travelers” refers to passengers. (Illinois Central R. R. Co. v. Williams, 242 U. S. 462, 61 L. Ed. 437, 37 Sup. Ct. Rep. 128.) These two classes of persons, and only these, are comprehended by the Act, and neither the amendment nor the supplement enlarges the scope in this respect. "Whether these Acts by necessary implication provide a remedy at the instance of a private individual belonging to either of the classes mentioned, or merely give recognition to a right arising under the rules of the common law, is not material here. The state courts are given concurrent jurisdiction in civil actions arising under these statutes, and matters of pleading and practice are governed by the local laws. (2 Boberts on Federal Liability of Carriers, sec. 878.) If it can be said that this is a statutory action arising under the Safety Appliance Act, as appears to be indicated in Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33, 60 L. Ed. 874, 36 Sup. Ct. Rep. 482 [see, also, Rose’s U. S. Notes], it is indispensable, that, by appropriate pleading,' plaintiff shall bring himself within one of the two classes for whose benefit the statute was enacted. This is the rule now too firmly established in this jurisdiction to admit of controversy. (Kelly v. Northern Pac. Ry. Co., 35 Mont. 243, 88 Pac. 1009; Daily v. Marshall, 47 Mont. 377, 133 Pac. 681.)

(4) Neither can this complaint" be sustained upon the theory that this is the ordinary action for damages for [2] personal injuries resulting from negligence. Actionable *475negligence arises only from a breach of legal duty, and to state a cause of action for damages resulting from negligence, it is necessary that the complaint disclose the duty, the breach, the resulting damages and that the breach of duty was a proximate cause of the injury. (Fusselman v. Yellowstone Valley etc. Irr. Co., 53 Mont. 254, Ann. Cas. 1918B, 420, 163 Pac. 473.)

Because this complaint fails to disclose that defendant owed to plaintiff any legal duty, it fails to state a cause of action.

(5) Counsel for respondent attempt to invoke the rule [3,4] that whenever a cause has been tried and evidence introduced without objection, the complaint will be deemed to have been amended to admit the evidence, if this is necessary to sustain the judgment; but that rule has no application here. It applies only to a case in which the objection to the sufficiency of the complaint is raised in the supreme court for the first time, and the reason for the rule is obvious. The sufficiency of the complaint may be tested by demurrer or by objection to the introduction of evidence. In either event, the adverse ruling is excepted to and the exception once saved is saved for ¿11 purposes. (Ferrat v. Adamson, 53 Mont. 172, 163 Pac. 112.) The practice of law would become a farce if the rule were established that a party who has once saved a point by timely objection and exception to the ruling must repeat the objection thereafter every time the question is raised during the proceedings in the case, under penalty of having his exception deemed waived. Neither common sense nor any recognized rule of law sanctions such practice. The courts, including this one, may not have observed the distinction above on all proper occasions, but the error in failing to do so has not been repeated so often as to give rise to the application of the maxim, ‘‘communis error facit jus.” It is not necessary to refer to the observations of this court and other courts upon an objection to the sufficiency of a pleading raised in the appellate court for the first time, for this is not that case.

*476It is suggested that the demurrer was submitted to the lower [5] court without argument, but it is not rendered less effective for that reason. We know of no rule of law which requires counsel to support his objection with argument. Doubtless, if the trial court had considered argument necessary, it would have been requested; but in the absence of anything to indicate the contrary, it must be presumed that the ruling upon the demurrer was made deliberately even though it was erroneous. This case does not present any question of express waiver or aided by subsequent pleading.

The other assignments need not be considered, for if the complaint is amended, different issues may be presented. The complaint does not state a cause of action and will not support the judgment.

The judgment and order are reversed and the cause is remanded for further proceedings.

Reversed and remanded.

Mr. Chief Justice Brantly and Associate Justices Hurly, Matthews and Cooper concur.

Rehearing denied December 18, 1920.