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on in trespass, with causes of action which decedent surviving would have been obliged to declare on in case.129 There is an example of misjoinder of causes of action in a complaint by the husband and wife which alleges injuries to have been inflicted on the wife, and that by reason thereof both plaintiffs have been damaged; as the husband, although properly joined as co-plaintiff, cannot always recover for personal injuries sustained by his wife. 130 In an action by an employé for injuries caused by his employer's negligence, a complaint stating that the injury was "caused by the negligence of the defendant in failing to provide good and safe brakes," etc., followed by another averment, "and by the defendant negligently and carelessly omitting to keep its brakes on said train in good repair, and knowingly allowing the same to remain out of repair,"-has been held to state several grounds of action distributively, and the word "knowingly," to qualify only the second clause.131

§ 7468. Effect of Joinder in Caption but Not in Body of Complaint. -A complaint containing the names of both husband and wife as plaintiffs in its caption, but stating a cause of action for negligence in favor of the wife only without reference in its body to the husband, is not bad on demurrer because of its failure to state a cause of action in favor of both plaintiffs. The joinder of the husband in the caption in such a case will be regarded as surplusage. 132

§ 7469. Pleading Statutes.-The general rule with reference to pleading statutes is, that general statutes may be pleaded in general terms, stating their legal effect upon the facts in controversy; but special acts should be specially pleaded by the title and date of approval, which will be sufficient to bring to the judicial notice of the court the entire act with its provisions.133 It is not necessary for the

129 Buckalew v. Tennessee Coal &c. Co., 112 Ala. 146; s. c. 20 South. Rep. 606.

have been caused by failure of a railroad company to give the signal on approaching a crossing, need not

130 Mosier v. Beale, 43 Fed. Rep. allege that such failure was in vio358.

131 Louisville &c. R. Co. v. Coulton, 86 Ala. 129; s. c. 5 South. Rep. 458. 132 Mississinewa Min. Co. v. Patton, 129 Ind. 472; s. c. 28 N. E. Rep. 1113.

133 Shartle V. Minneapolis, 17 Minn. 308; Goshen &c. Turnpike Co. v. Sears, 7 Conn. 86. See also, Voelker v. Chicago &c. R. Co., 116 Fed. Rep. 867; East Tennessee &c. R. Co. v. Pratt, 85 Tenn. 9; s. c. 1 S. W. Rep. 618. Plaintiff, in an action for personal injuries alleged to

lation of the law, as the statute is a general one and not required to be pleaded: Illinois &c. R. Co. v. Mizell, 100 Ky. 235; s. c. 18 Ky. L. Rep. 738; 38 S. W. Rep. 5; 6 Am. & Eng. R. Cas. (N. S.) 337. A complaint for the killing of stock because of the absence of the cattleguard required by a statute must aver facts showing that the state of case contemplated by the statute existed: McGhee v. Gaines, 98 Ky. 182; s. c. 17 Ky. L. Rep. 748; 32 S. W. Rep. 602.

pleader to refer to a statute that is but declaratory of the common law, as, for instance, a statute requiring railroad companies to keep a lookout on engines, and when any one appears on the track, to use every possible means to prevent an accident.134 A statute of another State must be pleaded by setting it out and not by stating its effect.135 A complaint against a master for the death of a servant through the negligence of a co-employé in a sister State is demurrable unless it alleges the existence of a wrongful-death statute in such State similar to the statute in force in the State where the action is brought.138 It has been held in Pennsylvania that it is not necessary, in an action against a municipal corporation for negligence in failing to repair a street, to recite in the declaration the act of Assembly which binds the corporation to keep its streets in repair, nor to aver that the corporation had funds to do so.137 And in Indiana it has been held that, in an action by a town of that State, it will be presumed, nothing appearing to the contrary, that the plaintiff has been organized under the general law for the incorporation of towns.138 And in Iowa the description of the defendant as a city, in the petition, was considered a sufficient averment that it was a municipal corporation.139 If the statute of limitations is relied upon by the defendant, it should be pleaded by him, unless the petition itself shows that the action is barred by time, and that the plaintiff is not within any of the exceptions contained in the statute. It is not necessary that the plaintiff should allege in the petition that the action has been brought in due time, although the statute under which the action is brought contains. the limitation. 140

§ 7470. Pleading Ordinances.-An ordinance must be pleaded to render it available on the question of defendant's negligence;111 and this will be the case, although it is not claimed that its violation is negligence per se.142 The pleader is not required to set out literally the ordinance relied upon, but must at least state its substance;143

124 East Tennessee &c. R. Co. v. Pratt, 85 Tenn. 9.

Lowry v. Moore, 16 Wash. 776; s. c. 48 Pac. Rep. 238; Stockham v. Simmons, 67 Ill. App. 83.

Kahl v. Memphis &c. R. Co., 95 Ala. 337; s. c. 10 South. Rep. 661. Erie v. Schwingle, 22 Pa. St. 384.

139 Centerville v. Woods, 57 Ind. 192.

159 Stier v. Oskaloosa, 41 Iowa 353. 140 Chiles v. Drake, 2 Metc. (Ky.) 146.

141 Lake Erie &c. R. Co. v. Mikesell, 23 Ind. App. 395; s. c. 55 N. E. Rep. 488; Gardiner v. Detroit St. R. Co., 99 Mich. 182; s. c. 58 N. W. Rep. 49; Nutter v. Chicago &c. R. Co., 22 Mo. App. 328; s. c. 5 West. Rep. 72.

142 Richter v. Harper, 95 Mich. 221; s. c. 54 N. W. Rep. 768.

143 Illinois &c. R. Co. v. Ashline, 171 Ill. 313; s. c. 49 N. E. Rep. 521; 9 Am. & Eng. R. Cas. (N. S.) 702; aff'g s. c. 70 Ill. App. 613; Lake Erie &c. R. Co. v. Hancock, 15 Ind. App.

and an averment that the act is contrary to a city ordinance is not sufficient. 144 In some jurisdictions an ordinance is regarded as sufficiently pleaded by reference to the title, subdivision or section and chapter of the revised and codified ordinances of the city, without setting out the ordinance.145 But the complaint should positively aver that the ordinance was in force at the time of the occurrence of the alleged negligent act.148 A mistake in the complaint as to the date of the approval of the ordinance relied upon is not fatal where the complaint further describes the ordinance by its title and number and alleges that it was in full force and effect at the time of its alleged violation.147

§ 7471. Averring One Kind of Negligence and Recovering on Another-Variance. In actions for damages for negligence the allegata and probata must correspond.148 If plaintiff avers negligence in general terms without specifying wherein it consists, his declaration, petition, or complaint will be good on general demurrer, though under some systems it will be subject to a motion to make it more definite and certain.149 But where he avers that the negligence of defendant consisted in one thing and then proves negligence consisting in something else, he ought not be allowed to recover. 150 "It would

104; s. c. 43 N. E. Rep. 659; Rockford City R. Co. v. Matthews, 50 Ill. App. 267.

144 Jackson v. Castle, 82 Me. 579; s. c. 20 Atl. Rep. 237. In an action to recover for personal injuries received while crossing a street which a railroad company had obstructed by cars, an allegation that an ordinance of the city prohibited railroad companies from allowing cars to stand in streets longer than five minutes at a time does not sufficiently set forth the ordinance: Southern R. Co. v. Prather, 118 Ala. 588; s. c. 24 South. Rep. 836.

145 Philipsburg v. Weinstein, 21 Mont. 146; s. c. 53 Pac. Rep. 272.

146 Lake Erie &c. R. Co. v. Mikesell, 23 Ind. App. 395; s. c. 55 N. E. Rep. 488; Hazard Powder Co. v. Volger, 3 Wyo. 189; s. c. 18 Pac. Rep. 636.

147 Missouri &c. R. Co. v. Chick, 6 Kan. App. 480; s. c. 50 Pac. Rep. 605.

148 Schneider v. Missouri &c. R. Co., 75 Mo. 295; Gurley v. Missouri &c. R. Co., 93 Mo. 445; Harty v. St. Louis &c. R. Co., 95 Mo. 368; Conway v. Hannibal &c. R. Co., 24 Mo. App. 235.

149 See Baltimore &c. R. Co. v. Cumberland, 12 App. (D. C.) 598; United States v. Peachy, 36 Fed. Rep. 160; Cincinnati &c. Co. V. Claire, 6 Ind. App. 390; s. c. 33 N. E. Rep. 918; Hindman v. Timme, 8 Ind. App. 416; s. c. 35 N. E. Rep. 1046; Hammond v. Schiff, 100 N. C. 161; s. c. 6 S. E. Rep. 753; St. Louis &c. R. Co. v. Taylor, 5 Tex. Civ. App. 668; s. c. 24 S. W. Rep. 975; Uren v. Golden Tunnel Min. Co., 24 Wash. 261; s. c. 64 Pac. Rep. 174. A mere accident or circumstances tending to show negligence may be proved without any specific allegation thereof, under a general allegation of negligence: Fisher v. Golladay, 38 Mo. App. 531; International &c. R. Co. v. Dyer, 76 Tex. 156; s. c. 13 S. W. Rep. 377; Cunningham v. Union &c. R. Co., 4 Utah 206; s. c. 7 Pac. Rep. 795.

150 Conrad v. Gray, 109 Ala. 130; s. c. 19 South. Rep. 398; Rogers v. Louisville &c. R. Co., 88 Fed. Rep. 462; Wright v. Wilmington City R. Co., 2 Marv. (Del.) 141; s. c. 42 Atl. Rep. 440; Brunswick Light &c. Co. v. Gale, 91 Ga. 813; s. c. 18 S. E. Rep. 11; Georgia Brewing Assn. v. Henderson, 117 Ga. 480; s. c. 43 S.

be folly to require the plaintiff to state his cause of action and the defendant disclose his grounds of defense if in the trial either or both might abandon such grounds and recover upon others which are substantially different from those alleged."151 For this reason proof of

E. Rep. 698; Chicago &c. R. Co. v. Bell, 112 Ill. 360; Chicago &c. R. Co. v. Driscoll, 176 Ill. 330; s. c. 52 N. E. Rep. 921; 12 Am. & Eng. R. Cas. (N. S.) 644; 4 Chic. L. J. Wkly. 130; rev'g s. c. 70 Ill. App. 91; Chicago &c. R. Co. v. Hawk, 36 Ill. App. 327; Chicago &c. R. Co. v. Hawk, 42 Ill. App. 322; Chicago &c. R. Co. v. Vipond, 101 Ill. App. 607; Chicago &c. R. Co. v. Wells, 42 Ill. App. 26; Straight v. Odell, 13 Ill. App. 232; Cincinnati &c. R. Co. v. McLain, 148 Ind. 188; s. c. 44 N. E. Rep. 306; Indianapolis &c. R. Co. v. Neubacher, 16 Ind. App. 21; s. c. 43 N. E. Rep. 576; 44 N. E. Rep. 669; Fitzgibbon v. Chicago &c. R. Co., 108 Iowa 614; Humpton v. Unterkircher, 97 Iowa 509; s. c. 66 N. W. Rep. 776; Atchison &c. R. Co. V. Owens, 6 Kan, App. 515; s. c. 50 Pac. Rep. 962; Brown v. Chicago &c. R. Co., 59 Kan. 70; s. c. 52 Pac. Rep. 65; 11 Am. & Eng. R. Cas. (N. S.) 408; Telle V. Leavenworth Rapid Transit R. Co., 50 Kan. 455; s. c. 31 Pac. Rep. 1076; Louisville &c. R. Co. v. Bell, 100 Ky. 203; Louisville &c. R. Co. v. Victory (Ky.), 47 S. W. Rep. 440 (no off. rep.); McCain v. Louisville &c. R. Co., 13 Ky. L. Rep. 809; s. c. 18 S. W. Rep. 537 (no off. rep.); Wilkinson v. Detroit Steel &c. Works, 73 Mich. 405; S. c. 41 N. W. Rep. 490; Chitty v. St. Louis &c. R. Co., 148 Mo. 64; Ischer v. St. Louis &c. R. Co., 95 Mo. 261; S. c. 8 S. W. Rep. 367; 14 West. Rep. 726; Price v. St. Louis &c. R. Co., 72 Mo. 414; Ravencraft v. Missouri R. Co., 27 Mo. App. 617; Pierce v. Great Falls &c. R. Co., 22 Mont. 334; Elliot v. Carter White-Lead Co., 53 Neb. 458; s. c. 73 N. W. Rep. 948; Koehler v. New York Steam Co., 71 App. Div. (N. Y.) 222; s. c. 75 N. Y. Supp. 597; Bruswitz v. Netherlands American Steam Nav. Co., 64 Hun (N. Y.) 262; s. c. 19 N. Y. Supp. 75; 46 N. Y. St. Rep. 623; Woodward v. Oregon R. &c. Co., 18 Or, 289; s. c. 22 Pac. Rep. 1076; Jenkinson v. McCarthy, 45 S. C. 278; s. c. 22 S. E. Rep. 883; Missouri &c. R. Co. v. Hennessey, 75 Tex. 155; s. c. 12 S. W. Rep. 608; 42 Am.

& Eng. R. Cas. 225. Testimony that engineers are controlled altogether by signals in moving their engines is inadmissible where the petition does not allege that the accident resulting in death, for which suit is brought, occurred through the failure or inability of the engineer to see the signals, but its admission is harmless error, as it does not suggest that the injury was caused by the omission to give them: Missouri &c. R. Co. v. Lamothe, 76 Tex. 219; s. c. 13 S. W. Rep. 194. The variance between a petition averring that a calf alleged to have been killed by negligence was an Ayrshire calf, and proof that it was three-fourths Ayrshire and onefourth Durham, is immaterial: St. Louis &c. R. Co. v. Pickens (Tex. App.), 14 S. W. Rep. 1071.

151 Boardman v. Griffin, 52 Ind. 101. Proof that a train was moving backwards under orders from the conductor constitutes a fatal variance from a declaration alleging the death of an employé owing to defects in the engine, which permitted clouds of steam to arise and prevented the engineer from seeing the signals to stop, given after the cars had come to a standstill and ⚫ begun to move back on account of the down grade, since in the latter case the engineer and employés on the train would have known that the train was moving without orders and that it was their duty to stop it: Pennington v. Detroit &c. R. Co., 90 Mich. 505; s. c. 51 N. W. Rep. 634. Where the negligence alleged, in an action by an employé for personal injuries, is that boards were "uneven, unsound, rotten, unsafe, and defective," he cannot recover upon the theory that sound boards were not sufficiently strong, or that the ground where they were used was soft, so that a loaded truck, when being wheeled over the boards, depressed the ends, causing the board to fall on him, as his recovery must be on negligence alleged: Shanks V. United States Heater Co., 125 Mich. 346; s. c. 84 N. W. Rep. 283; 7 Detroit Leg. N.

negligent or wrongful action will not sustain an averment of negligent nonaction.152 So, where a declaration charges that an injury is the result of the concurrent negligence of two defendants, it must be proved as charged; and there can be no recovery unless the jury finds both of the defendants guilty.153 As a general rule, the variance of the facts in evidence from the statements in a pleading must be material, and likely to mislead the opposite party or the jury, to prevent the introduction of the evidence.154 Thus, in an action for personal injuries consequent upon frightening the plaintiff's horse, it was held that proof that the plaintiff was riding in a sulky, and that his horse became frightened, and the sulky was overturned and he was thrown from it upon the ground, was no legal variance from the allegation of the declaration that the plaintiff was riding in a buggy, and that his horse ran and fell, and by that means he was thrown out, the details thus alleged being wholly unimportant in their relation to the personal injury received by the plaintiff.155 Again, in an action against a bridge corporation for personal injuries, the declaration alleged that the plaintiff sustained the injury in consequence of a defect in the railing of the bridge. It appeared from the evidence that, in repairing the bridge, a portion of the foot-way and railing was removed, in order to allow the travel to pass from the bridge to certain land by the side of the bridge, provided by the corporation temporarily as the common travelling-path; that this land was enclosed by a fence, through an aperture in which the plaintiff passed and fell overboard. This was held not to be a variance.156 The same ruling obtained where the declaration alleged the insuf

530. Evidence that one of the two cars between which a railroad employé was injured was taken from another road and was more dangerous to handle than those of the company is properly excluded, where the injury is alleged to have been caused by a defect in the roadbed: Clark v. Misouri &c. R. Co., 48 Kan. 654; s. c. 29 Pac. Rep. 1138.

152 Cohen v. Chicago &c. R. Co., 104 Ill. App. 314.

153 St. Louis B. & S. Co. v. Hopkins, 100 Ill. App. 567.

154 Stearns v. Reidy, 135 Ill. 119; s. c. 25 N. E. Rep. 720; aff'g s. c. 33 Ill. App. 246; Barnes v. Newton, 46 Iowa 567; Holt v. Penobscot, 56 Me. 15; Bassett v. St. Joseph, 53 Mo. 290; Holmes v. Fond du Lac, 42 Wis. 283; Matthews v. Baraboo, 39 Wis. 674. The complaint in an action by a deck hand on a steamboat

against the master for personal injuries alleged that the deck hands were ordered by the mate to take in the gang plank, and that plaintiff was injured in doing so, by the negligence of the mate. The evidence showed that the deck hands were called to such work by a whistle sounded by the captain, and not by the mate's order. It was held, under 2 Ballinger's Ann. Wash. Codes & St., § 4949, providing that no variance between the pleading and proof shall be deemed material unless it actually misleads the opposite party to his prejudice, that such variance was immaterial: Nelson v. Willey S. S. Co., 26 Wash. 548; s. c. 67 Pac. Rep. 287.

155 House v. Metcalf, 27 Conn. 631. 156 Worster v. Canal Bridge, 16 Pick. (Mass.) 541.

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