Flaherty v. Butte Electric Railway Co.

107 P. 416 | Mont. | 1910

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This is an action for damages for personal injuries, prosecuted by the plaintiff, a minor child, by his guardian ad litem. From a judgment entered in favor of the plaintiff, and from an order denying them a new trial, the defendants appeal. There are many specifications of error; but, in view of the conclusion we have reached, only a few of them require consideration.

1. It is urged that the plaintiff cannot sue by his guardian ad litem, but must proceed under section 6485, Revised Codes. With this we do not agree. Section 3599 of the Revised Codes provides: “A minor may enforce his rights by civil action, or other legal proceedings, in the same manner as a person of full age, except that a guardian must conduct the same.” Section 6481 of the same Code also provides: “When an infant # * * is a party, he must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending in each case. A guardian ad litem may be appointed in any c^se, when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to represent the infant, * * * in the action or proceeding, notwithstanding he may have a general guardian and may have appeared by him.”

■ If the provisions of section 6485 are exclusive, as contended for by appellants, then the last portion of section 6481 is meaningless. Even assuming that a minor plaintiff may proceed under section 6485, it is still within the legal discretion of the trial court to appoint a guardian ad litem under section 6481. Section 6485 is identical in meaning with section 376 of the California Code of Civil Procedure and section 9 of the Washington Code of 1881, and the construction given by the courts of California and Washington meets with our approval. (Durkee v. Central Pac. R. R. Co., 56 Cal. 388, 38 Am. Rep. 59; Hedrick v. Ilwaco R. & N. Co., 4 Wash. 400, 30 Pac. 714.) While authorities may be found supporting appellants’ contention, we think the decision we have reached is the only one which can be-made and maintain the harmony of our Code provisions.

2. The trial court was requested by defendants to instruct the jury that the negligence of the child’s mother, if shown, should be imputed to the child, and, if such negligence contributed to-the injury, it would bar recovery by the child. This charge the-trial court refused to give, but, on the contrary, gave an instruction that the negligence of the mother, if any, could not be imputed to the child. At the time of the injury the plaintiff was. less than three years of age.

In 1839 the supreme court of New York, in Hartfield v. Roper, 21 Wend. 615, 34 Am. Dec. 273, announced the doctrine of vicarious or imputable negligence, and the rule has been followed by the courts of New York and some other states. The doctrine is; founded upon the assumption that, since the child is non sui juris, the parent is keeper of, and agent for, the child, and therefore the act of negligence of the parent is deemed the act of the child, and the maxim, “Qui facit per alium, facit per se,” is. applied. We do not know of any other reason which has been advanced in support of the doctrine, and in view of our Code (section 3590), if for no other reason, the doctrine cannot apply here. Agency implies the power to delegate authority, while the-section last referred to provides: “A minor cannot give a delegation of power.” But, aside from this section, we think the doctrine erroneous. Section 3599, above, gives to the minor the same authority to enforce his rights by civil action as an adult, and to defeat his right by the act of another for which he is not in any sense responsible appears to us to be tantamount to a denial of his right altogether.

In 29 Cye. 553, it is said: “According to the great weight of authority, in an action brought for the benefit of a child who has sustained injuries through the negligence of another, negligence on the part of the parents or those standing in loco parentis will not be imputed to the child nor bar a recovery by him. The rule announced in Hartfield v. Roper has received .severe condemnation in many of the courts repudiating it as authority, an,d is very generally regarded as unsound by text-writers.” In 7 American and English Encyclopedia- of Law, second edition, 450, after referring to the courts which sustain the doctrine of the Hartfield Case, it is said: “But in other jurisdictions it is held that the negligence of the parent, guardian, or •custodian is not imputable to the child, because it is in no way responsible for the danger, had no volition in establishing the relation of privity with the person whose negligence it is sought to impute to it, and should not be charged with the fault of such person in allowing it to be exposed to danger which it had not the capacity either to know or to avoid.” And in 4 Current Law, 778, the same thing is said, as follows: “By weight of modern authority, negligence of a parent or custodian is not imputable to a child non sui juris, so as to bar an action for or on its behalf.” (6 Current Law, 766; 8 Current Law, 1108.)

The strictures upon the doctrine announced in the Hartfield Case have been severe. In 1 Thompson on Negligence, section 294, it is said: “As elsewhere seen, the doctrine of imputed negligence with reference to adults is generally repudiated, both in this country and in England. That it should be adhered to in any enlightened jurisdiction with respect to children is a reproach to the judges who uphold it. An adult person, when he •commits his person to the custody of another, does so at least voluntarily. An infant does not select his custodian; it is selected for him by the laws of nature, or by circumstances beyond his control. Certainly there is no reason why the ordinary principle that, where one is injured by the concurring negligence of two persons, he has an action against either or both, should not apply in the case of an injury to a child, unless the imputation is to be put upon the law of denying to feeble and helpless infancy the same measure of protection which it accords to adults. Such a conception is cruel, heartless and wicked. It can only hold in jurisdictions where property is placed above humanity. ’ ’

In refusing the defendants ’ requested instruction, and in giving the charge which it did, we think the trial court was correct.

3. It is contended that there is such a variance between plaintiff’s pleadings and proof as amounts to a failure of proof. It is admitted in the pleadings that the street railway company is a corporation, and that Le Sage was at the time of plaintiff’s injury the employee of the railway company in charge of its car as motorman. It is also admitted that Park street, upon which the accident occurred, was then a much used public thoroughfare. The complaint charges negligence in the following language: “That at a point between said Columbia and Crystal streets said ear was so operated as aforesaid, and driven as aforesaid by the defendant Le Sage, in such a careless, negligent and unskillful manner, that it collided with, and ran over the plaintiff herein, causing him such injuries as to necessitate the amputation of his right leg; that at said time, and under such circumstances, the defendant Le Sage was guilty of such inattention to his assumed duties and drove said car so carelessly, unskillfully and negligently that said injury occurred to plaintiff as aforesaid; that had said Le Sage shut off the electric current propelling said car, or applied the brakes thereto, which are attached for such purposes, either of which could be done with entire safety, and before colliding with this plaintiff, the injuries alleged herein, or any injuries to plaintiff, would not have been inflicted. ’ ’

“ ‘Negligence’ is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances-of the situation, or doing what such a person under the existing circumstances would not have done.” (Birsch v. Citizens’ Electric Co., 36 Mont. 574, 93 Pac. 940.) Assuming, without deciding, that, in the absence of a special demurrer, the general allegations of negligence contained above, if standing alone, would be sufficient, what then is to be said of the allegation “that had said Le Sage shut off the electric current propelling said ear, or applied the brakes thereto, which are attached for such purposes, either of which could be done with entire safety, and before colliding with this plaintiff, the injuries alleged herein, or any injuries to plaintiff, would not have been inflicted”?

We are asked by counsel for respondent, who placed this allegation in the complaint, to disregard it as surplusage, or treat it merely as an allegation that Le Sage had the means at hand to stop the car. But we cannot disregard it. It must have been intended for some purpose. Neither are we able to confine its. meaning as counsel would have us do. The language is not susceptible of such construction. In this clause the plaintiff says, in language too plain to be misunderstood, that, but for the failure of Le Sage to turn off the current or apply the brake, the injury to plaintiff would not have occurred; in other words, the failure of Le Sage to do either of these two acts was the direct and proximate cause of the injury, and without which the injury would not have resulted. There is here then pleaded, not only the direct and proximate, but the sole, cause, the causa sine qua non of the schoolmen.

In negligence cases, other than those arising between carrier and passenger, it is a rule quite generally recognized that where plaintiff in his complaint sets forth general allegations of negligence, and follows them with a statement of specific acts of negligence, he will be confined in his proof to the acts specifically pleaded. (Gulf etc. Ry. Co. v. Younger, 10 Tex. Civ. App. 141, 29 S. W. 949; Wallace v. San Antonio etc. Co. (Tex. Civ. App.), 42 S. W. 865; San Antonio Gas & Electric Co. v. Speegle (Tex. Civ. App.), 60 S. W. 884; McManamee v. Missouri Pac. Ry. Co., 135 Mo. 440, 37 S. W. 119; Chicago etc. Co. v. Wheeler, 70 Kan. 755, 79 Pac. 673.) While there are some courts which do not recognize the doctrine, the reason for the rule seems to us manifest. Assuming that the general allegations are sufficient, in the absence of a special demurrer or a demand for a bill of particulars, yet, if a bill of particulars is demanded and furnished, the courts generally hold that the plaintiff must confine his proof to the acts of negligence mentioned in such bill. If, then, the plaintiff anticipates the demand for a bill of particulars by specifying in his complaint the specific acts of negligence upon Which he intends to rely, it would seem to follow that he must be confined in his proof to the same extent as though he had furnished the same information in response to a demand for a bill of particulars. The plaintiff may, if he so elects, narrow the issues to a single act of negligence; but, having done so, he must be confined in his proof to such act. He ‘ ‘ cannot assert a right to go without the lines within which he voluntarily confined himself.” (Aikens v. Frank, 21 Mont. 192, 53 Pac. 538; Pierce v. Great Falls & C. Ry. Co., 22 Mont. 445, 56 Pac. 867.) If this were not so, the very purpose of pleadings would be destroyed, and, instead of the complaint apprising the defendant of the proof which he would be called upon to meet, it would become .a device to entrap him. Having reached the conclusion that the plaintiff in his complaint narrowed the issues to the single act of negligence on the part of Le Sage in failing to turn off the electric current or to turn on the brake, the fatal variance at once becomes apparent.

The evidence offered by the plaintiff discloses that, as soon as the child was discovered in a place of danger, the current was turned off, the emergency brake applied, and the car stopped within a distance of a very few feet, but not until after the injury had been inflicted. In fact, the witness Lally for the plaintiff, after telling what he and Le Sage did in their effort to •avoid the injury, says: “I do not think there was anything which could be done by either me or Mr. Le Sage from the time I, or either of us, saw the boy that was not done to stop the car.” Over the objection of defendants, the court submitted the case to the jury upon the theory that if the defendants were shown to be negligent in any respect, the plaintiff could recover; and under this general charge the jury might well have determined that Le Sage was negligent in failing to keep a proper lookout. In fact, it appears to us to be the only negligence which the evidence tends to prove. But that was not the negligence charged, and could not be considered. (Forsell v. Pittsburgh & Mont. C. Co., 38 Mont. 403, 100 Pac. 218.) Under the view of the pleadings which we have taken, the theory of the case entertained by the trial court, as disclosed by the instruction given, was erroneous.

It is not necessary to consider the question, urged by counsel, that the verdict is excessive. We do not think there is any merit in the other contentions made by appellants. But because the proof tends to disclose an act of negligence different from the one relied upon and does not support the allegations of the complaint, there is such a variance as amounts to a failure of proof; and for this reason the judgment and order are reversed, and the cause is remanded for a new trial.

'Reversed and remanded.

Mr. Chief Justice Brantly and Mr. Justice Smith concur.