127 P. 968 | Or. | 1912
Lead Opinion
delivered the opinion of the court.
“When any of the matters enumerated in Section 68 do not appear upon the face of the complaint, the objection may be taken by answer.”
The rule is laid down in Section 72, L. O. L., that—
“If no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court and the objection that the complaint does not state facts sufficient to constitute a cause of action.”
“Admitting that your decedent met his death as you state, you have no capacity to bring this suit on account of his residence being in Marion County, whereas your letters of administration were issued by the county court of Multnomah County.”
This was joined to the plea in bar, which utterly denies all the statements of the complaint except as noted, as well as alleging new matter in justification. The rule is well established in this State that a plea in abatement is waived by joining it with a plea in bar. Hopwood v. Patterson, 2 Or. 49; Fiore v. Ladd, 29 Or. 528 (46 Pac. 144) ; Morgan’s Estate, 46 Or. 233 (77 Pac. 608: 78 Pac. 1029) ; Rafferty v. Davis, 54 Or. 77 (102 Pac. 305) ; Wilson v. Wilson, 26 Or. 251 (38 Pac. 185) ; Owings v. Turner, 48 Or. 462 (87 Pac. 160). Under this state of the pleading, the attack upon the plaintiff’s representative character can avail the defendant nothing here.
The defendant himself testified, in substance, that, on being called by the- young lady, he went out and found the plaintiff’s intestate lying in the roadway and, inquiring what was the matter, he was told that there was a wire on his leg; that he told him that there was no wire on his leg but to get up and get out of there and not to annoy the people who were asleep at the hotel; that he appeared to have all his clothing on; did not say his leg was broken, and there was nothing about him to indicate to the defendant that he was injured at all, but that he acted like he was drunk; that, after the young lady had retired to her room, the defendant went down to the main floor and watched the man, who got up from the place where he first saw him in the road and went to the power house about 103 feet distant where he sat down on a box and appeared to go to sleep, and, after watching him until about 5 o’clock, he himself retired, and later in the forenoon, when informed by another guest that decedent’s leg was broken, he did everything he could for him, telephoning for a physician, and afterwards providing for his transportation to Portland as before stated.
“If you should find that there was no railing around the porch and that it was not lighted, then you must ask yourselves whether or not a reasonably prudent man, conducting a hotel of like character at that point, would*320 not have had those preventatives there, and if you find that he would have had them there, and that the defendant did not have them there, there has been a negligent act committed on the part of the defendant.”
In this connection it will be remembered that after charging that there was no railing around the porches, and there were no lights to warn the decedent that the porch was dangerous on account of its height from the ground, the complaint charges—
“That, on account of the lack of said railing and the lack of lights upon and around said porch, the said Charles Scholl fell therefrom and was injured and crippled as aforesaid, and if the said porch had been supplied with any railing, or had any lights thereon, the said Charles Scholl would not have fallen therefrom and would not have been crippled, injured, and bruised as aforesaid.”
It is not stated that the decedent fell from the porch from a point where he had a right to or was invited to be, or in what manner the absence of railing contributed to the accident. It would have been better if the complaint had stated the facts showing how the absence of the railing produced the injury complained of. The court might have then drawn the conclusion the pleader had urged, to wit, “that the accident happened on account of the absence of the railing.” The pleading is open to the criticism made by the case of Smith v. Buttner, 90 Cal. 95 (27 Pac. 29). In that case the plaintiif was a tenant of the defendant who, while she was residing in the house, caused it to be raised a few feet higher than it was before. The complaint charged that after elevating the house, and while the plaintiff was living in it, the defendant had failed and neglected to provide any safe and proper means of entrance to, or egress from, the house, and by reason of the negligence of the defendant in that respect the plaintiff, in endeavoring to descend from the house to the ground for a proper and lawful
Aside from the question of whether or not the pleading is sufficient in respect to the allegation about the absence of railing, the instruction is faulty in that it does not include the condition that the absence of railing is the proximate cause of the injury to the decedent. At best this was an issuable fact both as a question of pleading and of testimony, and the additional element that it must be shown by the testimony that this absence of railing, if it was a fact, contributed proximately to the injury of the decedent should have appeared in this instruction. On the question of pleading on this feature of the case, the following cases are applicable: Ten Broeck v. Wells (C. C.), 47 Fed. 690; Sneed v. Moorehead, 70 Miss. 690 (13 South. 235). On the question of
“If the accident charged in the complaint happened because of acts over which the defendant had no control, or of which the defendant did not know, then you must find a verdict in favor of the defendant.”
“Now if you should find in this case that Mr. Scholl, the deceased, was guilty of contributory negligence which brought about his injuries, but if you find that the result of this contributory negligence on his part could have been prevented by the defendant taking him in and administering unto him, and he failed to do that, notwithstanding the fact of contributory negligence on the part of the deceased, Charles Scholl, then and in that case the defendant would be liable because the contributory negligence of the deceased would not be the proximate cause of the injury which happened to him. In other words, though one may be guilty of contributory negligence, if the defendant has it within his power to minimize or stop the effect of such contributory negligence, and he failed to do that, why then his failure so to do becomes the proximate cause, notwithstanding the contributory negligence of the plaintiff.”
Under the pleadings and testimony it was at least debatable whether or not decedent was really hurt when defendant found him, or whether he was merely drunk, or, even if he then had a broken leg, that the appellant might not have honestly mistaken his condition for one of intoxication and his talk for the maudlin mutterings of a drunkard.
It is not necessary to decide here whether a defendant in such cases is to be judged by what he ought- to have known or only by his actual knowledge, nor is it intended to distinguish or modify the utterances of this court on. that subject already quoted. On the record made in this case it matters not which standard should be adopted, for the instruction given by the court on that feature and last above quoted omits entirely the element of defendant’s knowledge, either actual or imputed, of the decedent’s condition of danger. On account of this omission, the rules, as stated by the court, would make the defendant virtually an insurer of the injured person as to the consequences of his own imprudent conduct. As against any control of the defendant, barring disturbance of the other guests, the plaintiff’s intestate had a right to wander about the premises in the dark or lie outdoors upon the ground at 2 o’clock in the morning either drunk or sober. Under such circumstances, it is not apparent that the defendant owed him any duty or had any authority to prevent him from doing so. At least the duty would be far different from what would be due to one suffering from a broken leg. It is clear that the court should have, in any event, submitted to the jury the question of whether the defendant knew, or by the exercise of reasonable diligence ought to have known, of the decedent’s broken leg and consequently helpless condition. It is easy now to look back and say that some time during the night, between bedtime and the next morning, when the fracture of the decedent’s leg was actually discovered, he had suffered that disabling injury. On the other hand, there was a fair question in the testimony as to whether, during the time
“If drunkenness was the proximate cause of the death of the deceased, if he got drunk under such circumstances as any reasonable and prudent man could foresee that he was putting himself in such a condition that this result might probably happen, then the plaintiff cannot recover.”
This instruction should have been given in connection with the defense of contributory negligence urged by the defendant in his answer. In no part of the charge given to the jury was there any attempt to define what effect voluntary drunkenness of the decedent as an element of contributory negligence would have upon the liability of the defendant. In Smith v. Norfolk & So. Ry. Co., 114 N. C. 728 (19 S. E. 863, 923: 25 L. R. A. 287), the following language occurs: “We are also of the opinion that there was an error in ignoring that universally established principle of the law of contributory negligence which imposes upon one, who has voluntarily disabled himself by reason of intoxication, the same degree of care and prudence which is required of a sober person. * * It would be a strange rule of law that regarded a certain course of conduct negligent and blameworthy upon the part of a sober man, but that held the same conduct on the part of the same man when intoxicated excusable. Drunkenness will never excuse one for failure to exercise the measure of care and prudence which is due from a sober man under the same circumstances.
It is substantially charged, as a ground of contributory negligence, that at an unreasonable hour of the night, after all others on the premises had retired, the decedent went outside of the hotel without the knowledge or notice of the defendant and, while so intoxicated at that time, received the injury of the broken leg, but after the accident the decedent did not notify or warn the defendant that, he had sustained the injury. That this would be contributory negligence is sustained by the following authorities: Dailey v. Distler, 115 App. Div. 102 (100 N. Y. Supp. 679) ; Cook v. McGillicuddy, 106 Me. 119 (75 Atl. 378) ; Gaffney v. Brown, 150 Mass. 479 (23 N. E. 233) ; Walker v. Midland Ry. Co., 55 L. T. R. (N. S.) 489. The same effect was given to like conduct of sober persons in the cases of Watson v. Manitou Ry. Co., 41 Colo. 138 (92 Pac. 17: 17 L. R. A. [N. S.] 916), and Reed v. Axtell, 84 Va. 231 (4 S. E. 587). In the first of
It may be true that the decedent was sick from causes independent of what he had drunk, and that he was injured without any negligence on his part, and it may also be that his negligence, if any, had culminated, and that the defendant was subsequently negligent in a way to produce the injury complained of, but with this question of fact we have nothing to do for the present purposes. There was also testimony on which the defendant was entitled to rely, as supporting his theory of the case, that the decedent was negligent in a way contributing to his own harm in that he became voluntarily intoxicated and on account of that experienced the injuries of which complaint is made, and the defendant was entitled to have this theory of the case presented to the jury with proper instructions. Most of the cases relied upon by the plaintiff are those in which the defendant had control of or was actively operating some agency, like a locomotive or street car, by the positive use of which
It was error not to submit to the jury the question of defendant’s knowledge, either actual or imputed, of Scholl’s true physical condition as a measure of the former’s duty to the latter. It was also error not to submit the question of decedent’s alleged voluntary intoxication in connection with the defense of contributory negli-. gence, so that the jury could determine whether plaintiff’s intestate was himself guilty of negligence, as charged, which operated with defendant’s fault, if any, and continued until, and contributed to, the injury complained of, in which case, under all the authorities, the recovery of damages would be defeated.
The conclusion is that the decision of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed.
Dissenting Opinion
delivered the following dissenting opinion:
This is an action for personal injuries to plaintiff’s intestate. The cause was tried before a jury, resulting in a verdict and judgment in favor of plaintiff for $2,000. The' allegations of the complaint are to the effect that the plaintiff was duly appointed by the county court of Multnomah County, Oregon, as administratrix of the
I am unable to concur in the majority opinion of my associates. It is urged by counsel for defendant in their brief that the court should have dismissed the action upon its own motion, for the reasons: That the county court of Multnomah County, Oregon, was without jurisdiction to appoint an administratrix of the decedent’s estate; that the circuit court had no jurisdiction to try the case; that there was no estate entitled to bring the action; and that the appointment of the administratrix was void. In order to sustain the allegation of the complaint as to the appointment of the administratrix, the defendant offered in evidence the order and decree of the county court of Multnomah County, Oregon, appointing Mary J. Scholl as administratrix of the estate of Charles Scholl, deceased, and ordering letters of administration to be issued to her. Counsel for defendant challenges the right of plaintiff to maintain this suit.
Section 68, L. O. L., provides that the defendant may demur to the 'complaint when it appears upon the face
It was incumbent upon the defendant, if he desired to raise the question of the right of plaintiff to prosecute the action, to present the same by a proper plea. This would have been in the nature of a plea in abatement, which was waived by defendant pleading to the merits. Prior to the amendment of Section 74, L. O. L., in 1911 (see Laws 1911, p. 144), a plea in abatement was waived by pleading the same together with a plea in bar. Hopwood v. Patterson, 2. Or. 49; Fiore v. Ladd, 29 Or. 528 (46 Pac. 144) ; Morgan’s Estate, 46 Or. 233 (77 Pac. 608: 78 Pac. 1029); Rafferty v. Davis, 54 Or. 77 (102 Pac. 305). Under these circumstances, after the trial of the cause had progressed for some time, we do not think that the defendant was in a position to raise the question as to the capacity of the plaintiff to bring the action.
Considering the motion for a nonsuit and the request of defendant for a directed verdict, it appears from the evidence that the defendant was the proprietor and manager of a health resort consisting of hotel, hot springs,
From the evidence it appears that the man was thinly clad, and that-the weather was cool and damp; that the roadway was a driveway used in connection with the hotel, between the hotel and its electric light power house. ' It appears, however, that Captain Belcher, the proprietor, went down to the dining room and placed a light in the window where it would shine on the decedent, who, as he states, was out by the woodshed near the power house. He claims that he watched the man for one and three-quarter hours and then retired again. The
It is also in evidence that the power house where Scholl was found was 75 feet from the hotel; that there was a light in the hall, near the center of the hotel, at the head of the stairs; that the electric lights were usually turned off at 11 o’clock, after which oil lamps were lighted and placed near the head of the stairway; and that once in a while these lights went out. It appears that the decedent was playing cards in the hotel office the evening before the accident. When found in a delirious condition he was thought to have delirium tremens. After it was ascertained that the decedent’s leg was broken, he was put on a stretcher and carried into the power house, which was warmed only by the sun. It seems that the defendant telephoned for a doctor, a distance of 10 miles, and, failing to obtain one, had the decedent taken upon a stretcher to a boat landing— at about 9 o’clock — where the injured man waited for nearly two hours before being taken on the boat to the Good Samaritan Hospital in Portland, where he died the next morning about six hours after reaching there. It appears that the clothing of the decedent was damp
Much of the evidence on the part of plaintiff is contradicted on the part of defendant, who claims that all the porches had railings with the exception of the rear porch, which was one foot above the ground; the roadway being eight or ten feet below the level of the back porch. The defendant states that he asked the decedent to either come into the house or go away; that he recognized the man to be Charlie Scholl, who registered at the hotel August 23rd; that the man was really delirious. He further states that he did not understand any one to ask for bandages, and that he did not remember using the language attributed to him, and furthermore had no occasion to use it; that he had never observed Scholl around the place under the influence of liquor. In short, there was evidence introduced on the part of plaintiff tending to sustain the allegations of the complaint. We have nothing to do with the conflict in the evidence. This was settled by the "verdict of the jury. It is contended on behalf of defendant, in support of the motion for a nonsuit, and as alleged in the further and separate answer, that the decedent came to his death through alcoholism. The defendant, however, testified on cross-examination to the effect that he never saw the deceased in an intoxicated condition while a guest at the Springs. It appears that no complaint was made to the defendant by any of the guests.
The testimony of McCosky, Fallon, Dr. McKay, Mrs. Scholl, and Mr. Deckenbach tends to show that the decedent did not die from alcoholism. The jury by their verdict found that the death of plaintiff’s intestate was caused by the negligence and carelessness of defendant in failing to have lights and a railing on the rear porch,
It is urged by counsel for defendant that the defendant owed no duty to plaintiff’s intestate, and therefore the court erred in permitting the jury to consider the evidence as to what occurred outside of the hotel. The driveway where defendant found decedent appears to be connected with the resort and a part of the hotel premises. It can hardly be said, either from a legal, moral, or humane standpoint, that the proprietor of a hotel is relieved of all duty to his guest when the latter crosses the hotel threshold and goes outside upon the grounds. It is the duty of the hotel keeper to take reasonable care of his guests so that they are not injured by want of care on his part while they are at the inn as his guests. Wandell’s Law of Inns, Hotels, and Boarding Houses, p. 114. The defendant did not stand in the position of a stranger to Scholl at the time the decedent was found in the driveway of thé hotel crippled, delirious, and pleading for help. The evidence tends to show, and the jury by their verdict in effect said to defendant: Charles Scholl, the decedent, was your guest, and ye took him not in; in pain and delirious, helpless, with a broken limb, prostrate upon the ground, and ye ministered not unto him; thirsty, and ye gave him no drink; partially naked, and ye clothed him not; he asked for bandages with which to bind his broken limb, and ye gave him no cloth.
The law states that it was the duty of the defendant to take reasonable care of Scholl while the latter was a guest at his summer resort. The jury found, from the evidence, that the defendant was negligent in his duty, causing damages to the decedent’s
In the case last cited it appears that the deceased was run over by a train of cars of the Northern Central Railway Company. After the train was stopped, the injured man was found upon the pilot of the engine in a helpless and apparently lifeless condition. The employees of the company moved him to a warehouse where they locked him up for the night. On opening the warehouse in the morning, the man was found to have come to life during the night and to have afterwards died from the hemorrhage of an artery which had been severed by the collision. It was held that, from whatever cause the collision occurred, after the train was stopped it became at once the duty of the agents of the defendant, in charge of the train, to remove the injured person, and to do it with a proper regard to his safety and to the laws
It is a rule of the common law, recognized as necessary to good order and to the proper protection of society, that, in the exercise of his legal rights, one is bound to observe ordinary care not to injure others. As subjects of this general duty, persons under disability constitute no exceptions. And one who is guilty of a breach of such duty as to them may be held liable for the consequences although his act or omission might have been attended with less serious results, or might not have resulted in injury at all, but for the injured person’s previous disability. But the law goes further and imposes the duty of exercising special care toward persons more or less disabled from caring for themselves. Note to Union Pac. Ry. Co. v. Cappier, 69 L. R. A. 513, on page 514.
It would seem that the injury and danger would have been greatly lessened if the defendant had allowed Scholl to be taken into the hotel the next morning after the accident and warmed and cared for, as the evidence tends to show he was requested to do.
There are but few similar cases in the records of the courts in the various states. In the case of Depue v. Flatau, 100 Minn. 299, 303 (111 N. W. 1, 2: 8 L. R. A. [N. S.] 485), the court, speaking through Mr. Justice
In the case of Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 525 (74 Pac. 15, 19: 63 L. R. A. 238: 98 Am. St. Rep. 85), the court says: “No purpose or design on the part of the motorman to injure was essential to defendant’s liability, and the plain object of the instruction was to so inform the jury. By it the jury were substantially told that, although one might not have the actual intent- to injure, still if there is on his part a reckless indifference or disregard of the natural or probable consequences of doing or omitting to do an act, and he does or fails to do the act, conscious, from his knowledge of existing circumstances and conditions, that his conduct will likely or probably result in injury, he is guilty of wanton negligence.”
The court in the case of Bessemer Land & Improvement Co. v. Campbell, 121 Ala. 50, 59 (25 South, 793, 798: 77 Am. St. Rep. 17), says: “The person upon whom the duty of action rests does not discharge it by using
In my opinion the questions as to the proximate cause of the injury, contributory negligence, and drunkenness were properly submitted to the jury by the trial court in the following instructions:
“If, on the other hand, you should find that the defendant did not have this railing there, nor this light there, as I have indicated to you, and as a result of their absence the deceased, Charles Scholl, fell, this of itself would not entitle the plaintiff to recover, because there is a proposition of law which says that one shall not be guilty of contributory negligence. * * And though there was negligence on the part of the defendant, if the deceased’s own contributory negligence, concurrently and in combination with the negligence of the defendant, without any intervening or sufficient cause- coming in between, would prevent a recovery. So that, even though there was negligence on the part of defendant, and you should also find there was contributory negligence on the part of the deceased, your verdict must be for the defendant.”
The instruction held to be faulty in the majority opinion is fully cured by the following instructions, which should be considered together with that referred to:
“If, however, you should find there was negligence on the part of defendant, and no contributory negligence on the part of the deceased, then you are to ask yourselves, ‘What was the result of this negligence?’ If, as a result*343 of this negligence, this man, the deceased, received fatal injuries — that he was internally injured, that he was made unconscious, and from the exposure which took place there contracted pneumonia — then you will ask yourselves whether that was the result of the negligence of the defendant. If it was — that is, if the negligence of the defendant was the proximate cause of the condition of the deceased — and I will explain to you the meaning of that term ‘proximate cause’ later on, then the plaintiff would be entitled to recover, as I shall hereafter indicate to you.”
The question of intoxication was fairly submitted to the jury by the following instructions:
“Now much has been said about ‘proximate cause,’ and it is well that you should understand that term. By ‘proximate’ is meant ‘next,’ and ‘proximate cause,’ ‘next cause.’ There may be a link in the chain of causes, or there may be an independent cause. What did Mr. Scholl, the deceased, die from? Was he, or was he not, in an enfeebled condition when he came there? Was he, or was he not, addicted to drink, as a result of which his troubles were brought upon him? If those causes independent of anything which happened at Collins Springs, brought about his death, then, of course, the defendant cannot be liable.”
In the majority opinion it is stated: “It is clear that the court should have in any event submitted to the jury the question of whether the defendant knew, or by the exercise of reasonable diligence ought to have known, of the decedent’s broken leg and consequently helpless condition.”
According to the statement of counsel for defendant, on page 46 of their brief, the court did submit this question to the jury. I quote from that page of their brief:
“Succinctly stated, the court instructed the jury * * that defendant was liable if he found deceased outside the hotel in an apparently injured condition, and did not pick him up and provide shelter and protection for him and use reasonable care in treating him till proper medical attention and nursing could be received, and that,*344 if defendant knew, or with reasonable care could have known, of deceased being in such condition and could not care for himself, defendant was liable.”
The cause was by the instructions of the trial court fairly submitted to the jury. After a careful examination of all the evidence which is contained in the record, it cannot be said that there is no competent evidence to support the verdict; and, under the provisions of Section 3 of Article VII of the Constitution of Oregon, the verdict should not be disturbed.
The judgment of the lower court should be affirmed.