70 P. 365 | Kan. | 1902
The opinion of the court was delivered by
The reasons urged for the exclusion of the evidence are, first, that the same was irrelevant and immaterial, because not within the issues in this case ; second, that when the case was in the court of appeals, defendant’s attorneys admitted-in their brief, filed in that proceeding in error, that the
"The plea of contributory negligence is a plea in confession and avoidance, which admits negligence on the part of the defendant, but seeks to avoid liability therefor by alleging that plaintiff was guilty of negligence which contributed to his injury.”
We are not ready to grant that the authorities cited fairly support the law as thus laid down, though remarks obiter dicta contained in some of them probably do. However, immediately following this quotation is the statement: "But this is not the rule in those states whose codes permit the defendant to set up as many defenses, whether of law or of fact, as he may see fit.”
Our statute (Gen. Stat. 1901, § 4528) permits the defendant to " set forth in his answer as many grounds of defense . . . as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” Notwithstanding this provision, the pleader may not rely in the same plea on absolutely inconsistent defenses. He cannot admit and deny in the same breath. He may, however, so adapt his pleadings as to meet the possible conditions and.
Beyond question, a defendant might take advantage of plaintiff’s contributory negligence; should such be developed in the making of plaintiff’s case, even though the defendant had pleaded nothing but the general denial. It would be a queer rule that would deprive him of this, had he added to such general denial a plea of contributory negligence. The plea of contributory negligence, standing alone, would be one in avoidance, but it cannot be said to be one in confession, where accompanied by a general denial. In Louisville & Nashville R. R. Co. v. Hall, 87 Ala. 708, 6 South. 277, 4 L. R. A. 710, 13 Am. St. Rep. 84, at page 724, the law was announced as follows:
“A denial of the negligence charged, or plea of not guilty, although pleaded separately, repels all pre*520 sumption of confession which- arises from the plea of contributory negligence when pleaded alone.”
In Cole v. Woodson, 32 Kan. 272, 4 Pac. 321, which was an action for slander, where defendant had denied, and also pleaded, the truth of the slanderous words, this court said, at page 276 :
“It would certainly be a great hardship to a defendant who has been sued for slander to be required to admit that he had used the alleged slanderous words, when in fact he may never have-used them, in order that he may be allowed to show that such words are in fact true. And it would equally be a great hardship to him to be required in effect to admit that the' words are false and slanderous, when in fact they may be-true, in order to be allowed to make the defense that he never used such words. Our statutes do not tolerate any such unjust rules, but allow a defendant to set forth as many defenses as he may have, which, in slander cases, may be that he did not úse the words charged, and also that the words are true. And it makes no difference what the common law may have been, or what may have been decided by courts in other states, where their statutes are different from the statutes of Kansas. The statutes of Kansas must govern in actions originating and instituted within the borders of Kansas, and where .they are clear and explicit, we need not look any further.”
In Bell v. Brown, 22 Cal. 671, at page 678, tha court, commenting on the provisions of a statute like our own, on a right it gives a defendant to set up all his defenses, said:
“It is an absolute right given him by law, and the principle is as old as the common law itself. He may fail to prove one defense by reason of the loss of papers, absence, death, or want of recollection of a witness, and yet he. ought not thereby to be precluded from proving another equally sufficient to defeat the action.”
In Treadway v. The S. C. & St. P. R. Co., 40 Iowa,
“The defendant, its officers and agents thereunto duly authorized and empowered, entered into and contracted with the said plaintiff whereby the said defendant was to put and place lights in said barn for the use of the plaintiff in and about such business.”
This is an allegation of action, not of agency. It is nothing more than an averment that the defendant did these things.
“A failure to deny under oath an allegation that a principal through his agents did a certain act is not an admission under the statute (requiring the denial to be under oath) that the principal did the act complained of.” (16 Encyc. Pl. & Pr. 910, note 2 — citing Mo. Pac. Rly. Co. v. Finley, 38 Kan. 550, 16 Pac. 951.)
Nor do we think the fact that, for the first time in the progress of the litigation, defendant then sought to show that it was not the owner of the light plant at the time of the injury, avails. It can easily be seen how such a fact might be overlooked by an attorney trying a case, or by the officers of a corporation who had newly come to their offices and were unaquaint'ed with the history of the corporation, or, even if fully known by either of these, we know of no rule that precludes a party from proving a meritorious defense on the second trial, though he had neglected to do so
We think the district court erred in refusing to permit the proof offered; therefore we reverse its judgment and remand the case for a new trial.