Central Law Journal.

ST. LOUIS, MO., SEPTEMBER 1, 1916.

RULE OF NEGATIVE PREGNANT IN PLEADING APPLIES ONLY TO AVERMENT OF MATERIAL FACTS.

In this, the very heyday of reform in judicial procedure and the getting away from the technicalities of the common law, a decision by the Oregon Supreme Court reversing trial court, because a conjunctive averment in an answer setting up new matter in defense was conjunctively denied in the reply, comes upon us with something of a shock. White v. East Side Mill & Lumber Co., 158 Pac. 173; s. c. (on petition for rehearing) id. 527.

The petition in this case claimed that plaintiff's deceased, a traffic policeman, was killed by defendant's auto truck being carelessly and negligently driven against him, causing his death. The answer set up by way of new matter, contributory negligence by deceased, in not keeping a careful watch over passing traffic in that he "carelessly and negligently turned his back upon defendant's auto truck and failed to look out," etc. The reply denied that deceased "carelessly and negligently turned his back," etc. Defendant demurred to the reply as not stating facts "sufficient to constitute a defense to the new matter," notice being given. that the reply is "conjunctive in form and pregnant with admissions of the allegations in the affirmative answer," etc. This demurrer being overruled, defendant appealed from the verdict and upon this point alone the cause was reversed and remanded upon unanimous opinion.

The court states that: "It is a rule everywhere and under all systems of pleading that where several material facts are alleged conjunctively, the denial must be so specific as to indicate the intent of the pleader to deny all of such allegations, and it is the universal rule that material facts alleged conjunctively must be denied disjunctively."

Speaking of this reply, it is said: "It denies that he carelessly and negligently turned his back on the defendant's auto and failed to look out for danger of being struck, which is entirely consistent with the theory that he might have turned his back to the approaching truck, but that the act was not done in a careless or negligent manner, or that he might have turned his back without negligence and yet have failed to look out for danger of being struck."

In the opinion on motion for rehearing it was said: "It is plain, and every lawyer is cognizant of the fact, that a denial that a person 'carelessly' did an act is not a denial that he did the act, and a denial that a person 'negligently' failed to look out for his safety is not a denial that he actually failed to do so, but goes only to the manner in which he failed."

For the purpose of argument we may admit the rule that material facts alleged conjunctively must be denied disjunctively, but there is a severe limitation in the application of the rule. What, if anything, was the "material" fact in this answer that was conjunctively alleged? The allegation, stripped of adverbs, was deceased's turning his back and failing to look out for danger. That is not a material averment, unless by so turning and failing to look he subjected himself to the fate of being run over. There was no sufficient averment in the new matter of justification by defendant in running down deceased, and when he demurred to the alleged conjunctive denial, another rule fully as well known cut back to the defective answer.

But is there a conjunctive averment at all? Is it not a single averment to say one "carelessly and negligently" turned his back? These words mean the one thing. Thus, in a Kentucky case, the petition alleged that "defendant carelessly and negligently set fire to its depot," and flames were communicated to plaintiff's building. Defendant denied that it "carelessly and negligently set fire," etc. The court said: "Treating the words as synonymous, considered as a whole, we think the answer

must be taken to be a statement that the company in fact set fire to its depot by sparks and coals thrown from its locomotives, but did not do so negligently or carelessly." Railroad v. Barker, 94 Ky. 71, 21 S. W. 347.

Is there a conjunctive averment in the statement that deceased "turned his back and failed to look out?" What does this mean in common understanding? It seems to mean that because he turned his back he failed to look out. One or the other part of the averment may be wholly surplusage or merely argumentative. In either event, it its not a conjunctive averment of two distinct material facts.

The court cites Bliss on Code Pleading, § 332. But that very section shows that liberality of construction of pleadings enjoined upon courts, by statute, does not excuse a negative pregnant in states where it is necessary to make oath to pleadings, because "no one could be convicted of perjury who should swear to such a denial, as it is uncertain what fact he intended to deny." There seems quite a negative pregnant in this excerpt as a supporting authority. If the pleader does not have to make oath, the conjunctive denial might be an irregularity. This section also says: "In Missouri and Iowa, a negative pregnant is treated as an informality only."

A familiar illustration of a negative pregnant, according to Mr. Bliss, is shown in Young v. Catlett, 6 Duer. 437, in which it is said: "A denial that A went to Rome and to Egypt and to Jerusalem and returned from Jerusalem to New York is not a denial that A went to Egypt," and this is so because there were distinct acts averred conjunctively. This is not the case when it is averred that one "carelessly and negligently" does a thing, or that he turned his back and failed to notice. The turning of the back is argumentative recital preceding the averment of a material fact.

A California case shows a real negative pregnant where the gravamen of the action was obstructing the windows of a tel.

Defendant denies that he "entered

and closed up" windows. It was said there was no denial of the closing. There were here distinct acts conjunctively alleged. Larney v. Mooney, 51 Cal. 610.

Take the Oregon cases the court cites. One states a conjunctive averment that plaintiff was "mentally infirm and not of sound mind and so insane as to be wholly incapable of attending to business." Scovill v. Barney, 4 Ore. 288. It was held there was an "aggregated statement of facts" in a conjunctive averment. That reason would not apply to the averment in this case. There is but one material fact averred in this pleading-careless and negligent failure to notice. The other Oregon case showed two distinct facts in a replevin petition a wrongful taking and a wrongful detention. If there were both, demand was unnecessary; if detention only, demand was necessary, as the court states. When conjunctively alleged they should have been disjunctively denied. Moser v. Jenkins, 5 Ore. 447.

Where there was an averment that defendant carelessly, negligently and wantonly ran over plaintiff's mare, a denial in haec verbis was said not to be a denial that defendant occasioned the injury complained of. Harden v. Railroad, 4 Neb. 521. Disjunctiveness seemed not here considered at all, but there is negative pregnant, as plainly

appears.

We have patiently considered the rule upon which the court assumed to proceed, but which, even if it should not be ignored. entirely, ought to be applied with reason. This is not, for example, like the Nebraska case, where wrong would be inferred from doing the act complained of. The reply in this case to make any issue at all had to be that though plaintiff may have failed to notice, he did not do so negligently. It was a material fact in the Nebraska case that the mare was injured. It was not a material fact in this case that deceased turned his back. The only material fact was that he negligently turned his back, or negligently failed to notice. Turning his back

was but inducement for the averment that he failed to notice.

We notice the daily press of Oregon is assailing this decision, and considering that there could be no possible misunderstanding, in ordinary parlance of what was meant, it is hard to see where any substantial injury resulted from the ruling by the trial court. The case was tried as it otherwise would have been tried, and well might the Oregon court "regret being compelled to reverse this case upon a question of pleading." But we do not think that the court was under any such compulsion.

as a precedent for other cases, these dissentients would be right in contending that a question is never settled until it is settled correctly-otherwise they are wrong. A judicial settlement, whether on strict principle or otherwise, is a settlement that creates a precedent. If that is to be changed we have a legislature which should change it. Furthermore, a settlement for dissenting judges, just as for others, ought to be decreed a settlement of a principle and of every legitimate deduction therefrom. If the principle settled by a majority is broad enough, it ought to change greatly the theory upon which a former dissentient proceeded. Change of personnel of judges should not work uncertainty in that which an appellate tribunal is constituted to set at rest.

NOTES OF IMPORTANT DECISIONS.

COURTS

OPINION BY A DIVIDED COURT.—Remembering that we have seen dissenting judges holding to their views on questions in which they had interposed dissenting opinions, we submit what was said by South Carolina Supreme Court in Matthews v. Clark, 89 S. E. 471.

"It is said that the authorities cited embrace opinions by a divided court. It is well to clear up a misapprehension in the minds of the bar as to the force of a decision of the court in cases in which the court is divided. A dissenting opinion shows that the case has been thoroughly considered. The opinion of the majority governs. When that question arises in future cases, the dissenting justice is as much bound by the decision of the majority as is the justice who wrote the prevailing opinion. The dissenting opinion, within the jurisdiction of the court, strengthens the case. Outside of the jurisdiction of the court, where the decision is not binding but merely evidence as to what the law is, of course the conflict of the witness weakens the force of the opinion."

We have come across cases where dissentients, from change of personnel in a court, have come to represent the majority, and they have not hesitated to reverse former holdings, all theory of stare decisis to the contrary notwithstanding. And some judges have rather boasted that their dissenting views have eventually come to be adopted as law by the court.

If a decision by an appellate tribunal was only to decide a particular case and not stand

MARRIAGE-ANNULMENT FOR INTENT BY DEFENDANT NEVER ΤΟ CONSIDER MARRIAGE BINDING.-It was held by Supreme Judicial Court of Masachusetts, that where a woman marries solely to secure the right to be known as a married woman and with the affirmative intention to leave her husband at the church door and never to see him again, and does so leave him, he may have the marriage annulled for fraud. Anders v. Anders, 113 N. E. 203.

The court reviews decision, holding to nullity because of incapacity and refers to an English case in which "upon great consideration it was held that the objects for which matrimony exists are as much defeated, in case the wife wilfully persists in refusing to have marital intercourse when she can as they are in case she is willing, but for some reason cannot."

The court intimates that the object of matrimony is not procreation, but merely "marital intercourse," and if the woman resolves the latter shall not be had, she entraps the man into a seeming and not a real contract. This, however, is not true, as a fact, but only if after a ceremony of marriage she persists in the resolution formed at the time of the ceremony. She is given, so to speak, a locus poenitentiae. In almost all, if not all, contracts they are null or not at the time they are seemingly entered into, if parties to them are not laboring under contractual incapacity. If in Massachusetts the fact of refusal to perform marital duties gives no ground for divorce, it seems it ought not to be true, that intent at the time of marriage not to perform cught to be ground for annulment.

conduct negligence or not negligence. If no negligence is shown, the question of proximity need not be considered; if there is proof of negligence, further inquiry should be devoted strictly and solely to the question of proximity, naturalness and probability no longer having any place in the discussion of the case.

Perhaps with desirable results in the particular case, but with bad results in establishing precedent, some courts, when there has seemed to be no negligence, though there was some slight evidence to uphold a verdict of negligence, have, in their eagerness to do justice in the individual case, set aside the verdict on the ground that no proximity of cause and result was shown, making proximity dependent upon "naturalness and probability." Such a case is Hoag v. Lake Shore, etc., R. Co. In this case, a recent landslide had thrown defendant's oil train from the track. The oil tanks burst, and the oil became ignited and flowed down into a creek, which had been augmented by recent rains. The burning oil flowed down the creek and ignited and destroyed plaintiff's buildings, which were three or four hundred feet from the track. The report of the case seems to make it extremely doubtful whether the defendant company was guilty of any negligence what

ever.

The court expressly refrained from determining the question of negligence and placed its decision for the defendant on the ground that, even if defendant was

(5) Cited in footnote No. 2. For a similar case, see Burlington & Missouri River R. Co. v. Budin, also cited in footnote No. 2. It seems very doubtful whether there was any negligence in the Burlington case. See also Western Ry. Co. v. Mutch, 97 Ala. 194, 11 So. 894, 21 L. R. A. 316, 38 Am. St. Rep. 179; in which case plaintiff's intestate, a small boy, was killed while attempting to board a freight car of defendant, which was running at a greater rate of speed than permitted by ordinance. The court held that the negligence of the company was not the proximate cause of the injury. It might just as well have been said, as a matter of law, that there was no negligence, as no violation of a duty of defendant toward plaintiff's intestate was shown. "Negligence is a breach of duty. Where there is no duty or no breach, there is no negligence." Kreigh v. Westinghouse, etc., Co., cited in footnote No. 2.

negligent, the damage to plaintiff was too remote to warrant a recovery. The matters of anticipation and probability were given weight here by the court, as affecting proximity, and not as affecting the primary fact of negligence. The court says: "It would be unreasonable to hold that the engineer of the train could have anticipated the burning of the plaintiff's property as a consequence likely to flow from his negligence in not looking out and seeing the landslide. The obstruction itself was unexpected. An engine had passed along within ten minutes, with a clear track. But the obstruction was there, and the tender struck it. The probable consequence of the. collision, such as the engineer would have a right to expect, would be the throwing of the engine and a portion of the train off the track. Was he to anticipate the bursting of the oil-tanks; the oil taking fire; the burning oil running into and being carried down the stream; and the sudden rising of the waters of the stream by means of which, in part at least, the burning oil set fire to the plaintiff's buildings? This would be a severe rule to apply, and might have made the defendants responsible for the destruction of property for miles down Oil Creek." The court here seems to consider it essential to plaintiff's recovery that the engineer should have foreseen practically the exact results that ensued. Probably, though feeling that, as a matter of fact, there was no negligence in the case, the court did not wish to find upon that point, and so resorted to an extreme interpretation of proximate result, in order to save an innocent and unfortunate defendant."

(6) It is interesting to note the remark of the court to the effect that a different rule in this case "might have made the defendants liable for the destruction of property for miles down Oil Creek." Even if such were the obvious result of a holding adverse to the company, it would not constitute a valid argument against such a holding. Distance in space, and lapse of time, of themselves, without any independent, efficient, intervening cause, cannot properly be said so to break causal connection as to cut off a right of action. "A result may be, physically speaking, secondary and consequential, and yet in legal contemplation be