Supreme Court of North Carolina. Hilda Calahan GILLISPIE v.

GOODYEAR SERVICE STORES, a Division of the Goodyear Tire & Rubber Company, and the Goodyear Tire & Rubber Company, a Page | 1 Corporation, and O. J. Hartsell, Robert E. Harden, Melvin Wrenn, and Arthur Jones. No. 743 Jan. 11, 1963 The defendants demurred to the complaint. The Superior Court, Alamance County, Rudolph I. Mintz, J., rendered judgments sustaining the demurrers, and the plaintiff appealed. The Supreme Court, Bobbitt, J., held that complaint alleging that defendants, without cause or just excuse and maliciously, trespassed upon premises occupied by plaintiff as a residence, assaulted her and caused her to be seized and confined as a prisoner was insufficient to state cause of action in that complaint did not disclose what occurred, when it occurred, where it occurred, who did what, the relationships between defendants and plaintiff or of defendants inter se, or any other factual data that might identify occasion or describe circumstances of alleged wrongful conduct of defendants. Affirmed. West Headnotes [1] KeyCite Citing References for this Headnote 302 Pleading 302V Demurrer or Exception 302k218 Hearing and Determination on Demurrer 302k218(4) k. Dismissal or Nonsuit. Most Cited Cases Where there is misjoinder of parties and causes of action, judgment sustaining demurrer to complaint on that ground necessitates dismissal of action. [2] KeyCite Citing References for this Headnote 13 Action 13III Joinder, Splitting, Consolidation, and Severance 13k43 Joinder of Causes of Action Under Codes and Practice Acts 13k50 Parties and Interests Involved 13k50(4) Joint or Common Liability of Defendants 13k50(6) k. Liabilities for Torts. Most Cited Cases Complaint alleging that defendants, without cause or just excuse and maliciously, trespassed upon premises occupied by plaintiff as a residence, assaulted her and caused her to be seized and confined as a prisoner, disclosed no misjoinder of parties and causes of action.

[3] KeyCite Citing References for this Headnote 168 False Imprisonment 168I Civil Liability 168I(B) Actions 168k20 Pleading 168k20(1) k. Declaration, Complaint, or Petition. Most Cited Cases Complaint alleging that defendants, without cause or just excuse and maliciously, trespassed upon premises occupied by plaintiff as a residence, assaulted her and caused her to be seized and confined as a prisoner, was insufficient to state cause of action in that complaint did not disclose what occurred, when it occurred, where it occurred, who did what, the relationships between defendants and plaintiff or of defendants inter se, or any other factual data that might identify occasion or describe circumstances of alleged wrongful conduct of defendants. G.S. 1-122, 1-127(6). [4] KeyCite Citing References for this Headnote 302 Pleading 302II Declaration, Complaint, Petition, or Statement 302k48 k. Statement of Cause of Action in General. Most Cited Cases The cause of action consists of the facts alleged; the 1963. complaint must allege the material, essential and ultimate facts upon which plaintiff's right of action is based. G.S. 1-122. [5] KeyCite Citing References for this Headnote 302 Pleading 302V Demurrer or Exception 302k214 Admissions by Demurrer 302k214(1) k. In General. Most Cited Cases 302 Pleading KeyCite Citing References for this Headnote 302V Demurrer or Exception 302k214 Admissions by Demurrer 302k214(5) k. Conclusions of Law and Construction of Written Instruments. Most Cited Cases The facts alleged, but not pleader's legal conclusions, are deemed admitted when sufficiency of complaint is tested by demurrer. G.S. 1-127(6). [6] KeyCite Citing References for this Headnote 302 Pleading 302II Declaration, Complaint, Petition, or Statement 302k48 k. Statement of Cause of Action in General. Most Cited Cases

Janz N. Serrano A complaint must be fatally defective before it will be rejected as insufficient, and if any portion of it or to any extent it presents facts sufficient to constitute a cause of action the pleading will stand. G.S. 1-127(6). [7] KeyCite Citing References for this Headnote 302 Pleading 302I Form and Allegations in General 302k8 Matters of Fact or Conclusions 302k8(5) k. Allegations or Denials of Indebtedness. Most Cited Cases 302 Pleading KeyCite Citing References for this Headnote 302V Demurrer or Exception 302k193 Grounds for Demurrer to Declaration, Complaint, Petition, or Statement 302k193(5) k. Insufficiency of Facts to Constitute Cause of Action. Most Cited Cases A complaint alleging that defendant is indebted to plaintiff in a certain amount and that such debt is due, but not alleging in what manner or for what cause defendant became indebted to plaintiff, is demurrable for failure to state facts sufficient to constitute cause of action. [8] KeyCite Citing References for this Headnote 302 Pleading 302XVII Issues, Proof, and Variance 302k386 Variance Between Allegations and Proof 302k387 k. Nature and Effect in General. Most Cited Cases A plaintiff must make out his case secundum allegata; there can be no recovery except on the case made by his pleadings. [9] KeyCite Citing References for this Headnote 302 Pleading 302I Form and Allegations in General 302k34 Construction in General 302k34(1) k. In General. Most Cited Cases 302 Pleading KeyCite Citing References for this Headnote 302V Demurrer or Exception 302k218 Hearing and Determination on Demurrer 302k218(1) k. In General. Most Cited Cases On demurrers, complaint was considered in light most favorable to plaintiff. **763 *487 The hearing below was on demurrers to the complaint.

Janz N. Serrano Plaintiff alleges she and each of the four individual defendants are citizens and residents of Alamance County, North Carolina; that defendant Goodyear Tire & Rubber Company is a corporation doing business in North Carolina and having a place of business and store in Burlington, North Carolina; and that Goodyear Service Stores is a division of defendant Goodyear Tire & Rubber Company. Page | 2 The remaining allegations of the complaint and the prayer for relief are as follows: 4. On or about May 5, 1959, and May 6, 1959, the defendants, without cause or just excuse and maliciously came upon and trespassed upon the premises occupied by the plaintiff as a residence, and by the use of harsh and threatening language and physical force directed against the plaintiff assaulted the plaintiff and placed her in great fear, and humiliated and embarrassed her by subjecting her to public scorn and ridicule, and caused her to be seized and exhibited to the public as a prisoner, and to be confined in a public jail, all to her great humiliation, embarrassment and harm. *488 5. By reason of the defendants' malicious and intentional assault against and humiliation of the plaintiff, the plaintiff was and has been damaged and injured in the amount of $25,000.00. 6. The acts of the defendants as aforesaid were deliberate, malicious, **764 and with the deliberate intention of harming the plaintiff, and the plaintiff is entitled to recover her actual damages as well as punitive damages from the defendants and each of them. THEREFORE, the plaintiff prays that she have and recover of the defendants the sum of $25,000.00 as damages and $10,000.00 in addition thereto as punitive damages, and that she have such other and further relief as may be just and proper. Separate demurrers were filed by: (1) defendants Goodyear Tire & Rubber Company, Goodyear Service Stores, a division of Goodyear Tire & Rubber Company, and O. J. Hartsell; (2) defendant Robert E. Harden; (3) defendant Melvin Wrenn; (4) defendant Arthur Jones. Although different in phraseology, each demurrer specifies two grounds of objection to the complaint, namely, (1) that the complaint does not state facts sufficient to constitute a cause of action, and (2) that there is a misjoinder of parties and causes of action. The court entered a separate judgment with reference to each of said four demurrers. In each judgment, after a recital of the said grounds on which the demurrer was based and a recital that the court was of the opinion that said demurrer should be sustained, it was ORDERED, ADJUDGED and DECREED that said demurrer be and the same is hereby sustained and the court, in its discretion, grants unto said plaintiff thirty (30) days within which to file amended complaint. Plaintiff excepted to each of said four judgments and appealed. Robert S. Cahoon, Greensboro, for plaintiff appellant. McLendon, Brim, Holderness & Brooks, Greensboro, for defendant appellees Goodyear Service Stores, Goodyear Tire & Rubber Company and O. J. Hartsell. Allen & Allen, Burlington, for defendant appellees Robert E. Harden and Melvin Wrenn. Spencer B. Ennis, Long, Ridge, Harris & Walker and Herbert F. Pierce, Graham, for defendant appellee Arthur Jones. BOBBITT, Justice. [1] Where there is a misjoinder of parties and causes of action, a judgment sustaining a demurrer to the complaint on that ground necessitates a dismissal of the action. Tart v. Byrne, 243 N.C. 409, 90 S.E.2d 692; Snotherly v. Jenrette, 232 N.C. 605, 61 S.E.2d 708, and cases cited. [2] *489 The judgments now under consideration do not specify the ground on which the demurrers were sustained. However, the fact the court did not dismiss the action but granted plaintiff leave to file an amended complaint indicates the court sustained the demurrers on the ground the complaint did not state facts sufficient to constitute a cause of action. Be that as it may, the allegations of the complaint do not disclose a misjoinder of parties and causes of action. If it be assumed that plaintiff has alleged more than one cause of action, all defendants, under plaintiff's allegations, are parties to all such causes of action. [3] Does the complaint state facts sufficient to constitute any cause of action? [4] A complaint must contain (a) plain and concise statement of the facts constituting a cause of action * * *. G.S. s 1-122. The cardinal requirement of this statute * * * is that the facts constituting a cause of action, rather than the conclusions of the pleader, must be set out in the complaint, so as to disclose the issuable facts determinative of the plaintiff's right to relief. Shives v. Sample, 238.N.C. 724, 79 S.E.2d 193. The cause of action consists of the facts alleged. Lassiter v. R. R., 136 N.C. 89, 48 S.E. 642; Skipper v. Cheatham, 249 N.C. 706, 709, 107 S.E.2d 625; Wyatt v. Equipment Co., 253 N.C. 355, 361, 117 S.E.2d 21. The statutory requirement is that a complaint must allege the material, essential and ultimate facts upon **765 which plaintiff's right of action is based. Chason v. Marley, 223 N.C. 738, 28 S.E.2d 223, and cases cited. The law is presumed to be known, but the facts to which the law is to be applied are not known until properly presented by the pleading and established by evidence. McIntosh, North Carolina Practice and Procedure, s 379. [5] [6] The facts alleged, but not the pleader's legal conclusions, are deemed admitted when the sufficiency of the complaint is tested by demurrer. Stamey v. Membership Corp., 247 N.C. 640, 645, 101 S.E.2d 814. Where the complaint merely alleges conclusions and not facts, it fails to state a cause of action and is demurrable. G.S. s 1-127(6); Broadway v. Asheboro, 250 N.C. 232, 233, 108 S.E.2d 441, 443. However, it is well settled that a complaint must be fatally defective before it will be rejected as insufficient, and if in any portion of it or to any extent it presents facts sufficient to constitute a cause of action the pleading will stand. (Our italics) Snotherly v. Jenrette, supra, 232 N.C. p. 608, 61 S.E.2d p. 711; Buchanan v. Smawley, 246 N.C. 592, 595, 99 S.E.2d 787. [7] When a complaint alleges defendant is indebted to plaintiff in a certain amount and such debt is due, but does not allege in what manner or for what cause defendant became indebted to plaintiff, it is demurrable for failure to state facts sufficient to constitute a cause of action. Moore v. Hobbs, 79 N.C. 535; Griggs v. Griggs, 213 N.C. 624, 627, 197 S.E. 165. *490 The liability for tort grows out of the violation of some legal duty by the defendant, not arising out of contract, and the complaint should state facts sufficient to show such legal duty and its violation, resulting in injury to the plaintiff. What these facts are must depend upon the elements which go to make up the particular tort complained of, under the substantive law. McIntosh, North Carolina Practice and Procedure, s 388, where, with reference to various tort actions, the requirement that the facts be alleged is discussed. In an action or defense based upon negligence, it is not sufficient to allege the mere happening of an event of an injurious nature and call it negligence on the part of the party sought to be charged. This is necessarily so because negligence is not a fact in itself, but is the legal result of certain facts. Therefore, the facts which constitute the negligence charged and also the facts which establish such negligence as the proximate cause, or as one of the proximate causes, of the injury must be alleged. Shives v. Sample, supra; Stamey v. Membership Corp., supra; Skipper v. Cheatham, supra; Wyatt v. Equipment Co., supra; Myrtle Apartments v. Casualty Co., 258 N.C. 49, 127 S.E.2d 759. In each of these cases, the complaint was held demurrable for failure to state facts sufficient to constitute a cause of action. In Letterman v. Mica Co., 249 N.C. 769, 107 S.E.2d 753, a demurrer was sustained on the ground the facts alleged were insufficient to support the plaintiffs' allegation that the injury they sustained was proximately caused by wrongful conduct of the defendants. As stated by Barnhill, J. (later C.J.), in Parker v. White, 237 N.C. 607, 610, 75 S.E.2d 615, 617: The competency of evidence, the form

Janz N. Serrano of the issues, and the charge of the court are all controlled in very large measure by the nature of the cause of action alleged by plaintiff. Hence, the trial judge, as well as the defendant, must know the exact right plaintiff seeks to assert or the legal wrong for which he seeks redress before there can be any intelligent trial under the rules of procedure which govern our system of jurisprudence. Page | 3 Plaintiff alleges, in a single sentence, that defendant, without cause or just excuse and maliciously, trespassed upon premises occupied by her as a residence, assaulted her and caused her to be seized and confined**766 as a prisoner. The complaint states no facts upon which these legal conclusions may be predicated. Plaintiff's allegations do not disclose what occurred, when it occurred, where it occurred, who did what, the relationships between defendants and plaintiff or of defendants inter se, or any other factual data that might identify the occasion or describe the circumstances of the alleged wrongful conduct of defendants. [8] [9] A plaintiff must make out his case secundum allegata. Lucas v. White, 248 N.C. 38, 42, 102 S.E.2d 387. There can be no recovery except*491 on the case made by his pleadings. Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786. Here, there is no factual basis to which the court could apply the law. When considered in the light most favorable to plaintiff, this complaint, in our opinion, falls short of minimum requirements. In Stivers v. Baker, 10 Ky. 523, 9 S.W. 491, it was held that a petition alleging the defendant unlawfully assaulted the plaintiff, thereby putting him in great fear, but not stating how the assault was made, stated a mere conclusion of law and was demurrable as not stating facts constituting a cause of action as required by the Kentucky statute. The court, in opinion by Holt, J., points out that a statement of the facts constituting a cause of action is not only necessary to enable the opposite party to form an issue, and to inform him of what his adversary intends to prove, but to enable the court to declare the law upon the facts stated. It cannot do so if a mere legal conclusion is stated. The term 'assault has a legal meaning; as much so as the word 'trespass.'' In Shapiro v. Michelson, 19 Tex. Civ.App. 615, 47 S.W. 746, the Court of Civil Appeals of Texas, in opinion by Fisher, C. J., said: The use of the expression 'assaulted is not the averment of a fact, but is simply a statement which expresses the conclusion of the pleader. The judgments sustaining the demurrers are affirmed on the ground the complaint does not state facts sufficient to constitute any cause of action. It would seem appropriate that plaintiff, in accordance with leave granted in the judgments from which she appealed, now file an amended complaint and therein allege the facts upon whch she bases her right to recover. Affirmed. N.C. 1963 GILLISPIE V. GOODYEAR SERVICE STORES 258 N.C. 487, 128 S.E.2d 762 END OF DOCUMENT

Appellate Court of Illinois, Third District. Lucy Alice McCORMICK, Individually, and as surviving widow and as Administrator of the Estate of Lewis Harold McCormick, deceased, Plaintiffs-Appellees, v. Page | 4 Lorence J. KOPMANN, Anna H. Huls, John A. Huls and Mary Huls, Defendants, Lorence J. Kopmann, Defendant-Appellant. Gen. No. 10235. Oct. 22, 1959. Action by widow against truck driver under Wrongful Death Act and against proprietors of taverns under Dram Shop Act for death of her husband as result of a collision between automobile he was operating and truck. From adverse judgment of the Circuit Court, Champaign County, B. E. Morgan, J., the truck driver appealed and the widow cross-appealed. The Appellate Court, Reynolds, P. J., held that count of complaint under Wrongful Death Act charging that truck driver was negligent in operation of truck and that decedent was free of contributory negligence in operation of automobile and count brought in the alternative under Dram Shop Act charging proprietors with sale to decedent of alcoholic beverages which rendered him intoxicated and caused collision, were mutually exclusive, but widow of decedent, as administratrix and individually, could plead the counts together when she was in doubt as to what the facts were and what the evidence would show, and in absence of a severance, widow had right to go to trial on both counts and to adduce all the proof she had under both counts. Judgment affirmed.

Cited Cases (Formerly 272k88) Voluntary intoxication will not excuse a person for the failure to use the degree of care reasonably expected of a sober person. [3] KeyCite Citing References for this Headnote 117 Death 117III Actions for Causing Death 117III(H) Damages or Compensation 117k80 Elements of Compensation 117k86 Loss of Prospective Pecuniary Benefits 117k86(2) k. Loss of Support and Education and Moral Training. Most Cited Cases Compensation awarded under Wrongful Death Act includes reparation for loss of support compensable under the Dram Shop Act. S.H.A. ch. 43, 94 et seq.; ch. 70, 1, 2. [4] KeyCite Citing References for this Headnote 302 Pleading 302II Declaration, Complaint, Petition, or Statement 302k53 Separate Counts on Same Cause of Action 302k53(2) k. Particular Causes of Action. Most Cited Cases Count of complaint against truck driver under Wrongful Death Act charging that truck driver was negligent in operation of truck and that decedent was free of contributory negligence in operation of automobile and count brought in the alternative against proprietors of taverns under Dram Shop Act charging proprietors with sale to decedent of alcoholic beverages which rendered him intoxicated and caused collision, were mutually exclusive, but widow of decedent, as administratrix and individually, could plead the counts together when she was in doubt as to what facts were and what evidence would show, and in absence of a severance widow had right to go to trial on both counts and to adduce all the proof she had under both counts. S.H.A. ch. 43, 94 et seq.; ch. 70, 1, 2; ch. 110, 24, and (3), 34, 43(2), 44(2), 51. [5] KeyCite Citing References for this Headnote 302 Pleading 302XVI Motions 302k351 Striking Out Pleading or Defense 302k354 k. Insufficient Allegations or Denials. Most Cited Cases (Formerly 302k354(12)) 307A Pretrial Procedure KeyCite Citing References for this Headnote 307AIII Dismissal 307AIII(B) Involuntary Dismissal 307AIII(B)4 Pleading, Defects In, in General

Janz N. Serrano 307Ak626 k. Inconsistency, Uncertainty, Indefiniteness, or Lack of Particularity. Most Cited Cases Where inconsistent counts are pleaded in the alternative, the legal sufficiency of each count presents a separate question, and it is not ground for dismissal that allegations in one count contradict those in another count. S.H.A. ch. 110, 34, 43(2). [6] KeyCite Citing References for this Headnote 302 Pleading 302I Form and Allegations in General 302k20 k. Disjunctive and Alternative Allegations. Most Cited Cases Sound policy weighs in favor of alternative pleading so that controversies may be settled and complete justice accomplished in a single action, but alternative pleading is not justified where the pleader has knowledge of the true facts. S.H.A. ch. 110, 34, 43(2). [7] KeyCite Citing References for this Headnote 302 Pleading 302I Form and Allegations in General 302k36 Conclusiveness of Allegations or Admissions on Party Pleading 302k36(2) k. Allegations or Admissions in Declaration, Complaint, or Petition. Most Cited Cases Where widow filed a complaint containing one count charging truck driver under Wrongful Death Act with negligence in operation of truck resulting in collision with automobile driven by decedent, who was allegedly free of contributory negligence, and in another count in the alternative against proprietors of taverns under Dram Shop Act charging sale of alcoholic beverages to decedent caused collision, the allegations under the dram shop count did not constitute binding judicial admissions with respect to wrongful death count. S.H.A. ch. 43, 94 et seq.; ch. 70, 1, 2. [8] KeyCite Citing References for this Headnote 157 Evidence 157VII Admissions 157VII(A) Nature, Form, and Incidents in General 157k206 Judicial Admissions 157k208 Pleadings 157k208(2) k. Admissibility in Subsequent Proceedings in General. Most Cited Cases Alternative fact allegations made in good faith and based on genuine doubt are not admissions against interest and are not admissible in evidence against the pleader. S.H.A. ch. 110, 43(2). [9] KeyCite Citing References for this Headnote 302 Pleading

West Headnotes [1] KeyCite Citing References for this Headnote 117 Death 117III Actions for Causing Death 117III(A) Right of Action and Defenses 117k20 Defenses 117k23 k. Contributory Negligence of Deceased. Most Cited Cases Freedom from contributory negligence is a prerequisite to recovery under Wrongful Death Act. S.H.A. ch. 70, 1, 2. [2] KeyCite Citing References for this Headnote 272 Negligence 272III Standard of Care 272k239 k. Intoxication or Other Impairment of Defendant. Most

302I Form and Allegations in General 302k20 k. Disjunctive and Alternative Allegations. Most Cited Cases Essential objective of alternative pleading is to relieve pleader of necessity and therefore the risk of making a choice. S.H.A. ch. 110, Page | 5 43(2). [10] KeyCite Citing References for this Headnote 48A Automobiles 48AV Injuries from Operation, or Use of Highway 48AV(B) Actions 48Ak241 Evidence 48Ak244 Weight and Sufficiency 48Ak244(41) Contributory Negligence 48Ak244(41.1) k. In General. Most Cited Cases (Formerly 48Ak244(41)) In action by widow, individually and as administratrix, against truck driver under Wrongful Death Act for negligence in operation of truck which collided with automobile driven by decedent, who was allegedly free of contributory negligence, and in the alternative against proprietors of taverns under Dram Shop Act for sale to decedent of alcoholic beverages, which allegedly rendered decedent intoxicated and caused collision, evidence that decedent drank two or three bottles of beer prior to the accident did not contradict widow's position in the wrongful death count that decedent exercised due care for his own safety. S.H.A. ch. 43, 94 et seq.; ch. 70, 1, 2. [11] KeyCite Citing References for this Headnote 48A Automobiles 48AV Injuries from Operation, or Use of Highway 48AV(B) Actions 48Ak245 Questions for Jury 48Ak245(67) Contributory Negligence 48Ak245(90) k. Proximate Cause of Injury. Most Cited Cases In action by widow, individually and as administratrix, against truck driver under Wrongful Death Act for negligence in operation of truck which collided with automobile driven by decedent, who was allegedly free of contributory negligence, and in the alternative against proprietors of taverns under Dram Shop Act for sale to decedent of alcoholic beverages, which allegedly rendered decedent intoxicated and caused collision, even if widow made out a prima facie case of decedent's intoxication for purposes of Dram Shop Act, truck driver was not entitled to a directed verdict on ground that decedent was guilty of contributory negligence when there was no showing of a causal connection between intoxication and the accident. S.H.A. ch. 43, 94 et seq.; ch. 70, 1, 2. [12] KeyCite Citing References for this Headnote

48A Automobiles 48AV Injuries from Operation, or Use of Highway 48AV(B) Actions 48Ak245 Questions for Jury 48Ak245(67) Contributory Negligence 48Ak245(90) k. Proximate Cause of Injury. Most Cited Cases In action by widow, individually and as administratrix, against truck driver under Wrongful Death Act for negligence in operation of truck which collided with automobile driven by decedent, who was allegedly free of contributory negligence, and in the alternative against proprietors of taverns under Dram Shop Act for sale to decedent of alcoholic beverages, which allegedly rendered decedent intoxicated and caused the collision, even if widow introduced proof to support all allegations of each count, she was entitled to have all the evidence submitted to the trier of fact, and to have jury decide where the truth lay and she was not foreclosed ipso facto from going to jury under wrongful death count merely because she submitted proof under the dram shop count tending to prove that decedent's intoxication proximately caused his death. S.H.A. ch. 43, 94 et seq.; S.H.A. ch. 70, 1, 2; S.H.A. ch. 110, 34, 43(2). [13] KeyCite Citing References for this Headnote 302 Pleading 302I Form and Allegations in General 302k20 k. Disjunctive and Alternative Allegations. Most Cited Cases Provisions of Civil Practice Act authorizing alternative pleading necessarily contemplate that pleader adduce proof in support of both sets of allegations or legal theories, leaving to the jury the determination of the facts. S.H.A. ch. 110, 34, 43(2). [14] KeyCite Citing References for this Headnote 388 Trial 388VI Taking Case or Question from Jury 388VI(D) Direction of Verdict 388k178 k. Hearing and Determination. Most Cited Cases In testing sufficiency of proof as against a defendant's motion for a directed verdict, sufficiency of proof to support each count is to be judged separately as to each count, and court, as to each count, will look only to proof and inferences therefrom favorable to plaintiff and cannot weigh conflicting evidence, and proof unfavorable to plaintiff, even though plaintiff has introduced that proof, cannot be considered. [15] KeyCite Citing References for this Headnote 388 Trial 388VI Taking Case or Question from Jury 388VI(A) Questions of Law or of Fact in General 388k139.1 Evidence

Janz N. Serrano 388k139.1(5) Submission to or Withdrawal from Jury 388k139.1(6) k. Some, Slight, or Any Evidence. Most Cited Cases (Formerly 388k139(1)) 388 Trial KeyCite Citing References for this Headnote 388VI Taking Case or Question from Jury 388VI(D) Direction of Verdict 388k178 k. Hearing and Determination. Most Cited Cases In passing on a defendant's motion for a directed verdict, determination to be made is whether there is any evidence, excluding unfavorable evidence, upon which jury can base a verdict for plaintiff, and if there is, motion must be denied and issues must be submitted to jury. [16] KeyCite Citing References for this Headnote 48A Automobiles 48AV Injuries from Operation, or Use of Highway 48AV(B) Actions 48Ak245 Questions for Jury 48Ak245(2) Care Required and Negligence 48Ak245(2.1) k. In General. Most Cited Cases (Formerly 48Ak245(2)) In action by widow, individually and as administratrix, against truck driver under Wrongful Death Act for negligence in operation of truck which collided with automobile driven by decedent, who was allegedly free of contributory negligence, and in the alternative against proprietors of taverns under Dram Shop Act for sale to decedent of alcoholic beverages, which allegedly rendered decedent intoxicated and caused collision, evidence under wrongful death count was sufficient to require case to be submitted to jury. S.H.A. ch. 43, 94 et seq.; ch. 70, 1, 2. [17] KeyCite Citing References for this Headnote 157 Evidence 157XIV Weight and Sufficiency 157k588 k. Credibility of Witnesses in General. Most Cited Cases 275 New Trial KeyCite Citing References for this Headnote 275II Grounds 275II(F) Verdict or Findings Contrary to Law or Evidence 275k67 Verdict Contrary to Evidence 275k72 Weight of Evidence 275k72(1) k. In General. Most Cited Cases (Formerly 275k72) While fact alone of inconsistent evidence in support of alternative counts will not bar submission of case to jury, it may very well affect weight of evidence and warrant granting of a new trial, even though it does not warrant ipso facto a directed verdict

Janz N. Serrano or judgment notwithstanding the verdict. S.H.A. ch. 110, 34, 43(2). [18] KeyCite Citing References for this Headnote Page | 6 143 Election of Remedies 143k2 k. Causes of Action and Remedies Subject to Election. Most Cited Cases 302 Pleading KeyCite Citing References for this Headnote 302XVI Motions 302k369 Election 302k369(3) k. Actions Ex Delicto. Most Cited Cases In action by widow, individually and as administratrix, against truck driver under Wrongful Death Act for negligence in operation of truck which collided with automobile driven by decedent, who was allegedly free of contributory negligence, and in the alternative against proprietors of taverns under Dram Shop Act for sale to decedent of alcoholic beverages which allegedly rendered decedent intoxicated and caused collision, doctrine of election of remedies was not applicable and truck driver was not entitled to have widow required to elect between her alternative counts before going to the jury. S.H.A. ch. 43, 94 et seq.; ch. 70, 1, 2. [19] KeyCite Citing References for this Headnote 30 Appeal and Error 30V Presentation and Reservation in Lower Court of Grounds of Review 30V(B) Objections and Motions, and Rulings Thereon 30k201 Mode and Conduct of Trial or Hearing 30k201(1) k. In General. Most Cited Cases In action by widow, individually and as administratrix, against truck driver under Wrongful Death Act for negligence in operation of truck which collided with automobile driven by decedent, who was allegedly free of contributory negligence, and in the alternative against proprietors of taverns under Dram Shop Act for sale to decedent of alcoholic beverages, which allegedly rendered decedent intoxicated and caused collision, truck driver could not complain that he was prejudiced because both counts were submitted together to jury when he failed to seek a separate trial. S.H.A. ch. 43, 94 et seq.; ch. 70, 1, 2; ch. 110, 51. [20] KeyCite Citing References for this Headnote 388 Trial 388V Arguments and Conduct of Counsel 388k133 Action of Court 388k133.6 Instruction or Admonition to Jury 388k133.6(3) Statements as to Facts, Comments, and Argument 388k133.6(5) k. Matters Outside Issues or Evidence. Most Cited Cases (Formerly 388k133(6)) In action by widow, individually and as administratrix, against truck driver under Wrongful Death Act and alternatively against proprietors under Dram Shop Act based on death of her husband, who was killed when his automobile collided with truck, wherein counsel for widow stated in his opening statement that proof would show that truck driver pleaded guilty to driving too fast for conditions, but no proof was introduced to support such assertion, no prejudicial error occurred when evidence indicated that truck driver was driving too fast for conditions and court instructed the jury that statements of counsel not supported by testimony should not be considered. S.H.A. ch. 43, 94 et seq.; ch. 70, 1, 2. [21] KeyCite Citing References for this Headnote 30 Appeal and Error 30XVI Review 30XVI(J) Harmless Error 30XVI(J)9 Witnesses 30k1048 Rulings on Questions to Witnesses 30k1048(6) k. Cross-Examination and Re-Examination. Most Cited Cases In action by widow, individually and as administratrix, against truck driver under Wrongful Death Act for negligence in operation of truck which collided with automobile driven by decedent, who was allegedly free of contributory negligence, and against proprietors of taverns under Dram Shop Act for sale to decedent of alcoholic beverages, which allegedly rendered decedent intoxicated and caused collision, wherein widow on direct examination testified that decedent held a daytime job at airfield and that in evening and on weekends he worked on a farm where he and his family lived and on cross-examination truck driver was not permitted to question widow about decedent's visits to taverns or his intoxication but driver was free to establish that decedent came home late at night and driver did not tender proof that decedent was not a sober or industrious person, error, if any, was not so prejudicial as to warrant a reversal. S.H.A. ch. 43, 94 et seq.; ch. 70, 1, 2. [22] KeyCite Citing References for this Headnote 30 Appeal and Error 30X Record 30X(M) Questions Presented for Review 30k688 Conduct of Trial or Hearing 30k688(2) k. Arguments and Conduct of Counsel. Most Cited Cases Where alleged prejudicial statement made in closing argument is not in the record, it is not properly preserved for review. [23] KeyCite Citing References for this Headnote 30 Appeal and Error 30XVI Review 30XVI(I) Questions of Fact, Verdicts, and Findings 30XVI(I)2 Verdicts 30k1004 Amount of Recovery 30k1004(6) Particular Cases and Items 30k1004(8) k. Personal Injuries. Most Cited Cases (Formerly 30k1004.1(6), 30k1004(1)) 30 Appeal and Error KeyCite Citing References for this Headnote 30XVI Review 30XVI(I) Questions of Fact, Verdicts, and Findings 30XVI(I)2 Verdicts 30k1004 Amount of Recovery 30k1004(14) k. Verdict Against Opinion of Reviewing Tribunal. Most Cited Cases (Formerly 30k1004.4, 30k1004(4)) Courts must examine verdicts in personal injury cases with humble deference to discretion of jury in making its determination and to ruling of trial judge on post-trial motions. *193 **724 Barth, Phillips, Phebus & Tummelson, Urbana, for appellant. John Alan Appleman, Webber, Balbach & Thies, Urbana, for appellees. REYNOLDS, Presiding Justice. On the evening of November 21, 1956, Lewis McCormick was killed on Main Street in Gifford, Illinois, when a truck being operated by defendant Lorence *194 Kopmann collided with the automobile which McCormick was driving. This action was brought by McCormick's widow in the Circuit Court of Champaign County against Kopmann and Anna, John and Mary Huls. The complaint contains four counts; the issues raised on this appeal concern only the first and fourth counts. Count I is brought by plaintiff as Administratrix of McCormick's Estate, against Kopmann, under the Illinois Wrongful Death Act. Plaintiff sues for the benefit of herself and her eight children, to recover for the pecuniary injury suffered by them as a result of McCormick's death. It is charged that Kopmann negligently drove his truck across the center line of Main Street and collided with McCormick's automobile. In paragraph 3 of Count I, plaintiff alleges: That at the time of the occurrence herein described, and for a reasonable period of time preceding it, the said decedent was in the exercise of ordinary care for his own safety and that of his property.

Count IV is brought by plaintiff as Administratrix of McCormick's Estate, against the Huls, under the Illinois Dram Shop Act. Plaintiff avers that County IV is brought in the alternative to Count I. She sues for the benefit of herself and her four minor children, to recover for the injury to their means of support suffered as a result of McCormick's death. It is alleged that Anna Huls Page | 7 operated a dramshop in Penfield, Illinois; that John and Mary Huls operated a dramshop in Gifford; that on November 21, 1956 the Huls sold alcoholic beverages to McCormick which he consumed and which rendered him intoxicated; and that as a result of such intoxication McCormick drove his automobile in such a manner as to cause a collision with a truck being driven by Kopmann on Main Street in Gifford. *195 Kopmann, defendant under Count I, moved to dismiss the complaint on the theory that the allegations of that Count I and Count IV were fatally repugnant and could not stand together, because McCormick could not be free from contributory negligence as alleged in Count I, if his intoxication caused the accident as alleged in Count IV. Kopmann also urged that the allegation in Count IV that McCormick's intoxication was the proximate cause of his death, is a binding judicial admission which precludes an action under the Wrongful Death Act. Kopmann's motion was denied. He raised the same defenses in his answer. The Huls, defendants under Count IV, answered. They did not file a motion directed against Count IV. Neither defendant sought a severance (see Civil Practice Act, Sections 44(2) **725 and 51), and both counts came on for trial at the same time. Plaintiff introduced proof that at the time of the collision, McCormick was proceeding North in the northbound traffic lane, and that Kopmann's truck, travelling South, crossed the center line and struck McCormick's car. Plaintiff also introduced testimony that prior to the accident McCormick drank a bottle of beer in Anna Huls' tavern in Penfield and one or two bottles of beer in John and Mary Huls' tavern in Gifford. Plaintiff's witness Roy Lowe, who was with McCormick during the afternoon and evening of November 21, and who was seated in the front seat of McCormick's car when the collision occurred, testified on cross examination that in his opinion McCormick was sober at the time of the accident. At the close of plaintiff's evidence, all defendants moved for directed verdicts. The motions were denied. Kopmann, the defendant under the Wrongful Death count, introduced testimony that at the time of the collision, his truck was in the proper lane; that McCormick's*196 automobile was backed across the center line of Main Street, thus encroaching on the southbound lane, and blocking it; that the parking lights on McCormick's automobile were turned on, but not the headlights; that Kopmann tried to swerve to avoid hitting McCormick's car; and

that there was an odor of alcohol on McCormick's breath immediately after the accident. Over plaintiff's objection, the trial court permitted Kopmann's counsel to read to the jury the allegations of Count IV relating to McCormick's intoxication, as an admission. The Huls, defendants under the Dram Shop count, introduced opinion testimony of a number of witnesses that McCormick was not intoxicated at the time of the accident. Anna Huls testified that McCormick drank one bottle of beer in her tavern. Several witnesses testified that McCormick had no alcoholic beverages in John and Mary Huls' tavern. All defendants moved for directed verdicts at the close of all the proof. The motions were denied. The jury was instructed that Count IV was an alternative to Count I; that Illinois law permits a party who is uncertain as to which state of facts is true to plead in the alternative, and that it is for the jury to determine the facts. At Kopmann's request, the court instructed the jury on the law of contributory negligence, and further: * * * if you find from all of the evidence in the case that (McCormick) was operating his automobile while intoxicated and that such intoxication, if any, contributed proximately to cause the collision in question, then in the case * * * you should find the defendant, Lorence Kopmann, not guilty. The jury returned a verdict against Kopmann for $15,500 under Count I. The jury found the Huls not guilty under Count IV Kopmann's motions for judgment*197 notwithstanding the verdict, and in the alternative for a new trial, were denied. [1] [2] Kopmann has appealed. His first contention is that the trial court erred in denying his pre-trial motion to dismiss the complaint. Kopmann is correct in asserting allegations. The allegation of sistent allegations. The allegation of Count I the McCormick was free from contributory negligence, cannot be reconciled with the allegation of Count IV that McCormick's intoxication was the proximate cause of his death. Freedom from contributory negligence is a prerequisite to recovery under the Wrongful Death Act. Russell v. Richardson, 308 Ill.App. 11, at page 27, 31 N.E.2d 427, at page 434. It the jury had found that McCormick was intoxicated and that his intoxication caused the accident, it could not at the same time have found that McCormick was not contributorily negligent. The Illinois Supreme**726 Court has held that voluntary intoxication will not excuse a person from exercising such care as may reasonable be expected from one who is sober. Keeshan v. Elgin A. & S. Traction Co., 229 Ill. 533, 537, 82 N.E. 360, 362. [3] In addition to this factual inconsistency, it has been held that compensation awarded under the Wrongful Death Act includes reparation for the loss of support compensable under the Dram Shop Act. McClure v. Lence, 349 Ill.App. 341, 344, 110 N.E.2d 695;

Janz N. Serrano see also Howlett v. Doglio, 402 Ill. 311, 317-319, 83 N.E.2d 708, 6 A.L.R.2d 790. [4] Counts I and IV, therefore, are mutually exclusive; plaintiff may not recover upon both counts. It does not follow, however, that these counts may not be pleaded together. Section 24(1) of the Illinois Civil Practice Act (Ill.Rev.Stat.Ch. 110, Sec. 24) authorizes joinder of defendants against whom a liability is asserted in the alternative arising out of the same transaction. Section 24(3) of the Act provides: If the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more *198 defendants, and state his claim against them in the alternative in the same count or plead separate counts in the alternative against different defendants, to the intent that the question which, if any, of the defendants is liable, and to what extent, may be determined as between the parties. Section 34 of the Act states in part that Relief, whether based on one or more counts, may be asked in the alternative. Section 43(2) of the Act provides: When a party is in doubt as to which of two or more statements of fact is true, he may, regardless of consistency, state them in the alternative or hypothetically in the same or different counts or defenses, whether legal or equitable A bad alternative does not affect a good one. [5] Thus, the Civil Practice Act expressly permits a plaintiff to plead inconsistent counts in the alternative, where he is genuinely in doubt as to what the facts are and what the evidence will show. The legal sufficiency of each count presents a separate question. It is not ground for dismissal that allegations in one count contradict those in an alternative count. These principles have been applied recently in cases similar to that at bar. In Amer. Transp. Co. v. United States Sanitary Specialties Corp., 1st Dist.1954, 2 Ill.App.2d 144, 118 N.E.2d 793, a lessee joined a count for breach of contract against his sublessee, with an alternative count against his lessor and the lessor's contractors for trespass and negligence which caused the lessee to lose revenues under the sublease. Mr. Justice Robson said (2 Ill.App.2d at pages 156-157, 118 N.E.2d at page 799): * * * Plaintiffs' right to relief exists in the alternative, first against the City and Election Commissioners under Count I. If the acts of Economy and Goodwin,*199 as alleged in Count III, caused the loss of revenue to the plaintiffs under their agreement with the City and Election Commissioners, and not the breach of contract as alleged in Count I, then the court or jury may consider whether defendants Economy and Goodwin are liable for damages in Count III. We are of the opinion that the plaintiffs properly pleaded in the alternative, as provided in section 24, subparagraphs (1), (2), and

(3), of the Illinois Practice Act, against Economy and Goodwin in Count III, so that the question of liability, if any, may be determined between the respective defendants, who are parties to Counts I and III. A recent decision concerning alternative pleading is **727 Page | 8 Urnest v. Sabre Metal Products, Inc. and Edward Yucis, 22 Ill.App.2d 172, 159 N.E.2d 512. In Count I, brought against the defendant corporation, plaintiff alleged that the corporation's agent Yucis contracted to employ plaintiff as general manager of the corporation; that Yucis was authorized to enter into this agreement; that the corporation ratified the contract, and that the corporation breached the contract. Plaintiff sought damages for breach of contract. In Count II, brought against Yucis, plaintiff averred that Yucis fraudulently represented that he was authorized to contract on the corporation's behalf and that the corporation had ratified his acts, whereas Yucis had no such authority and no ratification had taken place. Plaintiff sought damages for fraud and deceit. The motions of both defendants to strike the complaint were allowed, whereupon plaintiff appealed. The court held that the inconsistency between the counts was not ground for dismissal: * * * The allegations in count two are inconsistent with and contradictory of the allegations of count one; however, such pleading is permitted under section *200 43(2) of the Civil Practice Act (Ill.Rev.Stat.1957, chap. 110, par. 43(2)). Freeman & Co. v. [Robert G.] Regan Co., 332 Ill.App. 637 [76 N.E.2d 514]. The theory is that on the trial the proof will determine on which set of facts, if any, the plaintiff is entitled to recover. Where the pleading is in the alternative in different counts, each count stands alone and the inconsistent statements contained in a count cannot be used to contradict statements in another count. The intent of the cited section of the Practice Act is that counts can be pleaded in the alternative regardless of consistency. Even before the enactment of the Civil Practice Act in 1933, inconsistent averments could be set forth in different counts. Keeshan v. E. A. & S. Traction Co., 132 Ill.App. 416, affirmed 229 Ill. 533, 82 N.E. 360, involved a problem similar to that raised by Kopmann in the case at bar. Plaintiff averred that his decedent was wrongfully ejected from defendant's train; that the decedent was intoxicated when ejected; that defendant was aware of his condition, and that the decedent fell from a nearby bridge and was killed. While affirming dismissal of the complaint because the allegations of due care and intoxication in the same count neutralize each other, the court recognized that it is permissible to join repugnant counts in the same declaration. 132 Ill.App. 420. The 1955 revision of Section 43(2) of the Civil Practice Act was designed to make it clear that inconsistent facts or theories could be pleaded alternatively, whether in the same or different counts. In their note respecting the revised section, the drafters of the 1955 Act, having explained why clarifying language was needed, concluded: Under the revision the inconsistency may exist either in

the statement of the facts, or in the legal theories adopted. S.H.A. ch. 110, sec. 43, p. 514. This provision was modelled after Rule 8(e)(2) of the Federal Rules of Civil *201 Procedure, 28 U.S.C.A. Federal courts have held that where the plaintiff in personal injury cases is uncertain as to who is liable, he may assert his claims against the several defendants alternatively. Norris v. Moon, D.C.N.D.Ohio 1949, 9 F.R.D. 214; Fowler v. Baker, D.C.M.D.Pa.1940, 32 F.Supp. 783. [6] Sound policy weighs in favor of alternative pleading, so that controversies may be settled and complete justice accomplished in a single action. Illinois Civil Practice Act, Section 4; City of Nokomis v. Sullivan, 14 Ill.2d 417, 420, 153 N.E.2d 48; Fleshner v. Copeland, 13 Ill.2d 72, 76-77, 147 N.E.2d 329. If the right is abused, as where the pleader has knowledge of the true facts (viz., he knows that the facts belie the alternative) pleading in the alternative is not justified. Thus **728 in Church v. Adler, 350 Ill.App. 471 at page 483, 113 N.E.2d 327 at page 332, we said: * * * alternative pleading is not permitted when in the nature of things the pleader must know which of the inconsistent averments is true and which is false. Plaintiff must know whether she will be sick, sore, lame and disordered for the rest of her life or whether on the contrary she has regained her health, as alleged in Count II. She must make up her mind which is the fact, and strike the inconsistent allegation from her pleading on remand. There is nothing in the record before us to indicate that plaintiff knew in advance of the trial, that the averments of Count I, and not Count IV, were true. In fact, at the trial, Kopmann attempted to establish the truth of the allegations of Count IV that McCormick was intoxicated at the time of the collision and that his intoxication caused his death. He can hardly be heard now to say that before the trial, plaintiff should have known that these were not the facts. Where, as in the Church case, the injured party is still living and able to recollect the events surrounding *202 the accident, pleading in the alternative may not be justified, but where, as in the case at bar, the key witness is deceased, pleading alternative sets of facts is often the only feasible way to proceed. Compare Wattman v. St. Luke's Hospital Ass'n, 314 Ill.App. 244, 255-256, 41 N.E.2d 314, in which the court approved joinder of counts alleging alternative causes for the decedent's death. We hold that, in the absence of a severance, plaintiff had the right to go to trial on both Counts I and IV, and to adduce all the proof she had under both Count I and Count IV. [7] Kopmann's next argument is that the allegations of Count IV regarding McCormick's intoxication constitute binding judicial admissions. He contends that plaintiff's action against him should have been dismissed on the basis of the allegations in Count IV regarding McCormick's intoxication. In 20 Am.Jur., Evidence, 635, the author states (p. 538):

Janz N. Serrano The rule in the majority of jurisdictions is that the admissions made by a pleader in one count or plea are not admissible against him on an issue raised by his denials or averments made in another count or plea. In other words, where inconsistent counts or defenses are pleaded, the admissions in one of them cannot be used to destroy the effect of the other. The author goes on to point out that in some few jurisdictions, statements in one count are held admissible against the pleader on the issue raised by another. No Illinois case has been called to our attention to support this rule. The court below permitted Kopmann to read the allegations of Count IV as admissions. We know of no case which supports the position Kopmann takes in this court, viz., that the admission is conclusively binding and is a ground for judgment notwithstanding the verdict. If this were the law, the *203 provisions of the Civil Practice Act sanctioning pleading in the alternative, regardless of consistency, would be a legal snare. We deem it appropriate to express our grave doubts as to the use as evidence, of alternative allegations as admissions against the pleader. Commenting on the same problem under Federal Rules, Judge Goodrich has said: * * * The rules encourage parties to plead not only what they know is factually true, but also any fact if they believe there is good ground to support it. See Fed.R.Civ.P.11. This soundly based policysee Clark, Code-would tend to be defeated if allegations**729 in the pleadings are admissible as evidence. Parties will hesitate to make notice-giving allegations at the risk of their being used as evidence, especially considering Fed.R.Civ.P. 15 liberalizing amendments.' Giannone v. United States Steel Corp., 3 Cir., 238 F.2d 544, 548. [8] [9] Alternative fact allegations made in good faith and based on genuine doubt are not admissions against interest so as to be admissible in evidence against the pleader. The pleader states the facts in the alternative because he is uncertain as to the true facts. Therefore, he is not admitting anything other than his uncertainty. An essential objective of alternative pleading is to relieve the pleader of the necessity and therefore the risk of making a binding choice, which is no more than to say that he is relieved of making an admission. Kopmann next contends that the trial judge erred in denying his motion for directed verdict at the close of plaintiff's proof. Kopmann's theory is that if, as the trial judge ruled, plaintiff made out a prima facie case under Count IV, she necessarily negatived Kopmann's liability under Count I by proving McCormick was guilty of contributory negligence. He also urges that *204 plaintiff is entitled to have but one of the two counts submitted to the jury, and that the trial judge should have required plaintiff to elect between Counts I and IV at the close of the evidence, and before the case was submitted to the jury.

[10] [11] There are several reasons why we believe Kopmann's position is unsound. First, we are of the opinion that plaintiff's evidence did not contradict the position she took in Count I, viz., that McCormick exercised due care for his own safety. Plaintiff proved only that McCormick drank two or three bottles of beer Page | 9 prior to the accident. Yet Lowe, who was with McCormick during the entire time from late afternoon until his death, testified during plaintiff's case in chief that McCormick was sober at the time of the accident. In a similar case, South Chicago City R. Co. v. Dufresne, 200 Ill. 456, at pages 464-465, 65 N.E. 1075, at page 1078, the Supreme Court said: * * * It appears to us, however, that the evidence would not justify the jury in finding that the plaintiff was intoxicated. It was proved that he drank two glasses of beer, and that his breath smelled of it, but there were quite a number of witnesses who were with him, waiting for the car, and who had opportunities to know his condition, who testified that he was not intoxicated or under the influence of liquor at all. In view of all the evidence, we do not think the instruction was harmful to the defendant. Moreover, even if plaintiff made out a prima facie case of McCormick's intoxication for purposes of the Dram Shop Act, she made no showing of a causal connection between the intoxication and the accident. This is a necessary element of plaintiff's case under Count IV, Ch. 43, Sec. 135, Ill.Rev.Stat. (1957); Danhof v. Osborne, 11 Ill.2d 77, 81, 142 N.E.2d 20, 65 A.L.R.2d 917. All of the witnesses for plaintiff who testified on the question agreed that *205 at the time of the collision McCormick's car was facing north in the northbound traffic lane, and that Kopmann's truck swerved over the center line and struck McCormick's car. Hence, whether or not McCormick was intoxicated at the time of the collision is immaterial, because there was a complete absence of proof that the fatal collision happened in consequence of (McCormick's) intoxication as required by the Dram Shop Act. The trial judge should have directed a verdict for the Huls, as to Count IV because there was no evidence of causal connection between the intoxication, if any, and death, but the error is moot on this appeal by Kopmann, the defendant under Count I, since there was a verdict of not guilty as to Count IV. **730 [12] [13] Our second reason for rejecting Kopmann's contention is more basic. Plaintiff pleaded alternative counts because she was uncertain as to what the true facts were. Even assuming she introduced proof to support all essential allegations of both Count I and Count IV, she was entitled to have all the evidence submitted to the trier of fact, and to have the jury decide where the truth lay. She was not foreclosed ipso facto from going to the jury under Count I, merely because she submitted proof, under Count IV, tending to prove that McCormick's intoxication proximately caused his death. If this were the rule, one who in good faith tried his case on alternative theories, pursuant to the authorization, if not the

encouragement of Section 43, would run the risk of having his entire case dismissed. The provisions of the Civil Practice Act authorizing alternative pleading, necessarily contemplate that the pleader adduce proof in support of both sets of allegations or legal theories, leaving to the jury the determination of the facts. [14] [15] [16] Furthermore, in testing the sufficiency of the proof as against a motion for directed verdict, the *206 sufficiency of the proof to support each count is to be judged separately as to each count, just as the legal sufficiency of each count is separately judged at the pleading stage. As to each count, the court will look only to the proof and inferences therefrom favorable to the plaintiff; the court cannot weigh conflicting evidence. Proof unfavorable to the plaintiff, even though the plaintiff herself introduced that proof, cannot be considered. The determination to be made is whether there is any evidence (all unfavorable evidence excluded) upon which the jury could base a verdict for the plaintiff under the count in question, and if there is, the motion as to that count must be denied and the issues submitted to the jury. Lindroth v. Walgreen Co., 407 Ill. 121, 130, 94 N.E.2d 847; Kiriluk v. Cohn, 16 Ill.App.2d 385, 388-389, 148 N.E.2d 607. Judged by these well-settled tests, it is clear that plaintiff's proof under Count I was sufficient to require the case to be submitted to the jury. [17] What we have said is not to say that a plaintiff assumes no risks in adducing proof to support inconsistent counts. The proof in support of one inconsistent count necessarily tends to negate the proof under the other count and to have its effect upon the jury. While the fact alone of inconsistent evidence will not bar submission of the case to the jury, it may very well affect the matter of the weight of the evidence and warrant the granting of a new trial, even though, as we have held, it does not warrant ipso facto a directed verdict or judgment notwithstanding the verdict. [18] Kopmann argues that plaintiff should have been required to elect between her alternative counts before going to the jury. The doctrine known as election of remedies' has no application to the case at bar. Here, either of two defendants may be liable to plaintiff, depending upon what the jury finds the facts to be. It has been aptly said that truth cannot be stated *207 until known, and, for purposes of judicial administration, cannot be known until the trier of facts decides the fact issues. McCaskill, Illinois Civil Practice Act Annotated (1933), p. 103. Plaintiff need not choose between the alternative counts. Such a requirement would, to a large extent, nullify the salutary purposes of alternative pleading. Since she could bring actions against the defendants seriatim, or at the same time in separate suits, she is entitled to join them in a single action, introduce all her proof, and submit the entire case to the jury under appropriate instructions. See Swift & Co. v. Dollahan, 2 Ill.App.2d 574, 595, 120 N.E.2d 249; McCullough v. Schuberth, 334 Ill.App. 333, 336, 79 N.E.2d 754; see also Freeman & Co. v. Robert G. Regan Co., 332 Ill.App. 637, 651, 76 N.E.2d 514.

Janz N. Serrano [19] Kopmann contends he was prejudiced because Counts I and IV were submitted**731 together to the jury, in that the jury was confused by plaintiff's inconsistent positions as to liability. We believe this argument is no longer open to Kopmann, since he failed to seek a separate trial pursuant to Section 51 of the Illinois Civil Practice Act. Russell v. Chicago Trust & Savings Bank, 139 Ill. 538, 547, 29 N.E. 37, 17 L.R.A. 345; cf. People v. Skaggs, 398 Ill. 478, 480, 76 N.E.2d 455. We also note that Kopmann's counsel repeatedly sought to establish McCormick's intoxication, indicating that this issue would have been injected into the case whether or not Count IV was presented concurrently with Count I. And, in any event, the jury was carefully instructed as to the law and the position of each party. The verdict itself shows that the instructions were understood and followed. Kopmann argues that the practical effect of the trial court's instructions was to direct the jury to determine whether he or the Huls were liable to plaintiff, depending upon whether or not McCormick was intoxicated. The instructions given, belie this contention. At Kopmann's request, the jury was repeatedly admonished that Kopmann was not liable to *208 plaintiff if the jury found McCormick was guilty of contributory negligence, as well as if the jury found McCormick was intoxicated and his intoxication contributed proximately to cause the accident. No error was committed in this regard. In addition to the questions regarding alternative pleading and proof, Kopmann urges that three errors occurred during the course of the trial which require reversal. He argues that prejudicial error occurred when, in his opening statement, counsel for plaintiff stated that the proof would show that Kopmann pleaded guilty to driving too fast for conditions. No proof was introduced to support this assertion. After final arguments, Kopmann's counsel moved for a mistrial on the ground that the unsupported statement concerning the plea of guilty was prejudicial to Kopmann. During a colloquy between counsel in chambers, plaintiff's counsel stated that a police officer had misinformed him about Kopmann's plea, and that he had expected to prove his statement at the time he made it. The trial judge denied Kopmann's motion for mistrial. [20] The evidence strongly indicates that Kopmann was driving too fast for conditions. This proof nullifies any prejudicial effect the statement may have had. See Thompson v. Weible, 19 Ill.App.2d 422, 426, 154 N.E.2d 71. Moreover, the court instructed the jury that statements of counsel not supported by testimony should not be considered. This instruction further diluted any adverse effect made by the statement. Trust Co., of Chicago v. Richardson, 290 Ill.App. 464, 473-474, 8 N.E.2d 530. Since the judgment is supported by ample proof, we will not require a new trial because of plaintiff's counsel's unintentional misstatement. See Johnson v. Chicago & N. W. Ry. Co., 9 Ill.App.2d 340, 358, 132 N.E.2d 678.

Janz N. Serrano [21] The second alleged error concerns the cross examination of the plaintiff, McCormick's widow. On direct*209 examination she testified that McCormick held a daytime job at Chanute Field, and that in the evening and on weekends he worked on an 80-acre farm where he and his family lived. Certain farm records, and copies of Page | 10 McCormick's federal income tax returns, were introduced into evidence. On cross examination, Kopmann's attorney tried to bring out that two or three nights a week, McCormick was in the habit of stopping at taverns on his way home from work, and that about twice a month McCormick came home intoxicated at about 10:00 p. m. Plaintiff's objection to this examination was sustained, but Kopmann's attorney was permitted to question plaintiff about this subject in the form of an offer of proof. Following the offer of proof, the trial judge ruled that Kopmann would not be permitted **732 to question plaintiff about McCormick's visits to taverns or his intoxication. Kopmann's attorney then resumed cross examination in the presence of the jury. When he inquired about when McCormick usually arrived home from work, plaintiff testifiedcontrary to her testimony during the offer of proof-that McCormick came home at about 5:00 p. m. every evening. Kopmann's attorney made no attempt to impeach plaintiff, but instead, discontinued his cross examination. Kopmann contends that proof of McCormick's drinking habits was relevant on the question of damages, to show that McCormick's evening work on the farm was less extensive than plaintiff indicated on direct examination. In Wilcox v. Bierd, 330 Ill. 571, 580-581, 162 N.E. 170, the Supreme Court stated that, in Wrongful Death Actions, the decedent's habits of industry and sobriety are pertinent to the pecuniary loss sustained because of his death. See also Devine v. Boston Store, 167 Ill.App. 443, 452, and Callaway v. Spurgeon, 63 Ill.App. 571, 574. The trial judge ruled in effect that Kopmann could establish that McCormick*210 came home late several nights a week, but he could not bring out why McCormick was late. Kopmann was free to establish that McCormick often came home late at night. He did not tender proof that McCormick was not a sober or industrious person. Nor, does he contend that the verdict is excessive. On the contrary, plaintiff, by cross appeal, asks that we hold the verdict to be inadequate. In light of this record, we think it is Kopmann's fault that the testimony on this subject is not clear. The error, if any, was not so prejudicial as to warrant reversal. See Court of Honor v. Dinger, 221 Ill. 176, 180, 77 N.E. 557. [22] Kopmann's final contention concerns a remark allegedly made by plaintiff's counsel during final argument. The arguments were not transcribed or included in the record on appeal. Following the arguments, Kopmann's counsel stated, presumably outside the jury's presence, that, in discussing damages, plaintiff's attorney had told the jury of a man who had recently insured a race horse for 1 1/2 million dollars. Plaintiff's attorney, in his brief, denies making the statement. Since the closing argument is not in the record, we are unable to judge the prejudicial effect of any remarks of counsel, or whether proper objection was interposed at the trial. Hence Kopmann has not preserved the matter for review. County of Cook v. Colonial Oil Corp., 15 Ill.2d 67, 75, 153 N.E.2d 844; Department of Public Works and Buildings v. Anastoplo, 14 Ill.2d 216, 222-223, 151 N.E.2d 337. Moreover, the remark complained of was innocuous, and did not bring the subject of insurance into the case. The trial judge properly denied Kopmann's motion for a new trial. [23] Plaintiff has perfected a cross appeal, contending that the verdict is inadequate as a matter of *211 law. We believe the jury could reasonably fix plaintiff's damages under Count I at $15,500. The Supreme Court has but recently reminded us that courts of review must examine verdicts in cases such as this with humble deference to the discretion of the jury in making its determination and to the ruling of the trial judge on the post-trial motions. Lau v. West Towns Bus Co., 16 Ill.2d 442, 453, 158 N.E.2d 63, 69. We conclude that the verdict and judgment, below are correct and the judgment is affirmed. Judgment affirmed.

CARROLL, J., concurs.

ROETH, Justice (specially concurring). I concur in the result reached in this opinion but do not agree with all of the language used therein. Ill.App. 1959 McCORMICK v. KOPMANN 23 Ill.App.2d 189, 161 N.E.2d 720 END OF DOCUMENT

Janz N. Serrano CANFIELD et al. v. TOBIAS et al. The answer admits that the indebtedness once existed, but avers that certain promissory notes, signed by the defendants and indorsed *350 by a third person, were received by the plaintiffs in satisfaction of the debt. It contains a copy of a receipt purporting to have been signed by the plaintiffs, acknowledging that the notes were received in full payment of the amount due, and avers that the notes themselves have been paid. For the purpose of the case, the matters set forth in the answer are to be taken as true, and there is no doubt that these matters, relieved of other considerations, constitute a defense to the action. It is claimed, however, that the answer fails to deny, or denies insufficiently, certain allegations of the complaint charging the defendants with fraud and misrepresentation in procuring the assent of the plaintiffs to the arrangement referred to. The character of the arrangement is fully set forth in the complaint, and the allegations upon the subject were inserted by way of anticipation, and not as part of the cause of action necessary to be stated in the first instance. They are not, therefore, such allegations as were required in the complaint, and treating the denials in the answer as insufficient to raise an issue upon them, the question occurs as to whether they are to be acted upon as admitted. The statute provides that every material allegation in the complaint, not specifically controverted by the answer, shall be taken as true; and a material allegation is defined to be one which is essential to the claim, and cannot be stricken from the pleading without leaving it insufficient. (Prac. Act, secs. 65, 66.) It would seem from this that an allegation which is not essential to the claim, and which, therefore, is an immaterial one, is not an allegation necessary to be controverted by the answer, in order to avoid the consequence attached to a failure in this respect as to a material allegation. The language used is equivalent to saying, that unless the allegation is essential to the sufficiency of the pleading this consequence is not to follow, for expressio unius est exclusio alterius is the rule in such cases. The only allegations essential to a complaint are those required in stating the cause of action, and allegations inserted for the purpose of intercepting and cutting off a defense are superfluous and immaterial. The matter alleged may be material in the case, but immaterial in the complaint, and a plaintiff cannot by pleading such matter at the outset call upon the defendant to answer it. He must plead it at the proper time and *351 in pursuance of the rules regulating the course of proceeding, and he cannot anticipate the defense to be made and reply to it in advance. The object of such pleading is to put the adverse party upon his oath without making him a witness, and the effect of allowing it would be to establish a system of discovery in conflict with the spirit of the statute. We are of opinion, therefore, that the allegations in question are not such as the defendants were called upon to answer, and that no inference of their truth is to be drawn from a failure to deny them. Judgment reversed and cause remanded. Cal. 1863. CANFIELD et al. v. TOBIAS et al. 21 Cal. 349, 1863 WL 483 (Cal.) END OF DOCUMENT

Supreme Court of California. January Term, 1863.

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*349 AN allegation in a complaint, not material to the statement of the plaintiffs' cause of action, is not admitted by a failure on the part of the defendant to deny it in his answer. The only allegations essential to a complaint are those required in stating the cause of action. Allegations inserted for the purpose of intercepting and cutting off an anticipated defense are superfluous and immaterial and do not require an answer. The only object to be gained by a plaintiff in anticipating a defense and replying to it in advance is to put the adverse party upon his oath without making him a witness, and the effect of allowing this would be to establish a system of discovery in conflict with the spirit of the statute. The complaint stated a cause of action for goods sold, and, in addition, with a view to meet a probable defense of payment based upon the giving of certain notes by defendant and a receipt in full by plaintiff, stated the making of the notes and receipt and alleged facts attending the transaction which if true avoided its effect as payment by reason of fraud and misrepresentation on the part of defendant. The answer admitted the original demand and averred payment by the notes referred to in the complaint, but did not deny in proper form the allegations in the complaint respecting the fraud of defendant in the transaction. The case was submitted on the pleadings and plaintiff had judgment: Held, that the judgment was erroneous; that the allegations of the complaint in reference to the transaction claimed to operate as payment were not material allegations requiring a denial, and were not therefore admitted by the failure of defendant to deny them. APPEAL from the Twelfth Judicial District. The facts are stated in the opinion. H. J. Labatt, for Appellant. Edward Tompkins, for Respondent. COPE, J. delivered the opinion of the Court-- FIELD, C. J. and NORTON, J. concurring. This is an action to recover a balance alleged to be due on an account for goods, wares, and merchandise. The plaintiff obtained a judgment upon the pleadings, and the only question is as to the sufficiency of the answer.

Court of Appeals of the District of Columbia. CRAMER v. AIKEN. Page | 12 No. 5932. Argued Dec. 8, 1933. Decided Jan. 2, 1934. Appeal from the Supreme Court of the District of Columbia. Action by James Cramer against Ernest Aiken. From a judgment in favor of the defendant, the plaintiff appeals. Affirmed.

302III Responses or Responsive Pleadings in General 302III(C) Traverses or Denials and Admissions 302k126 k. Negative Pregnant. Most Cited Cases Defendant's plea to declaration in action for damages for malicious prosecution and false arrest held not objectionable as negative pregnant, especially where not made before trial. [5] KeyCite Citing References for this Headnote 249 Malicious Prosecution 249V Actions 249k56 k. Presumptions and Burden of Proof. Most Cited Cases Plaintiff suing for damages for malicious prosecution has burden to establish affirmatively want of probable cause for prosecution, and that it was instituted for malice. **762 *17 John H. Burnett, of Washington, D.C., for appellant. Frank T. Fuller, of Washington, D.C., for appellee.

Janz N. Serrano time, and denies that he did unlawfully and/or forcibly imprison plaintiff for any time, and defendant further denies that plaintiff was injured in his reputation, body, or mind by any act or acts of this defendant. The record is brief. It contains copies of the declaration and the amended plea, and states that on a day named a jury was duly sworn and testimony was submitted by the plaintiff tending to show that he was locked up for twelve hours at the police station on February 3, 1931, upon an information charging him with larceny; that he had to pay $25 as premium on a recognizance for his release and $125 attorney's fees for his defense on the larceny charge; that the charge of larceny was tried before a jury and he was acquitted. Thereupon plaintiff rested his case and defendant moved for a directed verdict, which motion was granted over the exception of plaintiff. The plaintiff as ground for his exception alleged that the several counts in the pleas were not denials of the allegations contained in plaintiff's declaration; that being in the very words of the declaration they constituted a negative pregnant, and constituted an admission of the allegations contained in the declaration, and that all that plaintiff was required to do under the pleadings was to prove his damages. The plaintiff thereupon appealed to this court. [1] [2] [3] [4] [5] We do not agree with the appellant's contention. A negative pregnant has been defined as that form of a denial which implies an affirmative, or as a denial in such form as to imply or express an admission of the substantial fact which apparently is controverted, or a denial which, although in the form of a traverse, really admits the important facts contained in the allegations to which it relates. This is considered as a fault in pleading for the reason that it is ambiguous and evasive. The rule against a negative pregnant, however, appears in modern times, at least, to have received no very strict construction. For many cases have occurred in which on various grounds of distinction from the general rule such a form of expression has been held to be free of objection. Shipman on Common Law Pleading (Hornbook Series), pp. 442,443. Moreover, an objection to a negative pregnant is not regarded favorably by courts where it is not made before trial, as is the case here. **763 *18 Hershey v. O'Neill (C.C.) 36 F. 168. And where a denial is contained in the plea of a material part of the averment in the declaration, a literal denial is not regarded as a negative pregnant. Kellogg v. Freeland (Sup.) 195 N.Y.S. 912; Donovan v. Main, 74 App.Div. 44, 77 N.Y.S. 229. A reasonable interpretation of the denials contained in the amended plea is that the defendant did not deny the allegation in the declaration that he had caused the imprisonment of the plaintiff, but that he denied that it was done unlawfully. This constituted a traverse of the averment in the declaration charging the unlawfulness of the detention. The allegation of unlawfulness is a material part of plaintiff's case. Cousins v. Swords, 14 App.Div. 338, 43 N.Y.S. 907; 25 C.J. 532. And, inasmuch as the plaintiff was obliged to plead the fact of unlawfulness, it follows that the burden was upon him to prove that

West Headnotes [1] KeyCite Citing References for this Headnote 302 Pleading 302III Responses or Responsive Pleadings in General 302III(C) Traverses or Denials and Admissions 302k126 k. Negative Pregnant. Most Cited Cases Negative pregnant is that form of denial which implies affirmative. [2] KeyCite Citing References for this Headnote 302 Pleading 302XVIII Waiver or Cure of Defects and Objections 302k409 Waiver of Objections to Plea or Answer or Want Thereof 302k409(1) k. In General. Most Cited Cases Objection to negative pregnant is not favorably regarded where it is not made before trial. [3] KeyCite Citing References for this Headnote 302 Pleading 302III Responses or Responsive Pleadings in General 302III(C) Traverses or Denials and Admissions 302k126 k. Negative Pregnant. Most Cited Cases Where denial of material part of averment in declaration is contained in plea, literal denial is not regarded as negative pregnant. [4] KeyCite Citing References for this Headnote 302 Pleading

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate justices.

MARTIN, Chief Justice. This appeal raises a question of pleading, particularly with reference to the allegations of a plea alleged to be in violation of the rule against the use of negatives pregnant in pleadings. The action was brought to recover damages because of alleged malicious prosecution and false arrest. The first count of the declaration is sufficiently illustrative of the present issue. It reads as follows: First Count: The plaintiff, James Cramer, sues the defendant, Ernest Aiken, for that on, to wit, February 3rd, 1931, the said defendant in the city of Washington, District of Columbia, unlawfully and forcibly restrained the plaintiff of his liberty, and did unlawfully and falsely imprison him for a long space of time, to wit, for the space of ten hours, whereby plaintiff was greatly injured against his will. By reason whereof, plaintiff was injured in his reputation and suffered anxiety and pain of body and mind. Wherefore, plaintiff claims of defendant the sum of $10,000 damages, besides costs of this action. The defendant filed the following amended plea to the foregoing count: 1. As a plea to the first count, the defendant, Ernest Aiken, denies that he unlawfully and/or forcibly restrained the plaintiff of his liberty on to wit February 3, 1931, or at any other

Janz N. Serrano allegation at the trial. In Thaule v. Krekeler, 81 N.Y. 428, it is held that: In an action for malicious prosecution it is for the plaintiff to establish affirmatively the want of a reasonable and probable cause for the prosecution, and that it was instituted for malice. Upon the trial of such an action it is for the court to determine, as a matter of law, assuming plaintiff's evidence to be true, whether plaintiff has Page | 13 established these propositions. The same rule obtains in a case charging false imprisonment. Cousins v. Swords, supra. Inasmuch, therefore, as the plaintiff produced no proof at the trial except such as showed his imprisonment upon a warrant for larceny, he failed to make out a case entitling him to a recovery, and the lower court was right in directing a verdict for the defendant. The judgment of the lower court is affirmed. C.A.D.C 1933. CRAMER v. AIKEN 63 App.D.C. 16, 68 F.2d 761 END OF DOCUMENT

United States District Court, E. D. Pennsylvania. James DAVID v. CROMPTON & KNOWLES CORP. v. CROWN PRODUCTS CORP. v. GEORGE YOUNG CO. Civ. A. No. 70-3411. Jan. 10, 1973. Products liability action. On defendant's motion to amend answer to deny that it designed, manufactured and sold machine in question, the District Court, Huyett, J., held that defendant's averment of lack of knowledge or information sufficient to admit or deny allegation that it had designed, manufactured and sold machine was not proper under the circumstances. In addition, the Court held that motion was required to be denied where action had been filed more than eleven months prior to running of statute of limitations, defendant failed to show good cause for delay in moving to amend and, in the interval, limitations period had run. Motion denied.

In answering an averment, a party may not deny sufficient information or knowledge with impunity, but is subject to the requirements of honesty in pleadings. Fed.Rules Civ.Proc. rule 8(b), 28 U.S.C.A. [3] KeyCite Citing References for this Headnote 170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(C) Answer 170AVII(C)1 In General 170Ak744 Admissions 170Ak744.1 k. In General. Most Cited Cases (Formerly 170Ak744) An averment will be deemed admitted when the matter is obviously one as to which defendant has knowledge or information. Fed.Rules Civ.Proc. rule 8(b), 28 U.S.C.A. [4] KeyCite Citing References for this Headnote 170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(C) Answer 170AVII(C)1 In General 170Ak741 Denials 170Ak743 k. Lack of Knowledge or Information. Most Cited Cases 170A Federal Civil Procedure KeyCite Citing References for this Headnote 170AVII Pleadings and Motions 170AVII(C) Answer 170AVII(C)1 In General 170Ak744 Admissions 170Ak744.1 k. In General. Most Cited Cases (Formerly 170Ak744) Where defendant in products liability action admitted knowledge of subsidiary's role in design, manufacture and sale of machine, which was involved in accident and which was designed and sold prior to defendant's acquisition of manufacturer some nine years prior to suit, defendant's averment that it was without sufficient knowledge or information to admit or deny plaintiff's allegation that it manufactured, designed and sold machine must have been in relation to responsibility which it assumed for such a claim on acquisition; since terms of agreement were peculiarly within control and knowledge of defendant its averment of lack of knowledge or information was not proper and plaintiff's allegation was required to be deemed admitted. Fed.Rules Civ.Proc. rule 8(b), 28 U.S.C.A. [5] KeyCite Citing References for this Headnote 170A Federal Civil Procedure

Janz N. Serrano 170AVII Pleadings and Motions 170AVII(E) Amendments 170Ak833 k. Liberality in Allowing Amendment. Most Cited Cases Purpose of a permissive or liberal attitude toward amendments of pleadings is to encourage decision of the case on the merits by allowing parties to present the real issues of the case. Fed.Rules Civ.Proc. rule 15(a), 28 U.S.C.A. [6] KeyCite Citing References for this Headnote 170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(E) Amendments 170Ak824 k. Time for Amendment in General. Most Cited Cases 170A Federal Civil Procedure KeyCite Citing References for this Headnote 170AVII Pleadings and Motions 170AVII(E) Amendments 170Ak834 k. Injustice or Prejudice. Most Cited Cases A court may deny a request to amend the pleading if it bases such denial upon a valid ground; such grounds include undue prejudice and undue delay. Fed.Rules Civ.Proc. rule 15(a), 28 U.S.C.A. [7] KeyCite Citing References for this Headnote 170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(E) Amendments 170Ak844 Answer 170Ak845 k. Time for Amendment. Most Cited Cases Where no later than October 1, 1971 and almost certainly several months earlier, defendant in products liability action knew basic facts surrounding manufacture and delivery of machine, which was involved in accident and which had been manufactured by defendant's subsidiary prior to acquisition of subsidiary, defendant's proffered reason for delay in failing to move to amend answer to deny that defendant manufacturer sold machine that it was only recently that defendant discovered that it was not liable for such liabilities of subsidiary, could not be considered good cause. Fed.Rules Civ.Proc. rule 15(a), 28 U.S.C.A. [8] KeyCite Citing References for this Headnote 170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(E) Amendments 170Ak844 Answer 170Ak845 k. Time for Amendment. Most Cited Cases

Page | 14

West Headnotes [1] KeyCite Citing References for this Headnote 170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(C) Answer 170AVII(C)1 In General 170Ak741 Denials 170Ak743 k. Lack of Knowledge or Information. Most Cited Cases An answer to an averment in a complaint which states that the party lacks sufficient information or knowledge to admit or deny the averments is proper and has the effect of a denial. Fed.Rules Civ.Proc. rule 8(b), 28 U.S.C.A. [2] KeyCite Citing References for this Headnote 170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(C) Answer 170AVII(C)1 In General 170Ak741 Denials 170Ak743 k. Lack of Knowledge or Information. Most Cited Cases

Where defendant in products liability action did not establish good cause for delay in seeking to amend answer to deny that it had designed, manufactured and sold machine, which was involved in accident and which had been manufactured and sold by defendant's subsidiary prior to acquisition of subsidiary, action had been filed within 11 months prior to running of statute of limitations and Page | 15 statute had since run, motion to amend would be denied. Fed.Rules Civ.Proc. rule 15(a), 28 U.S.C.A. *445 Stephen M. Feldman, Philadelphia, Pa., for plaintiff. Lynn Detweiler, John F. McElvenny, John P. Penders, Philadelphia, Pa., for defendant. MEMORANDUM

sub nom. Duggan v. Green, 355 U.S. 864, 78 S.Ct. 93, 2 L.Ed.2d 70 (1957). Crompton claims that it only recently discovered the information which it now uses as a basis to deny the allegations of Paragraph 5. Plaintiff contends that Crompton's denial of knowledge or information was patently false and should be treated as an admission. The request for leave to amend assumes significance if Crompton's original answer to Paragraph 5 is deemed an admission. If it is considered an admission, then it is necessary to decide whether an amendment which might greatly affect plaintiff's right to recovery should be allowed, but if it is not deemed admitted and is considered denied in the original answer, then the amendment will only serve as a clarification. The machine which was involved in the accident was designed, manufactured and sold by Hunter to Crown in 1961.FN2 Crompton admits that it was aware that the machine was a Hunter product at the time it answered the complaint or very shortly thereafter. FN3 Nevertheless, in answers to interrogatories and in a third-party complaint Crompton indicated that it was responsible for the design, manufacture and sale of the machine which was made prior to its purchase of Hunter. Crompton relies entirely on its claim that it has only recently discovered that the contract by which it purchased Hunter did not make it responsible for liabilities of this kind. FN2. The shredding machine denominated in the complaint is not the correct machine. The proper machine was a Model F-4000 Garnett machine which Crompton referred to in answers to interrogatories filed October 1, 1971. This machine was sold by Hunter to Crown as was the shredding machine mentioned in the complaint.

Janz N. Serrano information, therefore, must have been in relation to responsibility which it assumed for such a claim. Any responsibility, of course, arises from the agreement of sale between Crompton and Hunter. The terms of this agreement are certainly peculiarly within the control and knowledge of Crompton, one of the parties to the agreement. It does not seem too burdensome to hold Crompton to knowledge of the terms of its purchase agreement and their effect on its rights and liabilities more than nine years after the sale of Hunter was completed. The averment of lack of knowledge or information sufficient to admit or deny the allegations of Paragraph 5 is not proper under these circumstances and plaintiff's allegation should be deemed admitted. [5] The next question is whether Crompton should now be permitted to amend its answer to deny the allegation in Paragraph 5. Crompton relies upon Fed.R.Civ.P. 15(a) which provides that leave to amend an answer should be freely given when justice requires. The Federal Rules clearly favor a liberal attitude towards amendments. The purpose of a permissive attitude is to encourage decision of the case on the merits by allowing parties to present the real issues of the case. See, United States v. E. B. Hougham, 364 U.S. 310, 317, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960). [6] A court may deny a request to amend if it bases such denial upon a valid ground. Among the reasons commonly cited for denying permission to amend are that the amendment will result in undue prejudice to the other party, Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971), or that it has been unduly delayed, Albee Homes, Inc. v. Lutman, 406 F.2d 11, 14 (3 Cir. 1968). See, 3 J. Moore, Federal Practice 15.08[4] at 897-898 (1968). Plaintiff claims that Crompton should be denied leave to amend because of undue delay by defendant and prejudice to plaintiff if Crompton's motion is granted. [7] [8] Crompton, as indicated above, knew the basic facts surrounding the manufacture and delivery of the machine no later than October 1, 1971 when it filed answers to interrogatories. It almost certainly knew the essential facts much earlier. Crompton had examined the machinery in question by June, 1971. It had received information concerning the machine from plaintiff's counsel in March, 1971. The proffered reason for this delay, Crompton's recent discovery that it was not liable for such liabilities of Hunter, cannot be considered good cause for the reasons discussed above. The effect of this delay could be highly prejudicial to the plaintiff. The action arose on November 27, 1969. The two-year statute of limitation expired on November 27, 1971. Plaintiff is now barred from instituting this action against another party. The running of the statute is the serious type of prejudice which may justify a denial of defendant's motion to amend his answer. See Strauss v. Douglas Aircraft Co., 404 F.2d 1152 (2 Cir. 1968); Klee v. Pittsburg & W. Va. Ry. Co., 22 F.R.D. 252 (W.D.Pa.1958).

HUYETT, District Judge. The present case is a products liability action involving a serious personal injury.*446 Defendant, Crompton & Knowles Corporation (Crompton), seeks to amend its answer to Paragraph 5 of the complaint which alleges that Crompton designed, manufactured and sold a shredding machine, 600 AAZ Series 11, to Crown Products Corporation (Crown).FN1 In its answer to the complaint Crompton averred that it was without sufficient knowledge or information to admit or deny the allegation and demanded proof. It now seeks to deny that it designed, manufactured and sold the machine in question. FN1. Crompton filed a third-party complaint against Crown, which in turn filed a third-party complaint against George Young Company, which installed the machine on Crown's premises.

Crompton bases its proffered denial upon information which it claims it discovered during 1972. It alleges that the machine was designed, manufactured and sold by James Hunter Corporation (Hunter) prior to its purchase of Hunter, and that it did not assume liabilities for the negligent design, manufacture or sale of machines by Hunter prior to its purchase of Hunter's assets in 1961. [1] [2] [3] An answer to an averment in a complaint which states that the party lacks sufficient information or knowledge to admit or deny the averments is permitted by Fed.R.Civ.P. 8(b) and it has the effect of a denial. A party, however, may not deny sufficient information or knowledge with impunity, but is subject to the requirements of honesty in pleading. See, 2A J. Moore, Federal Practice 8.22 (1968). An averment will be deemed admitted when the matter is obviously one as to which defendant has knowledge or information. Mesirow v. Duggan, 240 F.2d 751 (8 Cir.), cert. denied

FN3. In answers to interrogatories Crompton asserted that it learned of the action from Hunter, which is now a division of Crompton.

[4] In Mesirow v. Duggan, supra, the court held that if the matter alleged in the averment was a matter of record peculiarly within the control and knowledge of the defendant, an answer that defendant was without knowledge or information*447 sufficient to form a belief did not constitute a denial under Fed.R.Civ.P. 8(b). See also, American Photocopy Equipment Co. v. Rovico, Inc., 359 F.2d 745 (7 Cir. 1966); Harvey Aluminum, Inc. v. N. L. R. B., 335 F.2d 749 (9 Cir. 1964); Squire v. Levan, 32 F.Supp. 437 (E.D.Pa.1940); 2A J. Moore, Federal Practice 8.22 (1968). In the present case Crompton admits knowledge of Hunter's role in the design, manufacture and sale of the machine. Its assertion of lack of knowledge or

Janz N. Serrano In the present case the action was filed more than 11 months prior to the running of the statute. In its answer to interrogatories and in its third-party complaint Crompton gave a clear indication that it had assumed Hunter's liabilities in cases such as this. It referred *448 to Hunter's agent as defendant's sales representative and averred that the machine was received from Page | 16 defendant. Plaintiff cannot be considered negligent for not discovering Crompton's alleged defense.FN4 Crompton never gave Under the circumstances of this case defendant's motion to amend will be denied. This may be burdensome to defendant and may deny to it an otherwise valid defense, but that is a situation of its own making. To allow the amendment would be to penalize the plaintiff who is without fault and leave him without a possible remedy for very severe injuries. E.D.Pa., 1973 DAVID v. CROMPTON & KNOWLES CORP. 58 F.R.D. 444, 16 Fed.R.Serv.2d 1442 END OF DOCUMENT

any indication prior to June, 1972 that it was asserting such a defense. If plaintiff had received timely notice of this alleged defense he would have had sufficient time to investigate the relationship between Crompton and Hunter and determine which is the proper party. That possibility was denied to him by defendant's long delay. FN4. Plaintiff does not concede that Crompton did not assume liabilities of the type alleged in this case when it purchased Hunter.

Crompton cites Jacobs v. McCloskey & Co., 40 F.R.D. 486 (E.D.Pa.1966) to support its motion to amend. In that case the district court permitted a defendant to amend its answer to deny ownership of a building which belonged to its wholly owned subsidiary. The effect of the amendment was to deny recovery from one defendantFN5 since the statute had run. The action, however, had been filed only nine days prior to the expiration of the statute and the answer was not filed until after the statute had run. In granting leave to amend the court stated: FN5. There was another defendant which remained in the case.

Had the Defendant answered within the nine day period remaining before the expiration of the statute, thus lulling Plaintiff into believing that his action had been properly brought, this Court would be more sympathetic to the Plaintiff's appeal. However, the Defendant was entitled to forbear responding for the twenty day period specified in the summons. Moreover, it is questionable whether the Plaintiff suffered any prejudice by virtue of the erroneous admission after the statute had expired. The Defendant could have denied ownership at that time, and the Plaintiff's amended complaint against First Penco Realty, Inc., would still have been subject to the defense of the statute of limitations. 40 F.R.D. at 488. Plaintiff in the present case was certainly lulled by defendant during the period between the filing of the complaint and the running of the statute, and it is unquestionable that he has been prejudiced by the delay.

Supreme Court of Montana. McCARTHY v. EMPLOYERS' FIRE INS. CO. Page | 17 No. 7242. Oct. 13, 1934. Appeal from District Court, Cascade County; C. B. Elwell, Judge. Action by Mrs. T. B. McCarthy against the Employers' Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Conditions subsequent are matters of defense to be pleaded by defendant, and it is not necessary that plaintiff anticipate such defenses and negative them (Rev.Codes 1921, 9158). KeyCite Citing References for this Headnote 302 Pleading 302IV Replication or Reply and Subsequent Pleadings 302k162 k. Nature and Office of Replication or Reply. Most Cited Cases Function of reply is to join issue on counterclaim or new matter by way of defense appearing in answer, or to avoid effect of new matter alleged as defense (Rev.Codes 1921, 9158). KeyCite Citing References for this Headnote 302 Pleading 302IV Replication or Reply and Subsequent Pleadings 302k180 Departure from Declaration or Complaint 302k180(1) k. In General. Most Cited Cases Reply cannot aid complaint by supplying omissions therein or broadening its scope by adding new grounds of relief, or permit plaintiff to take position inconsistent with that taken in complaint, and any such allegations therein constitute departure from complaint (Rev.Codes 1921, 9158). KeyCite Citing References for this Headnote 302 Pleading 302IV Replication or Reply and Subsequent Pleadings 302k180 Departure from Declaration or Complaint 302k180(2) k. Actions Ex Contractu. Most Cited Cases In action on automobile fire policy, reply pleading waiver and estoppel as to forfeiture because of chattel mortgage on automobile, which matter was not set forth in complaint, held not demurrable as departure (Rev.Codes 1921, 9158). KeyCite Citing References for this Headnote 388 Trial 388X Trial by Court 388X(A) Hearing and Determination of Cause 388k368 k. Submission of Cause on Stipulation or Agreed Statement. Most Cited Cases Case is not submitted to court sitting without jury, until all that is necessary to decision is before court, and court has taken matter under advisement. KeyCite Citing References for this Headnote 388 Trial 388X Trial by Court

Janz N. Serrano 388X(A) Hearing and Determination of Cause 388k368 k. Submission of Cause on Stipulation or Agreed Statement. Most Cited Cases Agreed statement of facts on which case is tried and submitted becomes court's findings of fact and has effect of special verdict, and judgment must be pronounced thereon, and, in doing so, court is bound by stipulation (Rev.Codes 1921, 9372). KeyCite Citing References for this Headnote 388 Trial 388X Trial by Court 388X(A) Hearing and Determination of Cause 388k368 k. Submission of Cause on Stipulation or Agreed Statement. Most Cited Cases Agreed statement of facts, to sustain judgment for plaintiff, must show all facts necessary to recovery, and must contain ultimate facts presenting only questions of law, and not circumstances which may tend to prove ultimate facts. KeyCite Citing References for this Headnote 388 Trial 388X Trial by Court 388X(A) Hearing and Determination of Cause 388k368 k. Submission of Cause on Stipulation or Agreed Statement. Most Cited Cases Where in trial court's judgment agreed statement of facts is not sufficient to enable court to render judgment, court may set aside such agreement and remand cause for further proceedings. KeyCite Citing References for this Headnote 388 Trial 388X Trial by Court 388X(A) Hearing and Determination of Cause 388k368 k. Submission of Cause on Stipulation or Agreed Statement. Most Cited Cases In action on automobile fire policy, agreed statement of facts which made answer part thereof and to which exhibit purporting to show nature of authority of company's agent was missing held insufficient to enable court to render judgment. KeyCite Citing References for this Headnote 388 Trial 388X Trial by Court 388X(A) Hearing and Determination of Cause 388k368 k. Submission of Cause on Stipulation or Agreed Statement. Most Cited Cases

West Headnotes KeyCite Citing References for this Headnote 30 Appeal and Error 30V Presentation and Reservation in Lower Court of Grounds of Review 30V(B) Objections and Motions, and Rulings Thereon 30k234 Necessity of Motion Presenting Objection 30k237 At Trial or Hearing 30k237(1) k. In General. Most Cited Cases Failure to grant continuance, after amendment of reply during trial over defendant's objection on ground of surprise, could not be reviewed, where no motion for continuance was made. KeyCite Citing References for this Headnote 30 Appeal and Error 30XVI Review 30XVI(C) Parties Entitled to Allege Error 30k881 Estoppel to Allege Error 30k882 Error Committed or Invited by Party Complaining 30k882(5) k. Pleading in General. Most Cited Cases Defendant could not question on appeal sufficiency of amended reply, where at time of filing it treated reply as sufficient and secured court's order that its allegations be deemed denied. KeyCite Citing References for this Headnote 302 Pleading 302II Declaration, Complaint, Petition, or Statement 302k67 k. Anticipating Defenses. Most Cited Cases

Janz N. Serrano Refusal to dispose of case on agreed statement of facts held not error, where such statement was clearly insufficient, and where after refusal complaining counsel actively participated in trial on merits. KeyCite Citing References for this Headnote Page | 18 388 Trial 388X Trial by Court 388X(A) Hearing and Determination of Cause 388k368 k. Submission of Cause on Stipulation or Agreed Statement. Most Cited Cases In action on automobile fire policy, insurer held not entitled to directed verdict under agreed statement of facts after court's refusal to dispose of case thereon as insufficient, where facts other than those stipulated were before court, raising new issue as to waiver and estoppel, and before submission of motion for directed verdict insured had amended reply to conform to such facts. *580 Freeman, Thelen & Freeman, of Great Falls, for appellant. Molumby, Busha & Greenan, of Great Falls, for respondent. MATTHEWS, Justice. The defendant, Employers' Fire Insurance Company, has appealed from a judgment rendered against it and in favor of Mrs. T. B. McCarthy on a policy issued to the plaintiff by the defendant, covering an automobile of the alleged value of $1,500, which was destroyed by fire on December 5, 1928. Action to recover on the policy was instituted October 10, 1929. The complaint alleged that the policy was in full force and effect at the time of the fire, and that the insured had complied with all of the conditions of the policy by her to be kept and performed, including notice of loss, demand, and the like, and that the defendant company took possession of the wreck of the car after the fire, but refused to pay the loss. Manifestly, issue was joined, as the case was set for trial for November 25, 1931. On November 24 defendant, by leave of court, filed an amended answer, setting up three special defenses to the action, the only one which is important here being that the insured had, without the assent of the insurer, mortgaged the car to secure the payment of a note for $100, which action rendered the policy void under its terms. On November 25, plaintiff replied, alleging waiver of the condition of the policy by taking possession of the wrecked car immediately after the fire and retaining it after discovery of the existence of the mortgage, which discovery is alleged to have been made immediately after the fire; estoppel to deny liability, and failure to return, or offer to return, the unearned premium, constituting a waiver and election to consider the policy in force. The reply further alleged that on January 27, 1930, the defendant filed an answer asserting its intention to declare the policy void, but failed and neglected then to return the car or return, or offer to return, the unearned premium. The defendant demurred to the reply, which demurrer was overruled, whereupon the case was called for trial. It was then stipulated between counsel for the parties that a jury trial would be waived, and that the cause would be submitted to Judge H. H. Ewing on an agreed statement of facts; Judge W. H. Meigs, in whose department the case was pending, being then seriously ill. A purported agreed statement was drawn, signed, and filed with the clerk of the court on May 31, 1932, and thereafter the plaintiff filed her brief and a request for findings of fact and conclusions of law, and the defendant filed a brief and a request for the adoption of conclusions of law tendered; the plaintiff filed a reply brief. The agreed statement, as filed, called for the consideration of six exhibits, which it recited are hereto attached *** and made a part hereof; these exhibits were not attached to the statement and were not filed with the clerk until August 11, 1932, and thereafter Exhibit B seems to have disappeared. Judge Ewing made no disposition of the cause; instead, it was set down for trial and came on for trial on June 6, 1933, before a jury; Judge C. B. Elwell presiding in the stead of Judge Meigs, incapacitated by illness. At the opening, counsel for defendant objected to the impaneling of a jury and to the introduction of testimony, on the ground that the cause had already been submitted to the court upon an agreed statement, *** which is binding on the court, and that it is the duty of the court to render judgment upon the agreed statement. Counsel asked leave to submit proof in support of the motion, and, leave being granted, J. P. Freeman, of counsel, was sworn, outlined the history of the case, and introduced the agreed statement, the briefs filed, and the exhibits which should have been attached to the statement, in evidence. It appears from the cross-examination of this witness that, at some time prior to the trial, Judge Ewing had informed respective counsel that, because of reference in the statement to the pleadings and the fact that an important exhibit was missing, the statement was insufficient*581 to warrant a decision, and he would not consider it. Counsel then sought to redraft the statement to meet the objections, but failed of agreement. Judge Ewing was called as a witness for the plaintiff; he testified that, because of the fact that the statement made the answer a part of the statement, and because an exhibit purporting to show the nature of the authority of an agent for the company was missing, he deemed the statement insufficient on which to base a decision. He said: I came to the conclusion *** that there were not sufficient facts stipulated to for me to decide, and I so informed counsel. There was some dispute as to how long Exhibit B, the certificate of the agent's authority, had been in the files; it was shown to Judge Ewing, who testified that while on the witness stand was the first time he had ever seen it. On the showing made, the court overruled defendant's objections and impaneled a jury. Over the objection that the cause had been submitted, the plaintiff was permitted to make her proof in the course of which she showed that the wreck of the car was taken to a Great Falls garage on direction of the agent of the defendant, and that within five days thereafter the defendant learned of the mortgage from the mortgagee, and learned that it had not been satisfied. The plaintiff further showed that, notwithstanding its full knowledge of the mortgage by the 10th of December, defendant, on the 11th day of February following, compelled the plaintiff to appear at the office of its counsel and testify respecting the fire, the ownership of the car, and concerning the mortgage, and that, in doing so, she incurred expense in the employment of an attorney to represent her during the inquiry. She testified that at no time subsequent to the fire did the agent of the company, or any one else for it, notify her that they were not going to pay the insurance policy, but that she learned of the company's position through outside sources. The plaintiff introduced the policy in evidence, proved prompt notice of the fire and timely filing of proof of loss and claim, and that the car was worth from fifteen to sixteen hundred dollars at the time of its destruction; that the front part of the car was not burned and that it had some salvage value; that the car was not returned to her; nor did the company offer to return the unearned premium. Plaintiff rested. The defendant then, as its defense, again introduced in evidence the agreed statement of facts and the six exhibits therein referred to, and then, in the absence of the jury, introduced further testimony respecting the attempt to induce Judge Ewing to dispose of the case on the agreed statement. It then moved for an instructed verdict on the ground that the policy became void on the execution of the mortgage in violation of the terms of the policy. However, before counsel for defendant had completed his motion, counsel for the plaintiff asked leave to amend the reply to conform to the proof in this respect, by adding a further separate and complete reply, which is that the defendant, within a few days after the fifth day of December, 1928, discovered the existence of the mortgage *** and that the same was unpaid, *** and thereafter with full knowledge that said car was encumbered by said mortgage, directed the plaintiff to furnish the defendant a sworn proof of loss and caused the plaintiff to appear before the attorney for the defendant and give testimony under oath, and caused her the expense of hiring an attorney to prepare proof of loss and representing her at the time of taking testimony and before the representative of the defendant, and by reason of said facts they waived the defense that the automobile *** was encumbered, *** and by reason of said facts is estopped now to assert that said policy is void or voidable. The defendant objected to the granting of leave to amend only on the ground and for the reason that it comes at such a stage of the proceedings that it will probably be necessary for the defendant to introduce additional evidence which is not available at the present time, and comes as a complete surprise, and defendant is not prepared to meet that matter as sought to be pleaded. The

court granted the motion, and the amendment was made. Counsel for defendant did not ask for further time or for a continuance on the ground of surprise, but thereupon completed his motion for a directed verdict, which motion was overruled. The court instructed the jury to the effect that the only Page | 19 questions at issue and to be determined were as to whether there was a forfeiture of the policy by reason of the mortgage, and as to the damages to be awarded. As to the first question, the court instructed the jury that the defendant claims a forfeiture while the plaintiff asserts that, after the fire and after full knowledge of the facts *** the defendant waived the forfeiture and is now estopped to claim any forfeiture in this case. Further, the court explained the defense on this ground alone, and said: This forfeiture may be waived by the defendant, and if you find by a preponderance*582 of the evidence that the defendant, with knowledge that a cause of forfeiture existed, so conducted itself toward the plaintiff that the plaintiff was justified in believing that the right of forfeiture would not be invoked, and thereby led the plaintiff into the expenditure of time and money in presenting her demands, *** not taking into consideration, however, the bringing of this suit or the time or expense connected therewith, then you may find that the defendant has waived the right to insist upon a forfeiture. Verdict and judgment for the plaintiff followed, and defendant appealed from the judgment, without moving for a new trial. Specifications of error numbered 1, 2, and 3 challenge the correctness of the court's ruling on defendant's objections to the impaneling of the jury and to the introduction of testimony, and on its motion for a directed verdict, all on the ground that the case had been submitted on an agreed statement of facts, and it was the duty of the court to render judgment on the statement and not otherwise. Specification No. 4 predicates error on the denial of the motion for a directed verdict on the ground that it affirmatively appears from the agreed statements of facts that the car was mortgaged, contrary to the express prohibition of the policy, which is that no mortgage should be placed thereon without the written consent of the defendant, attached to the policy. The fifth and last specification is based on the overruling of defendant's demurrer to the reply; it being asserted that thereby plaintiff was attempting to plead waiver and estoppel, not set forth in the complaint, thus constituting a departure from the allegations of the complaint. [1] On the first question presented for our consideration, it is true that on November 25, 1931, it was agreed between counsel, and understood by the court, that the case was to be submitted on an agreed statement of facts, and that thereafter opposing counsel agreed upon and filed a statement and did all they thought necessary, at the time, for such submission, but a case is not submitted to the court sitting without a jury, until all that is

necessary to a decision is before the court, and the court has taken the matter under advisement. Moir v. Bourke, 156 Iowa, 612, 137 N. W. 921; Mosehauer v. Jenkins, 128 App. Div. 825, 112 N. Y. S. 1038, 1039; MacDermot v. Grant, 181 Cal. 332, 184 P. 396; Aetna Life Ins. Co. v. Board of Com'rs of Hamilton County, 79 F. 575, 25 C. C. A. 94; Warner v. Warner, 83 Kan. 548, 112 P. 97; Board of Education of St. Louis v. United States Fidelity & Guaranty Co., 155 Mo. App. 109, 134 S. W. 18. [2][3][4] When a case is tried and submitted on an agreed statement of facts, the statement becomes the court's findings of fact and has the effect of a special verdict, and judgment must be pronounced thereon, and, in doing so, the court is bound by the stipulation. Section 9372, Rev. Codes 1921; Conklin v. Cullen, 25 Mont. 214, 64 P. 502; Jenkins v. Newman, 39 Mont. 77, 101 P. 625; Yellowstone County v. First Trust & Savings Bank, 46 Mont. 439, 128 P. 596; Read v. Lewis and Clark County, 55 Mont. 412, 178 P. 177; Lewis v. Lambros, 58 Mont. 555, 194 P. 152. But, to sustain a judgment for plaintiff on an agreed statement of facts, the statement must show all the facts necessary to a recovery (Billings Hardware Co. v. Bryan, 63 Mont. 14, 206 P. 418), and must contain ultimate facts presenting only questions of law, and not circumstances which may tend to prove ultimate facts. Longmeyer v. Lawrence, 50 Okl. 457, 150 P. 905; Wilson v. Merchants' Loan & Trust Co., 183 U. S. 121, 22 S.Ct. 55, 46 L. Ed. 113. If, in the judgment of the trial court, the statement is not sufficient to enable the court to render judgment, the court may set aside the agreement and remand the cause for further proceedings. Powers v. Provident Institute, 122 Mass. 443; Ford v. Buchanan, 111 Pa. 31, 2 A. 339; Jones v. Integrity Trust Co., 292 Pa. 149, 140 A. 862; Carr v. Lewis Coal Co., 96 Mo. 149, 8 S. W. 907, 9 Am. St. Rep. 328; Field v. Chicago, etc., Ry. Co., 21 Mo. App. 600; 1 R. C. L. 780; State Insurance Co. v. Farmers' Mutual Ins. Co., 65 Neb. 34, 90 N. W. 997. [5] Herein it is clear that the agreed statement was not sufficient, and Judge Ewing so informed counsel, and the record discloses that thereafter counsel sought, unsuccessfully, to come to an agreement upon ultimate facts in lieu of the agreement that the answer on file was made a part of the statement. [6] Counsel did not seek to compel Judge Ewing to perform the duty they contend rested upon him, but, when the cause was called for trial, insisted that it was the duty of the presiding judge to dispose of the case on the statement which Judge Ewing had rejected. On the court's refusal so to do, counsel for defendant actively participated in the trial on its merits by introducing in *583 evidence the exhibits (already before the court on their objections) on which they relied to establish their defense of forfeiture. Such participation in a trial, after exception taken, is said to be a waiver of the exception, of which the party cannot thereafter take advantage on appeal (3 C. J. 958; Kittredge v. Race, 92 U. S. 116, 23 L. Ed. 488; Campbell v. City of Haverhill, 155 U. S. 610, 15 S.Ct. 217, 39 L. Ed. 280; Carle v. Oklahoma Woolen Mills, 16 Okl. 515, 86 P. 66), but whether this rule be followed or not, the court did not err

Janz N. Serrano in proceeding to trial in the circumstances, nor in denying the motion for a directed verdict on the ground stated. [7] It follows that there is no merit in the contention that under the agreed statement of facts the defendant was entitled to a directed verdict; facts other than those stipulated were before the court raising a new issue as to waiver and estoppel, and, before the submission of the motion for a directed verdict, the plaintiff had, with leave of court, amended her reply to conform to those facts. [8] Finally, error is predicated upon the overruling of defendant's demurrer to the reply, based on the ground that the pleading therein of matters of waiver and estoppel constituted a departure from the case made by the complaint. In the condition of the record it would seem that, if error was committed in this respect, it does not constitute reversible error, as it did not affect the trial of the case or the verdict and judgment; hence did not affect the substantial rights of the defendant. As noted above, the plaintiff did not rely upon the grounds of waiver and estoppel set up in the original reply, but rather upon those alleged in the further, separate and complete reply filed by leave of court at the close of the case to conform to the proof, and the question of waiver and estoppel was submitted to the jury solely upon the allegations and proof of this defense to the charge that the policy was voided. Defendant realized at the time of its offer that this proof was not within the issues presented by the original pleadings, for it was objected to on that ground, but error is not predicated on its admission, and while defendant objected to the amendment to the reply setting up the new matter as a waiver or estoppel, it did not do so on the ground that such matter constituted a departure. The objection interposed merely constituted ground for a motion for continuance, which was not thereafter made, and cannot now be reviewed. Miller v. Matheson, 28 Mont. 132, 72 P. 414; Sanford v. Newell, 18 Mont. 126, 44 P. 522. [9] The defendant did not question the sufficiency of this further reply by demurrer or otherwise; on the contrary, counsel at the time of its filing treated it as sufficient and secured the order of the court that its allegations be deemed denied; consequently, the sufficiency of this reply cannot now be questioned. State ex rel. Hahn v. District Court, 83 Mont. 400, 272 P. 525. Counsel's argument as to the insufficiency of the reply deals, in the main, with the allegations of the original reply, raising questions not submitted to the jury. However, we are of the opinion that the court did not err in overruling the demurrer to the original reply on the ground urged. [10][11] The function of a reply is to join issue on a counterclaim or new matter by way of defense appearing in the answer, and therein the plaintiff may set up any new matter, not inconsistent with the complaint, constituting a defense to such counterclaim or new matter in the answer (section 9158, Rev. Codes 1921), or to avoid the effect of new matter alleged as a defense (Buhler v. Loftus, 53 Mont. 546, 165 P. 601). Thus it is clear

Janz N. Serrano that the reply cannot aid the complaint by supplying omissions therein or broadening its scope by adding new grounds of relief, or permit the plaintiff to take a position inconsistent with that taken in the complaint. Flannery v. Campbell, 30 Mont. 172, 75 P. 1109; Doornbos v. Thomas, 50 Mont. 370, 147 P. 277; Buhler v. Loftus, above. Any such allegations in the reply constitute a departure from Page | 20 the case made in the complaint. There is considerable authority for the rule, contended for by the defendant, that where the complaint alleges general performance of the duties or conditions precedent imposed upon the plaintiff by the contract, a departure from the original pleadings results where facts constituting a waiver, estoppel or excuse for nonperformance are pleaded by way of reply. If the facts so set up relate to conditions precedent, there is some foundation for the rule, on the theory that the two grounds of alleged liability are inconsistent. However, Roger W. Cooley declares that: A plaintiff does not change his cause of action by substituting allegations of waiver of a breach of conditions precedent for a general denial thereof. Nor are allegations in a petition of waiver of such a defense inconsistent with the statutory *584 allegation that all conditions on insured's part have been duly performed. Insured may properly assume that reliance will not be placed upon conditions which have been waived. 6 Cooley's Briefs on Insurance (2d Ed.) 4544, citing numerous cases in support of the text. In German-American Insurance Co. v. Hyman, 42 Colo. 156, 94 P. 27, 31, 16 L. R. A. (N. S.) 77, it is said: When to plaintiff's action upon the contract the insurer pleads a forfeiture for violation of a given restrictive clause thereof, plaintiff may plead in reply facts constituting a waiver *** or an estoppel with reference thereto. This is not bringing in by replication a new and different cause of action. There is no attempt to reform the policy and rest the recovery upon a new or different contract. The action remains upon the original contract. The replication simply shows that defendant has no right to plead or rely upon the alleged violation of that contract. And, if plaintiff recovers, he recovers upon the contract as it was originally written. Certain of the reported cases invoke the rule on the theory that the allegations of the complaint as to performance must be considered as meaning such as have not been waived (for example, see Levy v. Peabody Insurance Co., 10 W. Va. 560, 27 Am. Rep. 598), while others rest their decision on the fact that the controverted condition was a condition subsequent (as here), while the complaint concerns only the performance of conditions precedent (see Tillis v. Liverpool, etc., Insurance Co., 46 Fla. 268, 35 So. 171, 175, 110 Am. St. Rep. 89). 5 Cooley, above, 4548, where numerous cases holding that the setting up of waiver by reply did not constitute a departure. [12] In the Tillis Case, above, the facts were similar to those in the case at bar; the complaint pleaded the performance of the conditions imposed by the policy; the defendant pleaded the breach of a promissory warranty or condition subsequent; the plaintiff set up facts constituting waiver in its reply. The court held that conditions subsequent are matters of defense to be pleaded by the defendant, and it is not necessary that the plaintiff anticipate such defenses, and negative them by averring performance (citing cases); consequently the original averments related only to conditions precedent, and the reply did not conflict with the complaint. This reasoning is followed and the same result reached in Western Reciprocal Underwriters' Exchange v. Coon, 38 Okl. 453, 134 P. 22, wherein several former decisions of the Supreme Court of Oklahoma, cited by defendant in support of the rule for which it contends, were distinguished or overruled. The differentiation between conditions precedent and conditions subsequent is based upon sound reason. As to the first, the policy does not go into effect until they are performed; therefore, to state a cause of action, performance of these conditions must be alleged. As to the second, nonperformance may void the policy only if the insurer sees fit to take advantage of the dereliction of the insured; but unless it sees fit to assert a forfeiture, the plaintiff may recover. See Henderson v. Daniels, 62 Mont. 363, 205 P. 964; Smith v. Hoffman, 56 Mont. 299, 184 P. 842. [13] The latter is the better rule; it is supported by sound reasoning found in a substantial line of authorities, and thereunder we hold that, in the circumstances of this case, no error was committed in overruling the demurrer to the reply. Judgment affirmed.

CALLAWAY, C. J., and STEWART and ANDERSON, JJ., concur.

Mont. 1934. McCARTHY v. EMPLOYERS' FIRE INS. CO. 97 Mont. 540, 37 P.2d 579, 97 A.L.R. 292 END OF DOCUMENT

United States District Court, D. Massachusetts. CASH ENERGY, INC., et al., Plaintiffs, v. Melvin WEINER, et al., Defendants. Civ. A. No. 90-12624-K. June 26, 1991. Condominium project owners brought action against corporate owners of adjacent property and officers of corporations alleging violation of Comprehensive Environmental Response, Compensation, and Liability Act, Massachusetts environmental law, and Massachusetts Consumer Protection Act based on alleged failure of corporations to inform condominium project owners of contamination of adjacent property when corporations discovered problem. Defendants moved to dismiss. The District Court, Keeton, J., held that: (1) Consumer Protection Act did not apply, and (2) complaint against individual officers of corporations was insufficient. Motion granted.

170Bk391 k. Sources of Authority; Assumptions Permissible. Most Cited Cases Where no directly relevant precedents are available to guide district court's resolution of issue of interpretation of state statute, dicta (and even implied dicta) in state court opinions have substantial weight. [3] KeyCite Citing References for this Headnote 101 Corporations 101I Incorporation and Organization 101k1.4 Disregarding Corporate Entity 101k1.4(1) k. In General. Most Cited Cases 101 Corporations KeyCite Citing References for this Headnote 101X Officers and Agents 101X(B) Authority and Functions 101k306 k. Individual Liability on Corporate Contracts, and for Unauthorized or Illegal Acts. Most Cited Cases Traditional principles of corporate law preclude individual liability unless grounds are shown either for piercing corporate veil or finding active personal involvement in tortious act. [4] KeyCite Citing References for this Headnote 101 Corporations 101X Officers and Agents 101X(B) Authority and Functions 101k306 k. Individual Liability on Corporate Contracts, and for Unauthorized or Illegal Acts. Most Cited Cases What is required for claims against individuals in corporate hierarchy is some showing of direct personal involvement by corporate officer and some decision or action which is causally related to plaintiff's injury; it may be sufficient that record indicates issue of fact concerning officer's possible involvement in matters that might have caused plaintiff's injury or concerning whether officer is guiding spirit in tortious affair. [5] KeyCite Citing References for this Headnote 101 Corporations 101X Officers and Agents 101X(D) Liability for Corporate Debts and Acts 101k350 Actions to Enforce Liability 101k360 Pleading 101k360(1) k. Bill, Declaration, Petition, or Complaint. Most Cited Cases Condominium project owners' complaint against officers of corporate owners of adjacent property seeking to hold officers liable under CERCLA and Massachusetts law for alleged failure to inform condominium project owners of contamination of adjacent property when corporations discovered problem was insufficient;

Page | 21

Janz N. Serrano complaint failed to give fair notice of legal theory under which action was proceeding, it failed to state that individual officers were being charged under owner and operator category of CERCLA and Massachusetts statutory liability, complaint did not properly state claim under common law, and condominium project owners failed to allege that individual officers participated in and exerted control over contamination of site. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 101 et seq., 42 U.S.C.A. 9601 et seq.; M.G.L.A. c. 21E, 5(a)(5). [6] KeyCite Citing References for this Headnote 170A Federal Civil Procedure 170AVII Pleadings and Motions 170AVII(A) Pleadings in General 170Ak633 Certainty, Definiteness and Particularity 170Ak636 k. Fraud, Mistake and Condition of Mind. Most Cited Cases Rule requiring pleading of fraud with particularity requires more than statement of mere conclusion that plaintiff has satisfied elements of given claim. Fed.Rules Civ.Proc.Rule 9(b), 28 U.S.C.A. *893 Carl K. King, Posternak, Blankstein & Lund, Boston, Mass., for plaintiffs. Robert S. Sanoff, Nicholas C. Theodorou, Foley, Hoag & Eliot, Boston, Mass., for defendants. MEMORANDUM AND ORDER KEETON, District Judge. This case concerns the alleged environmental contamination of a property in North Andover, Massachusetts, owned and developed by plaintiffs. Over a period of years, defendant corporations engaged in the storage and/or transfer of chemical solvents on a site adjacent to plaintiffs' property. A commercial condominium was created on plaintiffs' property in the fall of 1986. Now before the court are the following: (1) Defendants' Motion to Dismiss (Docket No. 7, filed December 17, 1990), together with a supporting memorandum (Docket No. 8, filed December 17, 1990); (2) Plaintiffs' Memorandum in Opposition (Docket No. 21, filed April 3, 1991); (3) Affidavit of Mark O. Henry and attached exhibits (Docket No. 22, filed April 3, 1991); and (4) Defendants' Reply Memorandum in Support of their Motion to Dismiss (Docket No. 23, filed May 1, 1991). At issue here is the motion of all defendants to dismiss plaintiffs' claim under Mass.G.L. c. 93A, and the motion of individual defendants Melvin L. Weiner, William E. Stilwell, Jr., Howard C.

West Headnotes [1] KeyCite Citing References for this Headnote 29T Antitrust and Trade Regulation 29TIII Statutory Unfair Trade Practices and Consumer Protection 29TIII(A) In General 29Tk139 Persons and Transactions Covered Under General Statutes 29Tk146 Trade or Commerce; Business Activity 29Tk146(1) k. In General. Most Cited Cases (Formerly 92Hk6 Consumer Protection) Massachusetts Consumer Protection Act did not apply to action brought by condominium project owners and developers against corporations which stored and/or transferred chemical solvents on adjacent property based on adjoining owners' failure to inform owners-developers of contamination of their own site in the absence of showing that condominium project owners-developers and adjacent site owners were engaged in any business transactions together. M.G.L.A. c. 93A, 1 et seq., 11. [2] KeyCite Citing References for this Headnote 170B Federal Courts 170BVI State Laws as Rules of Decision 170BVI(B) Decisions of State Courts as Authority 170Bk388 Federal Decision Prior to State Decision

Janz N. Serrano Cobin, and James F. Creen (the individual defendants) to dismiss all claims against them. added). This statement about the scope of section 11 was cited and restated by the First Circuit in V.S.H. Realty, Inc. v. Texaco, Inc., 757 F.2d 411, 416 (1st Cir.1985). On a strictly linguistic analysis, however, the significance of the statement in Manning is less helpful to defendants when one takes account of the full sentence from which the foregoing quotation is extracted: As this court has frequently stated, 11 of G.L. c. 93A was intended to refer to individuals acting in a business context in their dealings with other business persons, and not to every commercial transaction whatsoever. Manning, 444 N.E.2d, at 1263 (emphasis added). This passage was a restatement of past S.J.C. decisions. It did not imply that a new rule was being generated in Manning itself. Also, none of the three cases cited described the scope of section 11 as explicitly requiring a transactional business relationship between the parties. See Lantner, 373 N.E.2d at 976 (1978); Nader v. Citron, 372 Mass. 96, 360 N.E.2d 870, 871 (1977); PMP Associates v. Globe Newspaper Co., 366 Mass. 593, 321 N.E.2d 915, 917 (1975). It would thus seem inappropriate to interpret Manning as formally declaring an additional requirement for stating a claim under Chapter 93A. The full context also makes clear that the distinction made in Manning was between a transaction in a business context and a transaction not in a business context. Indeed, this has been the focus of the entire section 11 line of cases. As indicated by two more opinions on which the defendants rely, the question invariably has been whether parties to a transaction are engaged in trade or commerce, Nei v. Burley, 388 Mass. 307, 446 N.E.2d 674, 680, (1983), or whether a private individual's participation in [a given] transaction takes place in a business context. Begelfer v. Najarian, 381 Mass. 177, 409 N.E.2d 167, 176 (1980). All of these formulations take as an assumed premise that there was some transaction. The facts of the cases never presented a need to consider a different context. [2] Nevertheless, when no directly relevant precedents are available to guide this court's resolution of an issue of interpretation of a state statute, dicta (and even implied dicta ) in the state court opinions have substantial weight. Moreover, the assumed premise that, apart from claims of unfair competition, section 11 applies only between parties having some transactional business relationship is consistent with the development of Chapter 93A, enacted as a consumer protection act and later extended to the protection of business entities as well. The common thread is protection against unfair acts and practices in transactions. In view of the history of development of Chapter 93A and the lack of any precedent supporting plaintiffs' novel argument for an expansive reading that, to say the least, tests the limits of common sense, I conclude that the motion to dismiss the Chapter 93A claims in the plaintiffs' complaint must be allowed.

*895 II. Claims Against Individuals Defendants also attack the legal sufficiency of all claims against the four individual defendants. These claims are variously founded upon the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 107, codified at 42 U.S.C. 9607 (Counts I and II), Mass.G.L. c. 21E (Count III), and the common law actions of trespass and negligence (Counts IV, V, and IX).

I. Chapter 93A Claims Page | 22 [1] In Count VIII of their Verified Complaint (Docket No. 1, filed October 31, 1990), plaintiffs allege against each of the defendants (both corporate and individual) a claim under the Massachusetts Consumer Protection Act, Mass.G.L. c. 93A, 11. This is a bold and novel claim. Massachusetts courts have held repeatedly that section 11 extends Chapter 93A to the business context, Slaney v. Westwood Auto, Inc., 366 Mass. 688, 322 N.E.2d 768, 774-75 (1975), Lantner v. Carson, 374 Mass. 606, 373 N.E.2d 973, 976 (1978), but they have never applied Chapter 93A to a dispute between business entities whose only relationship arises from their ownership and use of neighboring properties. The primary theory is that defendants are liable because they failed to inform Cash Energy of the contamination of their own site when they discovered the problem in the fall of 1986-despite their alleged knowledge of Cash Energy's incipient plans for condominium development. Section 11 provides that: Any person who engages in the conduct of any trade or commerce and who suffers any loss of money or property, real or personal, as a result of the use or employment by another person who engages in any trade or commerce of an unfair method of competition or an unfair or deceptive act or practice declared unlawful by section two or by any rule or regulation issued under paragraph (c) of section two may, as hereinafter provided, bring an action.... *894 The statute on its face requires that both the injured party and the injuring party be engaged in the conduct of any trade or commerce. Plaintiffs argue that it does not require any business relationship between the parties. Defendants argue that Chapter 93A does not apply unless the parties share a business relationship. Memorandum in Support at pp. 5-7. Two different kinds of business relationship are apparent. First, the statutory phrase unfair method of competition suggests a competitive relationship; the complaint does not allege that such a relationship existed here. Second, the statutory phrase unfair or deceptive act suggests a relationship as parties to a transaction. The complaint does not allege such a relationship, and plaintiffs argue that it need not do so. Most helpful to the defendants is the statement by the Massachusetts Supreme Judicial Court (S.J.C.) that ... 11 of G.L. c. 93A was intended to refer to individuals acting in a business context in their dealings with other business persons,.... Manning v. Zuckerman, 388 Mass. 8, 444 N.E.2d 1262, 1263 (1983) (emphasis

A. Grounds for Claims Against Individuals in the Corporate Hierarchy [3] Traditional principles of corporate law preclude individual liability unless grounds are shown either for piercing the corporate veil or finding active personal involvement in a tortious act. My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 233 N.E.2d 748, 751-52 (1968); Marks v. Polaroid Corporation, 237 F.2d 428 (1st Cir.1956), cert. denied, 352 U.S. 1005, 77 S.Ct. 564, 1 L.Ed.2d 550 (1957). Plaintiffs proceed on the latter theory. [4] The governing standard has been stated in this way: What is required is some showing of direct personal involvement by the corporate officer in some decision or action which is causally related to plaintiff's injury. Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 907 (1st Cir.1980). It may be sufficient that the record indicates an issue of fact concerning [the officer's] possible involvement in matters that might have caused the plaintiff's injury, Mangual v. General Battery Corp., 710 F.2d 15, 20 (1st Cir.1983), or concerning whether the officer is the guiding spirit in the tortious affair, Marks, 237 F.2d at 435. Nonetheless, a problem remains as to what level of specificity of allegations of involvement and causation is required to survive a motion to dismiss. CERCLA and analogous statutes have established new bases for legal responsibility-that is, bases beyond the two accepted at common law. If different, the standard for establishing liability under Chapter 21E may be lower than under CERCLA, because the state statute, in addition to applying to all those covered by CERCLA, may apply to persons who otherwise cause, or are legally responsible for a release or threat of release. Mass.G.L. c. 21E, 5(a)(5). For the present, however, I assume (as do all parties) that, at least in relation to matters relevant here, the same standard governs CERCLA and Chapter 21E. This assumption is quite plausible, for courts have consistently interpreted the state statute as conforming with CERCLA. E.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146 (1st Cir.1989). Both CERCLA and Chapter 21E apply to the current owner and operator of the site, and plaintiffs attempt to place the individual defendants in this category. The meaning of owner and operator is

Janz N. Serrano in dispute. A number of courts have held that the crucial characteristic identifying a person or entity as coming within the phrase owner and operator is the authority to control the handling and disposal of hazardous substances. United States v. Northeastern Pharmaceutical & Chemical Co. (NEPACCO), 810 F.2d 726, 743 (8th Cir.1986); see Kelley ex rel. Michigan Natural Page | 23 Resources Comm'n v. Arco Industries Corp., 723 F.Supp. 1214, 121820 (W.D.Mich.1989) (collecting cases). Though defendants suggest otherwise, the fact that the corporate officer in NEPACCO personally participated in the tortious conduct was not essential to the holding. The Kelley test does not require, as defendants suggest, evidence of responsibility undertaken for waste disposal practices, Reply Memorandum at p. 3, though it does list examples of such evidence as useful factors to be weighed. Many of the court opinions discussed in Kelley appear to say that the mere ability to exercise control will suffice, because the object of the inquiry is whether the individuals had the capacity to prevent the harm. Other courts, however, have held that more than mere ability to exercise control is required to support the conclusion that a party is liable. *896 Rockwell International v. IU International, 702 F.Supp. 1384, 1390 (N.D.Ill.1988); see Wellesley Hills Realty Trust v. Mobil Oil, 747 F.Supp. 93 (D.Mass.1990). For reasons to be explained below, I conclude that I can and should rule on the present motion to dismiss without resolving this disputed issue regarding the nature and degree of control essential to a claim against a corporate officer individually. In any event, an issue remains regarding specificity of pleading. Department of Environmental Protection (formerly the Department of Environmental Quality Engineering). The documents tend to show that all four individual defendants were actively involved in the clean-up of the contaminated site at some time between 1987 and the present. In addition, they tend to show that one of them, Mr. Stephen Weiner, was actively involved in chemical storage on the North Andover site as far back as 1978. To these facts, the affidavit adds Mr. Henry's personal belief that all four were actively involved at all relevant times, Henry Affidavit 9, and relates the experiences upon which he bases this belief. Henry Affidavit 3, 4, 5. Defendants argue persuasively that the Henry affidavit may not be considered in ruling on the Motion to Dismiss. A 12(b)(6) motion is ordinarily judged on the pleadings alone. 5A C. Wright and A. Miller, Federal Practice and Procedure: Civil 2d 1356 (1990). In an action involving a claim as serious as individual liability under CERCLA, plaintiffs should be given an incentive to plead thoroughly and carefully from the outset. In appropriate circumstances, plaintiffs may be allowed to amend an initial complaint, but I express no opinion now as to whether allegations such as those in the affidavit would be adequate even if they were included in an amended complaint. It remains to be seen whether the allegations in the complaint alone are adequate to state the various claims. The crucial paragraph 48 is flawed in several important respects. The first flaw is a failure to give fair notice of the legal theory under which the action is proceeding. With regard to the statutory claims, it fails to state that the individual defendants are being charged under the owner and operator category of CERCLA and Chapter 21E liability. With regard to the common law claims, it fails to inform defendants that plaintiffs are attempting to show personal involvement, rather than to justify piercing the corporate veil. Furthermore, even if the legal theory may be inferred, the complaint does not properly state a claim under the common law. What must be shown is not simply active participation in the affairs of the corporations, but that each participated in the relevant tortious affair, and that the conduct of each constituted a legal cause of the harm of which plaintiffs are complaining. Finally, and most fundamentally, plaintiffs' complaint rests heavily on bald assertion. Plaintiffs fail utterly to state or outline the facts beneath their allegations *897 that individual defendants participated in and exerted control over the contamination of the North Andover site. In response to defendants' criticism that the complaint rests on bald assertion, plaintiffs point to the modest pleading requirements of the Federal Rules. This response touches on a basic tension among federal pleading rules-a tension that bears further examination. C. Standards of Particularity Breaking sharply from the earlier practice of fact pleading, the Federal Rules of Civil Procedure, effective in 1938, embody a principle of summary pleading. The short and plain statement of facts prescribed in Rule 8(a) has been interpreted to require only that the plaintiffs give the defendant[s] fair notice of what the plaintiff[s'] claim is and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957); see also Ballou v. General Electric, 393 F.2d 398, 399 (1st Cir.1968). And the generous policy of amendment mandated by Rule 15 further promotes the aim that disputes be decided on the merits. United States v. Hougham, 364 U.S. 310, 316, 81 S.Ct. 13, 17, 5 L.Ed.2d 8 (1960); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Even within the Federal Rules, however, the seeds of a countervailing tendency are sown. First, Rule 9(b) explicitly recognizes an exception for allegations of fraud and mistake, where a higher standard of particularity is required. Second, Rule 8(f), stating that all pleadings shall be construed so as to do substantial justice, may be read as requiring judges to exercise some degree of discretion rather than invariably applying the general rule of notice pleading. Third, the Rules provide for a motion for more definite statement as a formal method of challenging a pleading that is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading. Fed.R.Civ.P. 12(e). This Rule authorizes the court, upon failure to obey its order for a more definite statement, to strike the pleading to which the motion was directed or make such order as it deems just. Id. This Rule has been invoked infrequently. More often, a court concluding that a complaint fails particularity requirements either enters an interlocutory order dismissing the complaint, but allowing leave to amend within a specified time, or allows leave to amend and defers ruling on the motion to dismiss. Either type of order has an effect closely analogous to that of an order pursuant to Rule 12(e) that unless a more definite statement is filed within a specific time a further appropriate order will be entered. If a complaint were stricken because of noncompliance with an order for more definite statement, dismissal would be an obvious possibility. [6] Rule 9(b) requires more than the statement of a mere conclusion that the plaintiff has satisfied the elements of a given claim. See McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 (1st Cir.1980) (collecting cases). Beneath the higher particularity requirement, here as elsewhere, rests a concern about abusive use of legal processes. The rule operates to diminish the possibility that a plaintiff with a largely groundless claim [will be able] to simply take up the time of a number of other people [by extensive discovery], with the right to do so representing an in terrorem increment of the settlement value, rather than a reasonably founded hope that the process will reveal relevant evidence.... Ross v. A.H. Robins Co., 607 F.2d 545 (2d Cir.1979) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741, 95 S.Ct. 1917, 1928, 44 L.Ed.2d 539 (1975)).

B. The Uninformative Complaint [5] All of the claims against the individual defendants hinge upon paragraph 48 of the complaint, alleging that at all relevant times, the four officers actually participated in and exercised control over the affairs of one or more of the Service Chemical [corporate] Defendants. Defendants characterize this allegation as a bald, non-specific assertion. Motion to Dismiss, p. 3. Plaintiffs contend that, read in conjunction with the description of Service Chemical Defendants' activities in 18, 19, and 23, and the description of the corporate officers' positions in 11-14, it is sufficient to allege a prima facie case under the federal statute, the state statute, and the common law. To bolster their position, plaintiffs moved for discovery the day following the filing of the Motion to Dismiss. Discovery having been stayed pending decision on the Motion to Dismiss (see Memorandum and Order, Docket No. 18, March 13, 1991), they instead submitted along with their Memorandum in Opposition the Henry affidavit and attached exhibits. The Henry affidavit was accompanied by two batches of documents culled from the public records of the Massachusetts

Over time, the exception for fraud has been extended to a number of analogous areas involving statutory causes of action, where the original concern about opportunities for abuse inherent in the freedom to plead conclusions rather than facts applies with like force. New exceptions also have been created independently in Page | 24 areas where reasons for requiring particularity are especially compelling. Occasional decisions had invoked higher particularity requirements well before the onset of the modern civil rights era. See, e.g., United Grocer's Company v. Sau-Sea Foods, Inc., 150 F.Supp. 267 (S.D.N.Y.1957); and cases collected*898 in 5A Wright and Miller, 1357, nn. 16-21. But it was in the area of civil rights that courts first systematically developed requirements for particularity, or specificity, a term also used with no apparent suggestion of different meaning. Apart from the fraud exception prescribed in Rule 9(b), the most frequently occurring context in which specificity of pleading requirements are imposed remains civil rights litigation. This development was well under way before courts or commentators paid much, if any, attention to the tension between Rule 8 and the specificity requirements that precedents were developing in civil rights cases. Though Rule 8(b)'s call for construing pleading rules to achieve substantial justice and Rule 12(e)'s provisions regarding motions for more definite statement might have been thought to support these decisions, opinions were not reasoned on this ground. As claims under 42 U.S.C. 1983 began to be presented in significant volume, increasingly distinctive requirements of specificity of pleading appeared in circuit court opinions. See Powell v. Workmen's Compensation Bd., 327 F.2d 131 (2d Cir.1964) (upholding the dismissal for lack of specificity of allegations that Workmen's Compensation Bd. conspired to deprive plaintiff of constitutional rights); Moran v. Bench, 353 F.2d 193 (1st Cir.1965); Negrich v. Hohn, 379 F.2d 213 (3d Cir.1967). For numerous reaffirmations of this policy in the First Circuit, see, e.g., The Dartmouth Review v. Dartmouth College, 889 F.2d 13 (1st Cir.1989); Johnson v. General Elec., 840 F.2d 132, 138 (1st Cir.1988); Oliver v. Digital Equipment Corp., 846 F.2d 103, 108, 111 (1st Cir.1988); Serrano v. Torres, 764 F.2d 47 (1st Cir.1985); Dewey v. University of New Hampshire, 694 F.2d 1 (1st Cir.1982); Manego v. Cape Cod Five Cents Savings Bank, 692 F.2d 174, 177 (1st Cir.1982); Glaros v. Perse, 628 F.2d 679 (1st Cir.1980); Leonardo v. Moran, 611 F.2d 397 (1st Cir.1979); Fisher v. Flynn, 598 F.2d 663 (1st Cir.1979); Slotnick v. Staviskey, 560 F.2d 31 (1st Cir.1977), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978); Kadar Corp. v. Milbury, 549 F.2d 230 (1st Cir.1977); O'Brien v. Di Grazia, 544 F.2d 543, 546 n. 3 (1st Cir.1976). This development may be understood as the response of the court system to the large percentage of wholly unfounded claims that came into the system as excess baggage along with claims that were meritorious, and claims that were genuinely disputable and thus appropriate for full adjudication.

The trend toward the requirement of higher standards of particularity has accelerated in recent years. Two reasons are apparent. First, the rising cost of litigation has made threats of false claims on the one hand, and false defenses on the other, more powerful weapons of intimidation. This tendency increases both the temptation for parties and their attorneys to wield the weapon and the resulting harm to other parties when the temptation proves irresistible. Second, given the worsening caseload crisis in the federal courts, every additional frivolous claim or defense impairs the quality of justice in the system as a whole. See Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir.1984). The most widely accepted extension of the Rule 9(b) exception by analogy is to areas of securities law other than those regulated by Rule 9(b) itself. See Fleming v. Lind-Waldock & Co., 922 F.2d 20 (1st Cir.1990); Lefkowitz v. Smith Barney, Harris Upham & Co., 804 F.2d 154 (1st Cir.1986); Wayne Investment, Inc. v. Gulf Oil Corp., 739 F.2d 11, 13-14 (1st Cir.1984); Segal v. Gordon, 467 F.2d 602 (2d Cir.1972); Duane v. Altenburg, 297 F.2d 515 (7th Cir.1962); In re Elscint, Ltd. Securities Litigation, 674 F.Supp. 374 (D.Mass.1987). It is but a short leap from securities litigation to claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), where mail and wire fraud may constitute predicate acts. Moreover, the opportunity for abusive pleading may be even greater in RICO cases, because of the severity of the remedies provided. Saine v. A.I.A., Inc., 582 F.Supp. 1299 (D.Colo.1984). Not surprisingly, a specificity standard appears to be developing. It should be noted, however, that some courts have *899 allowed further discovery before dismissal where the complaint at least does allege facts sufficient to support a reasoned inference that most of the relevant evidence is uniquely within the control of the defendants. See New England Data Services, Inc. v. Becher, 829 F.2d 286 (1st Cir.1987) (collecting cases). In addition, in a number of circuits, labor law decisions require a higher measure of particularity in complaints alleging breach of a union's duty of representation, with the effect of depriving union members of their rights. See Lusk v. Eastern Products Corporation, 427 F.2d 705, 708 (4th Cir.1970); Balowski v. International U., United A., A. & A. Imp. Wkrs., 372 F.2d 829, 835 (6th Cir.1967); Hardcastle v. Western Greyhound Lines, 303 F.2d 182, 186 (9th Cir.1962), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229. Yet another instance of a court's demanding specificity in the allegation of a claim that might be characterized as an analogy to fraud is the recent First Circuit decision on the Petroleum Marketing Practices Act, Gooley v. Mobil Oil, 851 F.2d 513 (1st Cir.1988). In several areas that do not involve fraud, or even analogies to fraud by any stretch of the imagination, courts have nonetheless developed higher standards of particularity in pleading. In each of

Janz N. Serrano these areas, increased specificity may be seen to promote substantial justice. Some of these areas have been identified as appropriate for a strict standard of particularity of pleading because of a heightened concern for due process which arises by reason of the drastic nature of the remedies sought. United States v. Pole No. 3172, 852 F.2d 636, 638 (1st Cir.1988) (forfeiture of property bought with proceeds from drug trafficking). See also $38,000 in United States Currency, 816 F.2d 1538, 1548 (11th Cir.1987); United States v. $39,000 in Canadian Currency, 801 F.2d 1210, 1219 (10th Cir.1986). The drastic nature of the remedy invoked may have been a reason underlying the development of a specificity standard in antitrust cases, which (like RICO cases) offer the prospect of treble damages. Another cause for concern has been the unusually high cost of antitrust litigation. Sutliff, 727 F.2d at 654. For recent decisions illustrating this trend in antitrust litigation, see Sutliff, 727 F.2d at 648; University Life Ins. Co. v. Unimarc Ltd., 699 F.2d 846, 852 (7th Cir.1983); In re Plywood Antitrust Litigation, 655 F.2d 627, 641 (5th Cir.1981), cert. granted on other grounds, and dismissed at 462 U.S. 1125, 103 S.Ct. 3100, 77 L.Ed.2d 1358 (1983). In the First Amendment context, the Ninth Circuit has held that a complaint that asserts mere conclusions will not suffice to bar a party's right to associate and to petition an administrative agency. Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Bd. of Culinary Workers, 542 F.2d 1076, 1085 (9th Cir.1976). One more area where specificity has been invoked by the First Circuit is in actions under the Federal Tort Claims Act. Here, however, the court has sent mixed signals. Compare K.W. Thompson Tool Co. v. U.S., 836 F.2d 721, 728 (1st Cir.1988) (upholding the dismissal of allegations based in part upon their lack of specificity) with DiMella v. Gray Lines of Boston Inc., 836 F.2d 718, 721 (1st Cir.1988) (reversing the dismissal of allegations based upon their lack of specificity). Policy concerns underlying the development of specificity standards in particular areas of the law have influenced, as well, the amendment of rules of procedure bearing upon attorney and party responsibility for representations made in pleadings and in discovery demands and responses. Amendments of Rule 11 of the Federal Rules of Civil Procedure illustrate the point. They are also relevant to the appropriate disposition of the present matter, because any amendment alleging a factual basis for a claim must, of course, be certified by the signature of a party or attorney pursuant to Rule 11. In summary, by the fiftieth anniversary of the Federal Rules of Civil Procedure in 1988, the rules of pleading had become less generous and forgiving than they were in *900 1938. The trend continues. Particularity is more often demanded. Discovery is less

Janz N. Serrano often allowed before the pleader is required to allege at least an outline or summary of facts sufficient under the applicable substantive law to support a claim on which relief can be granted, or a defense on which judgment can be entered. There is a danger that this tendency will be carried too far. The Page | 25 First Circuit's decision in New England Data Services, Inc. v. Becher explicitly takes account of the need to strike a balance among the conflicting interests at stake. A specificity standard for pleading must protect against the misuse of frivolous claims without excluding claimants who lack access to the most cogent evidence that would support their claims but nonetheless can allege a reasonable basis for believing that it exists. In some instances, a person is unable to allege with specificity precisely because the relevant evidence is in the exclusive possession of the opponent, who will not disclose except under the compulsion of court sanctioned discovery processes. The First Circuit has observed: Where there are multiple defendants ... and where the plaintiff was not directly involved in the alleged transaction, the burden on the plaintiff to know exactly [the factual basis of an alleged claim] ... is not realistic. New England Data Services, 829 F.2d at 291. In the context of RICO mail and wire fraud, the First Circuit concluded that courts should refrain from automatic dismissal of inadequate complaints, and should instead make a determination as to whether a sufficient factual basis to warrant the allowance of discovery has been alleged. Is CERCLA yet another area where a high standard of particularity will be required? Although an analogy to fraud is strained, CERCLA involves many of the circumstances that have led courts to invoke higher standards of specificity in other contexts. The consequences of individual liability for an environmental violation may be severe. Even more relevant to the present issue is the fact that defending against a non-meritorious claim-even one that upon reasonable inquiry could be determined to be patently non-meritorious-can be very expensive. The cost of establishing that a claim lacks merit is more likely to be subject to reasonable controls if some standard of specificity of pleading is enforced. I conclude that it is a reasonable prediction that higher courts, including the First Circuit, will extend specificity of pleading requirements to CERCLA cases, with appropriate subsidiary conditions such as were fashioned in New England Data Services. Unless and until guidance to the contrary appears in legislation or precedent, I will so rule. (2) The claims against individual defendant in Counts I, II, III, IV, V, and IX will be dismissed unless, on or before July 31, 1991, plaintiffs file an amended complaint that pleads at least an outline or summary of the factual basis for the claims rather than mere conclusions. D.Mass.,1991. Cash Energy, Inc. v. Weiner 768 F.Supp. 892, 60 USLW 2054, 22 Envtl. L. Rep. 20,658 Motions, Pleadings and Filings (Back to top) 1:90cv12624 (Docket) (Oct. 31, 1990)

ORDER For the foregoing reasons, it is ORDERED: (1) Defendants' Motion to Dismiss (Docket No. 7) is granted with regard to Count VIII of the Verified Complaint.

Circuit Court of Appeals, Sixth Circuit. BLAIR et al. v. DURHAM. Page | 26 No. 9281. April 9, 1943. Appeal from the District Court of the United States for the Middle District of Tennessee; Elmer D. Davies, Judge. Action by Nelle B. Durham against Algernon Blair, doing business as Algernon Blair Construction Company, and another, to recover for injuries sustained when a board fell from an interior scaffold and struck plaintiff. From a judgment for plaintiff, defendants appeal. Affirmed.

241II Computation of Period of Limitation 241II(H) Commencement of Proceeding; Relation Back 241k127 Amendment of Pleadings 241k127(2) Amendment Restating Original Cause of Action 241k127(5) k. Actions for Injuries to the Person. Most Cited Cases Where original complaint alleged that plaintiff's injuries were caused by negligence of defendants' employees in use of interior scaffold, amended complaint, filed more than one year from date of injury, which alleged that injuries were due to negligent manner in which scaffold was constructed but which disclosed same injury and violation of same obligation, did not allege a new cause of action for such injury within the bar of Tennessee one year statute of limitations. Code Tenn.1932, 8595; Federal Rules of Civil Procedure, rule 15(a, b), 28 U.S.C.A. following section 723c. [4] KeyCite Citing References for this Headnote 170B Federal Courts 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)6 Harmless Error 170Bk893 k. Particular Errors as Harmless or Prejudicial. Most Cited Cases (Formerly 106k406(1)) Where plaintiff's cause of action was not barred by Tennessee one-year statute of limitation, defendant was not adversely affected by District Court ruling that defendant's absence from state should not be taken as a part of time limited, and Circuit Court of Appeals would not consider any alleged error in such ruling by reason of plaintiff's failure to plead and prove such absence. Code Tenn. 1932, Sec. 8581. [5] KeyCite Citing References for this Headnote 231H Labor and Employment 231HI In General 231Hk22 Nature, Creation, and Existence of Employment Relation 231Hk26 k. Borrowed Servant Doctrine in General. Most Cited Cases (Formerly 255k301(4) Master and Servant) Under the loaned servant doctrine, when one lends his servant to another for a particular employment, servant, for anything done in that employment, must be dealt with as servant of one to whom he is lent, although he remains general servant of person who lent him. [6] KeyCite Citing References for this Headnote 231H Labor and Employment 231HXVIII Rights and Liabilities as to Third Parties

Janz N. Serrano 231HXVIII(B) Acts of Employee 231HXVIII(B)1 In General 231Hk3028 Relation of Parties 231Hk3038 Borrowed Servants 231Hk3038(2) k. Particular Cases. Most Cited Cases (Formerly 255k301(4) Master and Servant) 272 Negligence KeyCite Citing References for this Headnote 272XVII Premises Liability 272XVII(G) Liabilities Relating to Construction, Demolition and Repair 272k1205 Liabilities of Particular Persons Other Than Owners 272k1205(1) k. In General. Most Cited Cases (Formerly 272k54) Under Tennessee law where construction company was original party to erection of interior scaffold and first used such scaffold, and other artisans thereafter used scaffold, and there was no lending of employees, loaned servant doctrine was inapplicable and construction company had such interest in scaffold as a joint adventurer with other artisans, that parties were liable for injuries resulting from scaffold either jointly or severally. [7] KeyCite Citing References for this Headnote 272 Negligence 272XVIII Actions 272XVIII(C) Evidence 272XVIII(C)5 Weight and Sufficiency 272k1667 Premises Liability 272k1672 k. Liabilities Relating to Construction, Demolition and Repair. Most Cited Cases (Formerly 272k134(5.1), 272k134(5)) In action by office worker against contractor for injuries sustained when board fell from interior scaffold erected by contractor, evidence sustained finding that scaffold was negligently constructed and maintained. [8] KeyCite Citing References for this Headnote 272 Negligence 272XVII Premises Liability 272XVII(G) Liabilities Relating to Construction, Demolition and Repair 272k1205 Liabilities of Particular Persons Other Than Owners 272k1205(6) Contractors 272k1205(7) k. In General. Most Cited Cases (Formerly 255k319 Master and Servant) Under Tennessee law, where contractor negligently constructed interior scaffold so that material could fall therefrom upon persons working underneath, evidence that at time of injury to plaintiff, an office worker, scaffold was being used solely by contractor's subcontractor, and that board which fell and struck

West Headnotes [1] KeyCite Citing References for this Headnote 13 Action 13I Grounds and Conditions Precedent 13k1 k. Nature and Elements of Cause of Action and Suspension of Remedies. Most Cited Cases A cause of action is the unlawful violation of a right or failure to discharge a duty which facts show, and variety of facts alleged does not establish more than one cause of action so long as result is a violation of but one right by a single legal wrong. [2] KeyCite Citing References for this Headnote 302 Pleading 302VI Amended and Supplemental Pleadings and Repleader 302k242 Amendment of Declaration, Complaint, Petition, or Statement 302k248 New or Different Cause of Action 302k248(2) k. What Constitutes New Cause in General. Most Cited Cases An amendment to complaint does not set up a new cause of action so long as cause of action alleged grows out of same transaction and is basically the same or is identical in essential elements upon which right to sue is based and upon which defendant's duty to perform is alleged to have arisen. [3] KeyCite Citing References for this Headnote 241 Limitation of Actions

plaintiff had been placed in air duct by employee of subcontractor and was caused to fall by vibration from riveting being done on air duct, did not relieve contractor from liability. [9] KeyCite Citing References for this Headnote Page | 27 231H Labor and Employment 231HXVIII Rights and Liabilities as to Third Parties 231HXVIII(C) Work of Independent Contractor 231Hk3158 Hazardous Work 231Hk3160 k. Construction Cases. Most Cited Cases (Formerly 255k319 Master and Servant) Under Tennessee law when a contractor for repair or construction of a building employs a subcontractor to do work upon it which, from its nature, is likely to render premises dangerous to person who may come lawfully upon it, contractor is not relieved by reason of his subcontracting the work, from obligation of seeing that due care is used to protect persons lawfully on premises. [10] KeyCite Citing References for this Headnote 272 Negligence 272XVII Premises Liability 272XVII(G) Liabilities Relating to Construction, Demolition and Repair 272k1205 Liabilities of Particular Persons Other Than Owners 272k1205(6) Contractors 272k1205(7) k. In General. Most Cited Cases (Formerly 255k322 Master and Servant) Contractor who erected interior scaffold should have known that use of scaffold without proper guards to prevent objects from falling therefrom would render work inherently and necessarily dangerous, and he had duty either to require subcontractor to furnish sufficient protection around scaffold to avoid injury to those working beneath it, or take such precaution himself. [11] KeyCite Citing References for this Headnote 272 Negligence 272XVII Premises Liability 272XVII(G) Liabilities Relating to Construction, Demolition and Repair 272k1205 Liabilities of Particular Persons Other Than Owners 272k1205(6) Contractors 272k1205(7) k. In General. Most Cited Cases (Formerly 272k50) Where contractor erected scaffold for use in installation of air duct within building and took no precautions to prevent objects from falling from scaffold upon persons working underneath, under Tennessee law contractor was liable to office worker injured when board which was being used by subcontractor in measuring spacing of air duct fell from scaffold.

*730 John Bell Keeble, of Nashville, Tenn. (Keeble & Keeble, of Nashville, Tenn., on the brief), for appellants. John J. Hooker, of Nashville, Tenn. (David P. Murray, of Jackson, Tenn., and Walker & Hooker, of Nashville, Tenn., on the brief), for appellee. Before HICKS, SIMONS, and HAMILTON, Circuit Judges.

Janz N. Serrano moved to dismiss the amended complaint on the ground it stated a new cause of action and was barred by the Tennessee Statute of Limitation of one year. (Code of Tennessee, Sec. 8595.). Said motion was overruled by the court. On retrial, the jury returned a verdict on behalf of plaintiff for $6,500. Appellants assign the following points: 1. Appellee's amended complaint was barred by the one-year statutory period of limitation. 2. That the court erred in ruling that Section 8581 of the Tennessee Code made inapplicable the one-year statutory period of limitation, because each of the appellants had resided out of the State of Tennessee, and each was absent from the State of Tennessee and was a resident of another state at the time appellee's cause of action accrued, and 3. The court erred in failing to direct the jury peremptorily to find for appellants. Rule 15(a) of the Rules of Civil Procedure, 28 U.S.C.A.following section 723c, provides that a party may amend his pleadings by leave of court, which leave shall be freely given when justice so requires at any time during the proceedings, and subsection (c) of the rule provides that whenever the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleadings, the amendment relates back to the date of the original pleading. The issue here as to whether the statute of limitations was tolled by the original complaint depends upon whether the amendment stated a new cause of action. [1] A cause of action is the unlawful violation of a right or failure to discharge a duty which the facts show. The variety of facts alleged does not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. A multiplicity of grounds of negligence alleged as causing the same injury does not result in pyramiding as many causes of action as separate allegations of actual negligence. [2] An amendment does not set up a new cause of action so long as the cause of action alleged grows out of the same transaction and is basically the same or is identical in the essential elements upon which the right to sue is based and upon which defendant's duty to perform is alleged to have arisen. As long as plaintiff adheres to a legal duty breached or an injury originally declared on, an alteration of the modes in which defendant has breached the legal duty or caused the injury is not an introduction of a new cause of action. The true test is whether the proposed amendment is a different matter or the same matter more fully or differently laid.

HAMILTON, Circuit Judge. Appellant, Algernon Blair, doing business as the Algernon Blair Construction Company, was general contractor for the repair of and improvements, on the United States Post Office, Customs House and United States Court Building in the city of Nashville, Tennessee, and appellant, C. W. Roberts, was the Superintendent and Manager for his co-appellant. The work was being done while the building was occupied and in use by officers and employees of the United States. On or about August 17, 1938, appellee, Nelle B. Durham, a stenographic clerk in the Social Security Division in the office of the Collector of Internal Revenue, while at work in one of the rooms where the rebuilding under appellant's contract was going on, was struck in the head and injured by a heavy piece of timber falling from a scaffold. Appellee originally filed this action on January 14, 1939, and alleged in her complaint that by reason of the negligence and carelessness of defendants, their agents and servants in handling certain heavy timbers on and about the scaffolding that was erected in the office in which the plaintiff was working, a large and heavy piece of board approximately 2x4 inches in width and thickness and about 3 feet long was permitted to fall from said scaffolding, which was about 10 feet above the floor, and onto plaintiff's head with great force and violence injuring her. Issue was joined on this complaint and the cause came on for trial before a jury. In the course of the trial on August 15, 1940, appellee with the consent of the court filed an amended complaint alleging the same facts with the following revision: The defendant had erected said scaffolding and provided it for the use of persons *731 engaged in the installation of air-conditioning equipment in said building and said scaffold was erected in such a manner that it did not protect persons, including the plaintiff, who were required to work thereunder, but was erected in such a manner that the defendants might have reasonably anticipated that heavy objects would be likely to fall therefrom. At the time the amendment was filed, the empanelling of the jury was set aside and the cause continued. Thereupon appellants

A comparison between the appellee's original complaint and the amendment leaves no room for doubt that in both she relies on the same unlawful violation of a duty which appellants owed her at the place and in the position where she worked. [3] The original complaint which alleged that appellee's Page | 28 injuries were due to the negligence of appellant's employees in the use of the scaffold states no different cause of action as respects limitation than the amended complaint which stated that her injuries were due to the negligent manner in which the scaffold was constructed, because the two acts alleged were but different invasions of appellee's primary right and different breaches of the same duty. There was but one injury and it is immaterial whether it resulted from the negligence of the users of the scaffold or from its construction, since in either case it was a violation of the same obligation. Missouri, Kansas & Texas Railway Company v. Wulf, 226 U.S. 570, 576, 33 S.Ct. 135, 57 L.Ed. 355; New York Central & Hudson River Railroad Company v. Kinney, 260 U.S. 340, 346, 43 S.Ct. 122, 67 L.Ed. 294; Maty v. Grasselli Company, 303 U.S. 197, 199, 58 S.Ct. 507, 82 L.Ed. 745; Cincinnati, N.O. & T.P. Railway Company et al. v. Gray, 6 Cir., 101 F. 623, 50 L.R.A. 47; Clinchfield R. Co. v. Dunn, 6 Cir., 40 F.2d 586, 74 A.L.R. 1276; Atwood v. National Bank of Lima, 6 Cir., 115 F.2d 861. *732 [4] The trial court ruled that the question of whether a new cause of action was stated by the amendment to appellee's complaint was immaterial in view of Section 8581 of the Code of Tennessee, which provides that while the defendant is absent from or a non-resident of the state for a certain period, the time of such absence or non-residence shall not be taken as any part of the time limited for the commencement of the action. Appellants insist that in order to come within the terms of Section 8581, appellee must plead and prove such absence or non-residence and further that there was neither pleading nor proof to support the trial court's ruling on this issue. In view of the fact that we have concluded that appellee's cause of action was not barred by the one-year statute of limitations, the rights of appellants are in no way adversely affected by the ruling of the trial court, therefore, we do not give consideration to this assigned error. City of San Juan v. St. John's Gas Company, 195 U.S. 510, 520, 25 S.Ct. 108, 49 L.Ed. 299, 1 Ann.Cas. 796; Lazarus v. Phelps, 156 U.S. 202, 206, 15 S.Ct. 271, 39 L.Ed. 397; Struthers v. Drexel, 122 U.S. 487, 495, 7 S.Ct. 1293, 30 L.Ed. 1216. Appellants urge three grounds in support of their contention that the trial court should have peremptorily instructed the jury to find for them, (1) that the scaffold in question was constructed by the Farwell Company, appellant Blair's sub-contractor, the work being done by the employees of appellant Blair and under the supervision of appellant Roberts, and that the rule of the loaned servant applies, (2) that the uncontradicted evidence shows that appellants were free from negligence in building and maintaining the scaffold in question, (3) that at the time of the injury to appellee, the scaffold in question was in the sole use and exclusive

supervision of the Farwell Company, an independent contractor of appellant, Algernon Blair. [5] The loaned servant doctrine is defined to be that when one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent although he remains the general servant of the person who lent him. Powell v. Construction Company, 88 Tenn. 692, 13 S.W. 691, 694, 17 Am.St.Rep. 925. In our opinion this rule has no application to the undisputed facts in the case at bar. The evidence shows that the scaffold was constructed by carpenters employed by appellant, Algernon Blair Construction Company, supervised by the construction superintendent of that company with the specifications for the scaffold outlined generally by the superintendent of the Farwell Company. The expense of building the scaffold was borne by the Farwell Company and the other sub-contractors working on this job who also used the scaffold. The appellant, Algernon Blair Construction Company, first used the scaffold for digging out plaster through the ceiling to permit the duct to go behind the plaster for the installation of the air cooling system. This was done in the room where appellee was injured and for this work appellants used a tarpaulin to keep debris, tools or appliances from falling on those working immediately under the scaffold. [6] There was no lending of employees by appellants in the case at bar. Appellant, Algernon Blair was the promoter or the original party to the enterprise. He had an interest therein as a joint adventurer with the others who used the scaffold in their part of the work. The facts in the case leave no room for doubt that a joint venture was intended and created by the parties. It follows from this that the liability of the parties was either joint or several. Swain v. Tennessee Copper Company, 111 Tenn. 430, 78 S.W. 93. [7] Appellant's insistence that there is no evidence in the record showing that the scaffold was negligently constructed and maintained is without support. Some of the witnesses testified that the edges of the scaffold were flush with its floor and that there was no shield to keep objects from falling therefrom. Others testified there was a toe-board at the edge of the scaffold. The uncontradicted evidence shows that in the normal course of the work, the platform of the scaffold would be used as a place for strong tools and material and that it might reasonably have been foreseen by the builders of the scaffold that these tools and building materials would fall and injure some of the workers underneath the scaffold, unless precautions were taken to avoid such possibility. The evidence on this issue made it a question for the jury. [8] It is true that the evidence shows that at the time appellee was injured, the scaffold in question was being used solely by

Janz N. Serrano appellant's sub-contractor, Farwell *733 Plumbing & Heating Company, and that an employee of that company who had been using the piece of timber for spacing and lining up the air duct, placed it in the air duct and it was caused to fall therefrom by vibration from riveting being done on the duct. However, these facts do not relieve appellants from liability under the applicable law of Tennessee. [9] [10] It must be remembered that the work of appellee and of her associate workers were made dangerous and their situation perilous, not from the nature of the work contracted to be done on the building, but from the manner in which appellants insisted upon doing it while appellee was working. Appellants should have known that using the scaffold without proper guards to prevent objects from falling therefrom, would render the work inherently and necessarily dangerous. The rule applies that when a contractor for the repair or construction of a building employs a sub-contractor to do work upon it which, from its nature, is likely to render the premises dangerous to persons who may come lawfully upon it, the contractor is not relieved by reason of his sub-contracting the work from the obligation of seeing that due care is used to protect persons lawfully on the premises. The use of the scaffold in question without guards was inherently dangerous under the circumstances and appellee had the right to expect that the premises would be made reasonably safe for her insofar as the use of the scaffold in the work was concerned. It was the duty of the general contractor to have required the sub-contractor to furnish sufficient protection around the scaffold to avoid injury to those working beneath it, or to have taken such precaution himself. The case of Smith v. Bank of Commerce & Trust Company, 135 Tenn. 398, 186 S.W. 465, 18 A.L.R. 788, relied on by appellants, is not controlling here. In the cited case, a contract was entered into between an engineering company and the bank for the construction of an annex to a building and the repair and remodeling of the old part of the structure. In the course of the work, a hot rivet was dropped by an employee of the contractor on a pedestrian on the street severely injuring her. She sought to hold the owner of the building liable for the negligence of its contractor. The court denied her relief on the ground that the negligent act of the contractor was only incidental to, or a collateral detail of, the work, and not a necessary and natural result which the owner of the building might have reasonably anticipated. In the case at bar, the contractor set in motion the event which ultimately resulted in appellee's injuries. [11] According to the evidence of the appellee, the defect which occasioned her injury resulted directly from the acts of appellants. The dropping of the timber was not purely collateral to the work which appellants had sub-contracted to be done. In the case of McHarge v. Newcomer & Co., 117 Tenn. 595, 100 S.W. 700, 9 L.R.A.,N.S., 298, the occupants of a storehouse

Janz N. Serrano contracted with an awning manufacturer to put their awnings in proper condition, the manufacturer to exercise his own judgment as to the means and manner of doing so without directions from the proprietors as to how the repairs should be made or the work done and without any control by the proprietor over the instrumentalities to be used. In doing this work the contractor took Page | 29 no precautions to prevent the falling of awnings and tools on pedestrians walking on the street, and an awning roller fell and hit a pedestrian. The court held the owners of the store building liable for the negligence of their independent contractor. In our opinion the case at bar is controlled by the McHarge case. Judgment affirmed. C.A.6 1943. BLAIR v. DURHAM 134 F.2d 729 END OF DOCUMENT

Supreme Court of Oregon. ELLIOTT v. MOSGROVE et al. Page | 30 Sept. 19, 1939. Appeal from Circuit Court, Umatilla County; Calvin L. Sweek, Judge. On petition for rehearing. Petition denied. For former opinion, see 91 P.2d 852.

Under statute granting trial judges a discretionary power to permit amendments before cause is submitted provided the amendment does not substantially change the cause of action, the term cause of action refers to a formal statement of operative facts showing a right in complainant, recognized by law, and a wrongful invasion thereof, actual or threatened. ORS 16.390. [4] KeyCite Citing References for this Headnote 302 Pleading 302VI Amended and Supplemental Pleadings and Repleader 302k242 Amendment of Declaration, Complaint, Petition, or Statement 302k248 New or Different Cause of Action 302k248(1) k. In General. Most Cited Cases Under statute granting trial judges a discretionary power to permit amendments before a cause is submitted, provided the amendment does not substantially change the cause of action, the cause of action should be viewed as an aggregate of operative facts which give rise to one or more relations of right-duty between two or more persons, and the size of such aggregate should be worked out in each case pragmatically with an idea of securing convenient and efficient dispatch of trial business. ORS 16.390. [5] KeyCite Citing References for this Headnote 302 Pleading 302VI Amended and Supplemental Pleadings and Repleader 302k242 Amendment of Declaration, Complaint, Petition, or Statement 302k248 New or Different Cause of Action 302k248(1) k. In General. Most Cited Cases The number of operative facts which give rise to one or more relations of right-duty between two or more persons which will be considered as a single cause of action will vary in different cases, but should be governed by reasons of practical convenience, and the change in such facts should not be a change in the cause of action, so long as the essential fact situation remains the same. ORS 16.390. [6] KeyCite Citing References for this Headnote 302 Pleading 302I Form and Allegations in General 302k1 k. Nature and Mode of Pleading in General. Most Cited Cases Code pleading was the product of a natural aversion to the defeat of meritorious claims through the employment of pleadingtechnicalities. [7] KeyCite Citing References for this Headnote

Janz N. Serrano 143 Election of Remedies 143k1 k. Nature and Grounds in General. Most Cited Cases In proceeding by successor of deceased trustee to establish claim against trustee's estate, original complaint which alleged that deceased had collected in full upon note did not constitute an election of remedies, and did not preclude complainant from amending complaint to include allegation that deceased trustee could have collected note by exercise of diligence. ORS 16.390. [8] KeyCite Citing References for this Headnote 143 Election of Remedies 143k1 k. Nature and Grounds in General. Most Cited Cases The election of remedies is not a favorite of equity. [9] KeyCite Citing References for this Headnote 143 Election of Remedies 143k8 Validity and Finality of Election 143k10 k. Mistake or Ignorance of Facts. Most Cited Cases A remedy pursued in ignorance of co-existing facts which afford the basis of an alternative remedy is not deemed an election, but is regarded as a mistake. [10] KeyCite Citing References for this Headnote 302 Pleading 302VI Amended and Supplemental Pleadings and Repleader 302k242 Amendment of Declaration, Complaint, Petition, or Statement 302k248 New or Different Cause of Action 302k248(7) k. Actions on Account or for an Accounting. Most Cited Cases In proceeding by successor of a deceased trustee to establish claim against trustee's estate, amending original complaint, which alleged that the deceased had collected in full upon note, to include allegation that deceased could have collected note by exercise of due diligence, did not substantially change the cause of action. ORS 16.390. [11] KeyCite Citing References for this Headnote 302 Pleading 302VI Amended and Supplemental Pleadings and Repleader 302k242 Amendment of Declaration, Complaint, Petition, or Statement 302k248 New or Different Cause of Action 302k248(2) k. What Constitutes New Cause in General. Most Cited Cases In determining whether proposed amendment to complaint is permissible under statute granting trial judges discretionary power

West Headnotes [1] KeyCite Citing References for this Headnote 9 Account 9II Proceedings and Relief 9k13 Equitable Actions 9k17 Pleading 9k17(1) k. Bill, Complaint, or Petition. Most Cited Cases A prayer was reasonably susceptible to interpretation that plaintiff sought an accounting, though the term accounting was not directly used, where plaintiff could not have been awarded relief suggested by facts narrated in complaint unless an accounting was first had, and especially where prayer sought general relief. [2] KeyCite Citing References for this Headnote 302 Pleading 302II Declaration, Complaint, Petition, or Statement 302k72 k. Prayer for Relief. Most Cited Cases The prayer is no part of the cause of suit or of action, and ordinarily a party is entitled against answering defendants to any relief warranted by the facts set up in his complaint, especially where plaintiff seeks general relief. [3] KeyCite Citing References for this Headnote 302 Pleading 302VI Amended and Supplemental Pleadings and Repleader 302k242 Amendment of Declaration, Complaint, Petition, or Statement 302k248 New or Different Cause of Action 302k248(1) k. In General. Most Cited Cases

to permit amendments before cause is submitted, provided the amendment does not substantially change the cause of action, the test is whether the amendment will facilitate the convenient, efficient dispatch of the business before the court. ORS 16.390. [12] KeyCite Citing References for this Headnote Page | 31 162 Executors and Administrators 162VI Claims Against Estate 162VI(D) Disputed Claims 162k248 Trial by Probate Court 162k253 k. Hearing. Most Cited Cases In proceedings by the successor of a deceased trustee to establish a claim against trustee's estate, in regard to liability of estate for bank account, which was claimed to be an asset of the trust, in bank which was subsequently liquidated, whether deceased in good faith or otherwise selected the bank as a depository was not an issue, in view of defense denying deceased had ever become a trustee. [13] KeyCite Citing References for this Headnote 162 Executors and Administrators 162VI Claims Against Estate 162VI(A) Liabilities of Estate 162k221 Evidence 162k221(1) Presumptions and Burden of Proof 162k221(1.1) k. In General. Most Cited Cases (Formerly 162k221(1)) In proceedings by successor of a deceased trustee to establish claim against trustee's estate, burden was upon the defendants to establish all credit to which deceased was entitled. [14] KeyCite Citing References for this Headnote 390 Trusts 390VI Accounting and Compensation of Trustee 390k325 k. Evidence. Most Cited Cases The burden is on the accounting trustee to prove to the satisfaction of the court the merits of all claims for credit which he makes. **1071 *513 C. Z. Randall, of Pendleton (Randall & Perry, of Pendleton, on the brief), for appellants. Homer I. Watts, of Athena, and John F. Kilkenny, of Pendleton (Raley, Kilkenny & Raley, of Pendleton, on the brief), for respondent. *540 ROSSMAN, Justice.

The defendants have filed a petition for a rehearing accompanied by comprehensive briefs. We shall first consider the criticisms which they make of the statement of facts contained in our opinion. Our decision, referring to the estate of Matt Mosgrove, deceased, says: The inventory and appraisement of the latter indicated a value of $69,108.59. Its indebtedness aggregated $20,021.16, leaving a net worth of $49,087.43. Out of the latter $8,000 was drawn with which the trust bequeathed by Matt in behalf of *541 Charles's children was established. The briefs accompanying the petition for a rehearing, after quoting the sentence which we have just repeated, states concerning it: There is no word of evidence in the record to justify the statement by the Court in its opinion, and it results in a reflection upon a man now dead, and an outright injustice to his memory. We fail to understand how such conduct upon the part of Thomas could reflect unfavorably upon him. It will be recalled that Thomas was the son of Matt and the nephew of the deceased William, with whom we are primarily concerned. Matt's will, after bequeathing $8,000 in trust for the benefit of the children of his brother Charles, nominated Thomas as executor and provided that he should invest this $8,000 fund and hold the purchased items in trust for Charles's children. Thomas made the investment by purchasing some Canadian land. It is true, as the defendants argue, that Thomas's widow testified that her husband purchased the land with his own funds, but she is a partisan and, as shown in our previous decision, her information concerning her husband's financial transactions, although avowed by her to be complete, was only partial. The following facts, we believe, indicate that the statement quoted above is supported by substantial evidence: Matt died in January, 1926. March 5, 1929, Thomas signed a Declaration of Trust from which we now quote: Whereas Matt Mosgrove, of Milton, Umatilla County, Oregon, by his last will and testament gave and devised unto his son, Thomas H. Mosgrove, the executor named in his will, in trust, the sum of $8,000.00, and by his said will directed his trustee to invest the same *** And whereas I, Thomas H. Mosgrove, the executor and trustee named in the will of Matt Mosgrove, *542 have pursuant to the direction therein contained and as hereinbefore set out invested the sum of $8,000.00 by purchasing the following land ** And whereas I made the said purchase and made the said investment in compliance with and pursuant to the will of the late Matt Mosgrove as in part hereinbefore recited *** Now therefore this agreement and declaration witnesseth that in consideration of the premises and pursuant to the will of the late Matt Mosgrove, I hereby agree and declare that the land and premises *** is held by me in trust for *** according**1072 to the terms of the will of the late Matt Mosgrove, and I do stand seized

Janz N. Serrano and possessed of the said land and premises in trust for them, and subject to the terms of the said will and will pay the income derived therefrom *** and otherwise dispose of the same in such manner as the said Matt Mosgrove in his will directed, and will hold the same in trust pursuant to the said will ***. [1] [2] The only other criticism which the defendants make of our statement of the contents of the record is to direct attention to the fact that the prayer which concludes the complaint does not directly employ the term an accounting. Our previous decision stated: The prayer was inclusive and among other things asked for *** an accounting. It is true that the term an accounting is not found in the prayer, but we believe that the prayer, which is lengthy, is reasonably susceptible to the interpretation that the plaintiff sought an accounting. She could not have been awarded the relief suggested by the facts narrated in her complaint unless an accounting was first had. Further, the prayer asked for such other and further relief as to a court of equity may seem meet and ***. It is well established that the prayer is no part of the *543 cause of suit or of action, and that ordinarily a party is entitled against answering defendants to any relief warranted by the facts set up in his complaint. This is especially true when the prayer, like plaintiff's, seeks general relief. We do not believe that our statement of the facts is erroneous. The defendants argue again that the circuit court improperly permitted the plaintiff to make the amendment to her complaint which we set forth in our decision. Concerning our decision, they say: In this portion of the opinion the Court does not pass upon the question of whether or not the amendment changed the cause of action. It will be recalled that the amendment was made after both sides had rested, but that the order authorizing it added: Ordered that this cause be continued to permit the defendants to introduce any additional testimony they may desire to offer. Following the amendment the defendants excepted but offered no evidence. Section 1-906, Oregon Code 1930, which is the part of our laws which governs this issue, grants to trial judges a discretionary power to permit amendments before a cause is submitted, provided the amendment does not substantially change the cause of action. The term cause of action employed in this section is the piece de resistance which has caused the trouble in the application of this section of our laws. In the stretching, hauling, pulling and contracting to which this phrase has been subjected it has made its way into the group of terms which lacks unity of signification. For a review of many of the definitions which have been placed upon this term, see United States v. Memphis Cotton Oil Co., 288 U.S. 62, 53 S.Ct. 278, 77 L.Ed. 619; *544 East Side Mill Co. v. Southeast Portland Lumber Co., 155 Or. 367, 64 P.2d 625; The Code Cause of Action, Clark, 33 Yale Law Journal 817; Actions and Causes of Action, McCaskill, 34 Yale Law Journal 614; and The Code Cause of Action Clarified by United States Supreme Court, Arnold, 19 A.B.A.Journal 215. Mr. Justice Cardozo, taking a practical attitude toward the term, in United States v. Memphis Cotton Oil Co., supra, says [288

U.S. 62, 53 S.Ct. 280, 77 L.Ed. 619]: It may mean one thing when the question is whether it is good upon demurrer, and something different when there is a question of the amendment of a pleading or of the application of the principle of res judicata. He goes on with an enumeration of other phases of the term, but we are concerned with only one application of the term, that is, its meaning Page | 32 in our statute governing amendments which do not substantially change the cause of action. [3] [4] [5] Judge Clark, who at the time he wrote his article was an instructor in the Yale School of Law, but who subsequently became author of Clark on Code Pleading, reporter of the Advisory Committee on Rules of Civil Procedure appointed by the United States Supreme Court, and still later Judge of the Federal Circuit Court, in his above-cited article, commends highly the following analysis of the term cause of action given in Phillips, Code Pleading, 30: The question to be determined at the threshold of every action is, whether there is occasion for the state to interfere. Therefore, when a suitor asks that the public force be exerted in his behalf, he must show that there is, prima facie, occasion for the state to act in his behalf. That is, he must show a right in himself, recognized by law, and a wrongful invasion thereof, actual or threatened. And since both rights **1073 and delicts arise from operative facts, he must affirm of himself such investitive fact or group of facts as will show a consequent *545 legal right in him, and he must affirm of the adversary party such culpatory fact or facts as will show his delict with reference to the right so asserted. The formal statement of operative facts showing such right and such delict shows a cause for action on the part of the state and in behalf of the complainant, and is called, in legal phraseology, a cause of action. Judge Clark expresses his own conception of the meaning of the term in the following words: The cause of action under the code should be viewed as an aggregate of operative facts which give rise to one or more relations of right-duty between two or more persons. The size of such aggregate should be worked out in each case pragmatically with an idea of securing convenient and efficient dispatch of trial business. He suggests: It seems that a single cause may give rise to innumerable rights. And the extent of our cause and the number of persons it may affect must be determined having in mind our main purpose, above referred to-convenient, efficient trial work. So our cause should be as extensive a history as we can conveniently and efficiently handle as a single unit, and without injury to substantive rights. In his volume on code pleading, Judge Clark, in stating his conception of a cause of action under the codes, points out: The number of such facts to be considered as a single unit will vary in different cases, but should be governed by reasons of practical convenience, and a change in such facts should not be a change in the cause of action so long as the essential fact situation remains the same. *** Under this more flexible view of the restriction it is possible to allow amendments freely *546 where they relate to the same general acts or events set forth in the original pleading. In his aforementioned article he declares: There is no royal road to

pleading for either bench or bar. He favors a flexible application of the term, pointing out that in flexibility there is thus afforded a pragmatic instead of a purely arbitrary application of procedural rules. This would leave a considerable choice to the pleader himself, but still more it would leave much to the discretion of the trial judge, who after all is the one upon whom the responsibility of getting trial work done must rest. He illustrates his point of view thus: A cause of action may consist of operative facts a, b, c, d, and e. The substitution of fact f for fact e may not make a new cause of action; while the substitution of facts f and g for facts d and e may. Our test is not absolute identity of all the operative facts, but whether the number of operative facts common to each situation is sufficiently large to make the treatment of the cause as a unit desirable for convenient and efficient trial work. Professor McCaskill, in his above-cited treatise, criticizes Clark's definition by stating: It is attractive but elusive. He adds: We are certain to be impressed with the aim of administrative convenience stressed by Professor Clark. Likewise, we should be sympathetic toward that amount of flexibility in the action which will make it possible to attain this aim. But, having bestowed this commendation, the writer destroyed its effect by declaring: Leaving to the trial judge the fixation of the scope of the cause of action does not make for administrative convenience. Professor *547 McCaskill gives his conception of the meaning of the term cause of action in the following language: I think we are now prepared to give a fairly accurate definition of the cause of action. It is that group of operative facts which, standing alone, would show a single right in the plaintiff and a single delict to that right giving cause for the state through its courts to afford relief to the party or parties whose right was invaded. The singleness of the right and delict is determined by a study of the old remedies in connection with which the concepts as to singleness of rights and delicts developed. This definition, while possibly an excellent one for pedagogical purposes, is too abstruse to serve the needs of a trial judge who is intent upon framing the issues between the parties in such a practical way that the dispatch of judicial business will be facilitated. [6] Code pleading was the product of a natural aversion to the defeat of meritorious claims through the employment of pleadingtechnicalities. All seem agreed that the commissioners who framed the Field Code admired the flexible character of the principles of equity pleading and disliked the rigid rules of common law pleading. The manner in which flexibility has demonstrated its practicability is indicated in the newer methods of pleading; for instance,**1074 Rule 15 of the new Federal Rules, 28 U.S.C.A. following section 723c, written by the Advisory Committee with which Dean Clark served, places only the following limitation upon the power of the courts to permit amendments: Leave shall be freely given when justice so requires. A claim for relief under the new Federal Rules need not contain anything more than a short and plain statement of the grounds upon which the court's jurisdiction depends and a short and plain statement of the claim

Janz N. Serrano showing that the pleader is entitled *548 to relief. Rule 8. The English practice (Rules of the Supreme Court, Order XXVII) provides: The court or a judge may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings, in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purposes of determining the real questions in controversy between the parties. Thus, it is possible to write rules governing pleadings without employing the troublesome term cause of action, and certainly the merit of the newer methods is largely the result of the flexibility which they employ. However, the phrase cause of action is found in our laws and we must now determine its meaning. It is our belief that one is more likely to gain a correct conception of the meaning of the term by being guided by those who favor the changes which the code commissioners sought to achieve than by reviewing the decisions to which Chief Justice Winslow, in his oft-quoted language, referred (McArthur v. Moffett, 143 Wis. 564, 128 N.W. 445, 446, 33 L.R.A.,N.S., 264) when he said: The cold, not to say inhuman, treatment which the infant Code received from the New York judges is matter of history. Courts which are not over-attentive to the ancient common law forms of action, and which view the process of framing the issues, not as mere application of dry formulas, but as a practical means whereby the controversy between the parties may be ascertained and stated in convenient form for judicial attention, experience no difficulty in the application of Judges Phillips' and Clark's definitions of a cause of action. They regard the term cause of action as one which is broadly descriptive, and deem that its use is purely *549 practical. In Friederichsen v. Renard, 247 U.S. 207, 38 S.Ct. 450, 62 L.Ed. 1075, the court held that a new cause of action was not alleged when a complaint, which averred that the plaintiff was induced through the defendant's fraud to sign a contract for an exchange of properties, was amended in such manner that the cause was transferred from the equity to the law side of the court and the relief sought by the amended complaint was damages in lieu of cancellation prayed for in the original pleading. In Union Central Life Insurance Co. v. Deschutes Valley & Loan Co., 139 Or. 222, 3 P.2d 536, 8 P.2d 587, and Cook v. Van Buskirk, 127 Or. 206, 271 P. 728, we reached the same result-with the aid, however, of Oregon Code 1930, 6-102. For a citation of other decisions similar to Friederichsen v. Renard, supra, see Bancroft's Code Pleading, Practice and Remedies, 530, and 49 C.J., Pleading, p. 520, 686. In the Friederichsen decision the court held that the filing of the original complaint, not the amended pleading, determined the limitation period, and that since the amended pleading did not state a new cause, the plaintiff was entitled to recover even though the period had elapsed when the amended pleading was filed. The decision, obviously sound, was a departure from old traditions. But the very purpose of new laws is to break away from old ideas. The declaration in Missouri, Kansas & Texas Ry. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann.Cas.1914B, 134, before amendment, described the plaintiff as the sole beneficiary and next

of kin of the deceased, and referred to a statute of Kansas which gave a right of action for injuries resulting in death. As amended, the pleading retained these averments but *550 added that the plaintiff, since the filing of the original complaint, had been appointed administratrix of the deceased's estate, and averred that not only the statutes of Kansas, but also a congressional act afforded her a Page | 33 right of action for the death of her son. The amendment was made after the period of limitations had expired. The court held that the amendment did not substantially change the cause of action, and affirmed the judgment recovered by the plaintiff under the Federal act. In New York Central R. R. v. Kinney, 260 U.S. 340, 43 S.Ct. 122, 67 L.Ed. 294, the original complaint set forth facts constituting a cause of action (a) under the common law, (b) under a New York statute, and (c) under a congressional act, depending upon which of these laws was applicable. Reliance upon the state statute was indicated by an averment that a notice required by it **1075 had been given. After several trials had taken place and after more than seven years had passed since the complaint was filed, the plaintiff was permitted to make an amendment which averred that at the time of his injury the parties were engaged in interstate commerce. He then obtained a judgment under the Federal Employers' Liability Act, 45 U.S.C.A. 51-59. In holding that the amendment did not introduce a new cause of action, the court declared that it merely expanded or amplified the original pleading. The question whether a change from express contract to quantum meruit is permissible was propounded to and answered by this court in Richardson v. Investment Co., 124 Or. 569, 264 P. 458, 459, 265 P. 1117: Did plaintiff introduce a new cause of action in changing from one upon express contract to one upon quantum meruit? We answer in the negative. See to same effect 49 C.J., Pleading, p. 523, 693. *551 From 49 C.J., Pleading, p. 522, 691, we quote: Except in jurisdictions where it is held that no amendments are permissible which change the form of the action, it is very generally held that, so long as the cause of action itself is not changed, it is permissible to change by amendment the form of action in an action ex contractu to a different form of action ex contractu. Assumpsit may be changed to covenant or debt, or the form of action may be changed from covenant to assumpsit, or from debt to covenant. So an action begun in assumpsit may be changed to account. In Chickasha Cotton Oil Co. v. Radney, 172 Okl. 368, 45 P.2d 54, the complaint charged the defendant, operator of a cotton gin, with liability for a quantity of cotton. The original complaint alleged that after the defendant had taken possession of the cotton it negligently permitted it to be destroyed by fire. The amended complaint, after charging a contractual bailment, alleged delivery and a failure to return upon demand; in other words, the plaintiff changed his cause from tort to contract. The Oklahoma statute authorized an amendment of a pleading which does not change substantially the claim or defense. The court held that the amendment was not beyond the purview of this code provision and that recovery was

not barred by the statutory period of limitations which had not expired when the original complaint was filed. See further 49 C.J., Pleading, p. 524, 694. In Lieuallen v. Mosgrove, 37 Or. 446, 61 P. 1022, this court held that the code provision concerning amendments quoted in a preceding paragraph was not violated when the plaintiff was permitted to amend his complaint by inserting in it the appropriate averment of negligence after a judgment for him had been reversed (Lieuallen v. Mosgrove, 33 Or. 282, 54 P. 200, 54 P. 664) because recovery *552 had been awarded upon a claim for negligence not alleged. In Ibach v. Jackson, 148 Or. 92, 35 P.2d 672, this court held that an amendment which amplified the specifications of negligence set forth in the original complaint and added another did no violence to the code section under review. From 49 C.J., p. 523, 692, we quote: Except in jurisdictions where amendments changing the form of action are not permissible, it is held that amendments changing the form of action in an action ex delicto to another form of action ex delicto are permissible, provided the cause of action itself is not changed. Thus trespass may be changed to case and vice versa, an action for possession to one for conversion, an action for malicious prosecution to one for false imprisonment, an action of forcible entry and detainer to ejectment, and trespass may be changed to trover or replevin. *** We shall not attempt to state in our own words our conception of a cause of action. The definitions given by Judges Phillips and Clark are excellent. We adopt them as our own. They are much more in keeping with the spirit of code pleading, in our belief, than the definition given by Professor McCaskill. The latter appeals to us as a return to the discredited rigidity of common law pleading; and a return to it would be most unfortunate after flexibility has demonstrated its merit. [7] [8] [9] The primary purposes of the code were satisfied when it appeared from the averments of the complaint that Thomas Mosgrove accepted the office of trustee of the bequest left by his uncle; that he (Thomas) died after receiving the fund but before accounting for it; that the plaintiff, as his successor, had become entitled to receive the trust res; and that the *553 executor of Thomas's estate had refused the plaintiff's demands. It is true that the original complaint averred that Thomas had collected in full upon the note, and that the amended complaint averred that collection had either been made or could have been accomplished through the exercise of reasonable diligence. The defendants argue that the original complaint which averred collection constituted an election of remedies**1076 and that, hence, we have an additional reason why the amendment should not have been allowed. But, as was pointed out in Friederichsen v. Renard, supra, for obvious reasons, it [election] has never been a favorite of equity. [247 U.S. 207, 38 S.Ct. 451, 62 L.Ed. 1075.] It will at once be observed that the amendment did not aver facts showing that the plaintiff was entitled to the pursuit of two possible remedies between which she had a choice, but merely averred facts in alternative form. Thus, there could be only one remedy depending upon which alternative

Janz N. Serrano was true. When the amendment was made it appeared from the evidence that a total of $5,315.30 had been deposited in the T. H. Mosgrove Trustee account. The defendants had insisted that this account was not made up of deposits of the funds of the William Mosgrove $5,000 trust fund. In order to meet this argument the plaintiff had introduced evidence indicating that if Thomas had not collected upon the note he had had plenty of opportunities for so doing while those liable upon it were solvent. The alternative averments were made because the plaintiff lacked information concerning the facts. This is not an instance concerning an election of remedies, because in no event was more than one remedy available. Moreover, a remedy pursued in ignorance of coexisting facts which afford the basis of an alternative remedy is not deemed an election-it is regarded as a *554 mistake. The present instance is nothing more than an averment of facts in alternative form. [10] [11] From the evidence stated in the preceding paragraph it is evident that the amendment merely conformed the pleading to the facts. It is plain that the amendment related to the same transaction that constituted the subject matter of the complaint. After the amendment the essential fact situation remained the same as before. The original complaint had merely been amplified. If the test of whether a proposed amendment will substantially change a cause of action is to inquire whether the amendment will facilitate the convenient, efficient dispatch of the business before the courtand we believe that such is the correct test-then it is evident that this amendment met that test. We say that the amendment met that test, because after its allowance neither party felt it was necessary to offer additional proof. Thus, by allowing the amendment the entire cause was determined, and the useless ceremony of dismissing this suit in order that another complaint incorporating the additional averments might be filed, was avoided. We are firmly convinced that the amendment did not substantially change the cause of action narrated in the original complaint. The defendants' criticism of our decision has not caused us to alter our previous views. [12] [13] [14] The defendants state: In the absence of any evidence whatsoever on the part of Thomas H. Mosgrove in selecting the depository, there is no warrant in law for holding Thomas H. Mosgrove's estate liable for the amount of the deposit. It will be recalled that the T. H. Mosgrove Trustee account was with a bank which was subsequently liquidated by the superintendent of banks and that the defendants, in their pleadings and *555 throughout the trial, denied that Thomas had ever become trustee. In view of the latter defense, whether he in good faith or otherwise selected the bank as depository was not an issue. Knowlton v. Fourth-Atlantic National Bank, 271 Mass. 343, 171 N.E. 721. But in any event the burden was upon Thomas's estate to establish all credits to which he was entitled. From Volume 4, Bogert, Trusts and Trustees, 971, we quote: The burden is on the accounting trustee to prove to the satisfaction of the court the merit of all claims for credit which he makes. See to similar effect 65 C.J., Trusts, p. 904, 799. The record does not indicate the amount realized in the

Janz N. Serrano liquidation of the T. H. Mosgrove Trustee account. In these days when many supposedly insolvent banks have satisfied in full the deposit claims, leaving in some instances something for the stockholders, it may be that the T. H. Mosgrove Trustee account has been paid in full. Since the record is silent, the issue must be resolved against the defendants who failed to discharge the burden Page | 34 of proof resting upon them. [15] Finally, the defendants argue once more that the plaintiff's cause was barred by the statute of limitations. As stated in our original opinion, since this defense was not alleged, it cannot be considered. We still adhere to that belief, but add that if the defense had been available the facts prove that the plaintiff's claim was not barred by an intervening limitation period. It follows from the above that the petition for a rehearing is denied.

RAND, C. J., and KELLY, BELT, and BEAN, JJ., concur.

Or. 1939. ELLIOTT v. MOSGROVE et al. 162 Or. 507, 93 P.2d 1070 END OF DOCUMENT

Circuit Court of Appeals, Ninth Circuit. SOUTHERN PAC. CO. v. CONWAY. Page | 35 No. 9474. Nov. 15, 1940. Appeal from the District Court of the United States for the District of Arizona; David W. Ling, Judge. Action by Southern Pacific Company against Joe Conway, individually, for a declaratory judgment that the Arizona Train Limit Law, Rev. Code Ariz. 1928, Sec. 647, is unconstitutional. From a judgment of the District Court dismissing the action, plaintiff appealed, and, pending the appeal, presented a motion to the Circuit Court of Appeals that the case be remanded to the District Court to permit a supplemental complaint to be filed and evidence presented in support thereof. Motion to remand denied and judgment affirmed.

essential to jurisdiction of any federal court, whatever the nature of relief sought. Jud.Code 274d, 28 U.S.C.A. 2201, 2202. [3] KeyCite Citing References for this Headnote 118A Declaratory Judgment 118AII Subjects of Declaratory Relief 118AII(E) Statutes 118Ak122 Statutes in General 118Ak123 k. Validity of Statutes and Proposed Bills. Most Cited Cases (Formerly 13k6) A sufficient controversy is presented to five federal courts jurisdiction in action for declaratory judgment when a defendant, acting under color of authority, seeks to enforce a state statute which plaintiff seeks to prevent on ground that statute is unconstitutional and would, if enforced against plaintiff, work irreparable injury. Jud.Code 274d, 28 U.S.C.A. 2201, 2202. [4] KeyCite Citing References for this Headnote 170B Federal Courts 170BIV Citizenship, Residence or Character of Parties, Jurisdiction Dependent on 170BIV(A) In General 170Bk268 What Are Suits Against States 170Bk269 k. State Officers or Agencies, Actions Against. Most Cited Cases (Formerly 106k303(2)) A state official cannot be under a duty to enforce a state statute that violates Federal Constitution, and in attempting to do so, official is not fulfilling an official duty or acting for the state so as to be protected from suit in federal courts by constitutional provision concerning judicial power of United States in suits against a state on theory that a suit against official in his official capacity would in effect be a suit against the state. U.S.C.A. Const. Amend. 11. [5] KeyCite Citing References for this Headnote 170B Federal Courts 170BIV Citizenship, Residence or Character of Parties, Jurisdiction Dependent on 170BIV(A) In General 170Bk268 What Are Suits Against States 170Bk269 k. State Officers or Agencies, Actions Against. Most Cited Cases (Formerly 106k303(2)) When a threat is made or an intention expressed by a state officer to enforce a state law alleged to be unconstitutional, officer may be sued as an individual for a judgment declaring the law to be unconstitutional in a federal court, but before officer may be

Janz N. Serrano proceeded against as an individual there must be some basis for treating him as a threatened wrongdoer. [6] KeyCite Citing References for this Headnote 118A Declaratory Judgment 118AII Subjects of Declaratory Relief 118AII(E) Statutes 118Ak124 Statutes Relating to Particular Subjects 118Ak125 k. Corporations, Carriers and Public Utilities. Most Cited Cases (Formerly 13k6) The presumption that defendant, in his official capacity as attorney general of Arizona, would perform his duty to enforce Arizona Train Limit Law, could not be made basis for treating defendant as a threatened wrongdoer so as to authorize an action against defendant, individually, in federal courts for a declaratory judgment that statute was unconstitutional because in violation of commerce and due process clauses of Federal Constitution, where defendant declared that he would not attempt to enforce statute until he formed an opinion that it was constitutional. Rev.Code Ariz. 1928, 647 (A.R.S. 40-850 note); Jud.Code 274d, 28 U.S.C.A. 2201, 2202; U.S.C.A.Const. art. 1, 8, cl. 3; Amend. 14. [7] KeyCite Citing References for this Headnote 170B Federal Courts 170BIV Citizenship, Residence or Character of Parties, Jurisdiction Dependent on 170BIV(A) In General 170Bk268 What Are Suits Against States 170Bk269 k. State Officers or Agencies, Actions Against. Most Cited Cases (Formerly 106k303(2)) That it was defendant's duty, as attorney general of Arizona, to enforce Arizona laws, unless determined to be unconstitutional by a court of appropriate jurisdiction, was not a basis for treating defendant as a threatened wrongdoer so as to authorize action against defendant, individually, in federal courts for declaratory judgment that Arizona Train Limit Law was unconstitutional because in violation of commerce and due process clauses of federal constitution. Rev. Code Ariz. 1928, Sec. 647; Jud. Code Sec. 274d, 28 U.S.C.A. 400; U.S.C.A. Const. art. 1, Sec. 8, cl. 3; Amend. 14. [8] KeyCite Citing References for this Headnote 170A Federal Civil Procedure 170AXIV Pre-Trial Conference 170Ak1937 k. Record or Report. Most Cited Cases (Formerly 106k352(2)) In railroad's action for declaratory judgment that Arizona Train Limit Law was unconstitutional, where railroad sought to show

West Headnotes [1] KeyCite Citing References for this Headnote 118A Declaratory Judgment 118AII Subjects of Declaratory Relief 118AII(E) Statutes 118Ak122 Statutes in General 118Ak123 k. Validity of Statutes and Proposed Bills. Most Cited Cases (Formerly 13k6) The fact that basic question in action for declaratory judgment that a state statute was unconstitutional was constitutionality of statute did not render a declaratory judgment improper. Jud.Code 274d, 28 U.S.C.A. 2201, 2202. [2] KeyCite Citing References for this Headnote 118A Declaratory Judgment 118AII Subjects of Declaratory Relief 118AII(E) Statutes 118Ak122 Statutes in General 118Ak123 k. Validity of Statutes and Proposed Bills. Most Cited Cases (Formerly 13k6) Jurisdiction of District Court in action for declaratory judgment that a state statute was unconstitutional depended upon existence of a justiciable controversy, since a justiciable controversy is

presence of a substantial controversy within jurisdiction of federal courts by record of pre-trial conference, record did not support railroad's contention that amended order striking provisions in previous order concerning defendant's admission of allegations in complaint was erroneous. Rev.Code Ariz.1928, 647 (A.R.S. 40850 note; Jud.Code 274d, 28 U.S.C.A. 2201, 2202). Page | 36 [9] KeyCite Citing References for this Headnote 118A Declaratory Judgment 118AIII Proceedings 118AIII(D) Pleading 118Ak329 k. Issues, Proof and Variance. Most Cited Cases (Formerly 13k6) 92 Constitutional Law KeyCite Citing References for this Headnote 92VI Enforcement of Constitutional Provisions 92VI(C) Determination of Constitutional Questions 92VI(C)2 Necessity of Determination 92k979 k. Justiciability. Most Cited Cases (Formerly 170Bk13, 106k303(2)) Where railroad's complaint against attorney general of Arizona, in his individual capacity, for declaratory judgment that Arizona Train Limit Law was unconstitutional as violative of commerce and due process clauses of Federal Constitution alleged that defendant claimed that statute was constitutional and applicable to railroad in its operations in Arizona, and defendant alleged that he had formed no opinion or contention as to validity of statute or his duties thereunder, pleadings, did not present a justiciable controversy within jurisdiction of federal courts, or an actual controversy under Declaratory Judgment Act, and hence dismissal of action was proper. Rev.Code Ariz.1928, 647 (A.R.S. 40-850 note); Jud.Code 274d, 28 U.S.C.A. 2201, 2202; U.S.C.A.Const. art. 1, 8, cl. 3; Amend. 14. [10] KeyCite Citing References for this Headnote 170B Federal Courts 170BVIII Courts of Appeals 170BVIII(L) Determination and Disposition of Cause 170Bk943 Ordering New Trial or Other Proceeding 170Bk946 k. Amendment as to Parties or Pleading. Most Cited Cases (Formerly 106k406(2)) If occurrences which allegedly happened after trial and judgment of District Court, and which occurrences were relied upon in appellant's motion to have case remanded to allow a supplementary complaint to be filed, were sufficient for a supplementary complaint, it was no objection to motion that judgment had been entered and an appeal taken. [11] KeyCite Citing References for this Headnote

302 Pleading 302I Form and Allegations in General 302k1 k. Nature and Mode of Pleading in General. Most Cited Cases 302 Pleading KeyCite Citing References for this Headnote 302VI Amended and Supplemental Pleadings and Repleader 302k273 Supplemental Pleading 302k274 k. Nature and Office. Most Cited Cases The office of a pleading is to state ultimate facts and not evidence of such facts, and this is as true of supplementary as regular pleadings. [12] KeyCite Citing References for this Headnote 302 Pleading 302VI Amended and Supplemental Pleadings and Repleader 302k273 Supplemental Pleading 302k274 k. Nature and Office. Most Cited Cases The office of a supplemental complaint is not to set forth newly discovered evidence justifying a new trial, but to bring into record new facts which will enlarge or change kind of relief to which plaintiff is entitled. [13] KeyCite Citing References for this Headnote 170B Federal Courts 170BVIII Courts of Appeals 170BVIII(L) Determination and Disposition of Cause 170Bk943 Ordering New Trial or Other Proceeding 170Bk946 k. Amendment as to Parties or Pleading. Most Cited Cases (Formerly 106k406(2)) Where plaintiff appealed from judgment dismissing action because pleadings did not present a justiciable controversy within jurisdiction of federal courts when case was tried, plaintiff's motion to remand case to permit filing of supplemental complaint showing the commission of certain acts by defendant after dismissal of case would be denied where facts sought to be set forth in proposed supplemental complaint would authorize no different relief from that sought in complaint, and District Court's judgment dismissing case did not prevent a new action by plaintiff based upon subsequent acts of defendant. Jud. Code Sec. 274d, 28 U.S.C.A. 400. *747 Alexander B. Baker and Louis B. Whitney, both of Phoenix, Ariz., and C. W. Durbrow, Henly C. Booth, and Burton Mason, all of San Francisco, Cal., for appellant. Charles L. Strouss and W. E. Polley, both of Phoenix, Ariz., for appellee.

Janz N. Serrano Before WILBUR, DENMAN, and STEPHENS, Circuit Judges.

*748 WILBUR, Circuit Judge. On April 18, 1939, appellant filed a complaint in the United States District Court for Arizona against Joe Conway, individually, seeking a declaratory judgment against appellee, who is alleged to be the Attorney General of the State of Arizona, to the effect that the Arizona Train Limit Law, approved by the people by referendum after enactment by its legislature (Arizona Revised Code, 1928, Section 647), is unconstitutional because it violates the Commerce Clause (cl. 3, sec. 8, Art. I) of, and the Due Process Clause of the Fourteenth Amendment to, the Constitution of the United States. These same claims were advanced in prior litigation on the subject in Atchison, T. & S. F. Ry. Co. v. La Prade (Southern Pac. Co. v. La Prade), D.C., 2 F.Supp. 855; see, also, Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311. The complaint alleged that the defendant * * * claims and maintains that said train-limit law is valid and constitutional in all respects and is applicable to and binding upon plaintiff in its railroad operations in Arizona; and said defendant further claims and maintains that, in the event of violation of said law by plaintiff, it is and will be his duty forthwith to institute or direct the institution of proceedings to recover from plaintiff the penalties provided in said law and otherwise to enforce compliance therewith by plaintiff. To support the charge of unconstitutionality the complaint contained many allegations as to the effect of limiting the length of its trains, unnecessary to set out here. It alleged, among other things, that enforcement of the act would cause appellant a loss of not less than $300,000 per year and that the penalties for its violation were so heavy that if the act were disobeyed appellant would be liable to penalties varying from $1,600 to $37,000 per day, depending upon the density of traffic. The defendant alleged that he had formed no opinion or belief and makes no contention either as to the validity, constitutionality or unconstitutionality of said Arizona Train Limit Law, or as to his duties thereunder and that no occasion had arisen for the defendant in his official capacity to investigate the constitutionality of the Arizona Train Limit Law because there had been no report or information of a violation thereof. In his answer appellee specifically denied that he claimed or maintained that it was or would be his duty, as Attorney General or otherwise, to prosecute or sue plaintiff for each or for any violation of the Arizona Train Limit Law, supra, as alleged in the complaint. At the pre-trial conference appellee's counsel admitted all the allegations of the complaint upon which the claim of unconstitutionality is based, but denied that appellee would be

Janz N. Serrano under any duty to enforce the act unless it is constitutional. The amended order following the pre-trial conference was to the same effect. On the trial appellant introduced its evidence, but defendant offered no evidence and moved to dismiss for lack of jurisdiction. Page | 37 The court made findings of fact bearing on the question of constitutionality in accordance with the plaintiff's evidence and the admitted facts, but also found that appellee had not threatened to enforce the Arizona Train Limit Law, supra, and had taken no action toward enforcing it. The court also found that no case or controversy was presented within the judicial power of United States courts and on February 14, 1940, dismissed the proceedings for want of jurisdiction. An appeal from the judgment of dismissal was taken to this court. Pending the appeal appellant presented to this court its motion that the case be remanded to the trial court so as to permit a supplemental complaint to be filed and evidence presented in support thereof. In support of this motion appellant showed by affidavits that on April 19, 1940, appellee, acting as Attorney General, had brought suit in the Superior Court of the State of Arizona, against appellant as the defendant, charging it with two violations of the Train Limit Law and seeking to recover the statutory penalties; also that on the same day appellee had issued a public statement announcing his belief in the validity of the law and his intention, if successful in the prosecution there commenced, to sue the appellant for penalties with respect to every other violation which it might have committed and specifying that such penalties might amount to $100,000 or more. After hearing argument on appellant's motion to remand this court on June 19, 1940, entered its order denying said motion without prejudice to the right to renew *749 such motion at the time the appeal is heard on the merits. Appellant's opening brief in support of its appeal renews its motion to remand, urging that the same be further considered and granted in the event that this court is not convinced, upon the record before it, that the judgment of the trial court was erroneous and should be reversed. Was the Judgment of Dismissal Erroneous? The District Court held that it had no jurisdiction to enter a declaratory judgment upon the facts before it because there was no case or controversy between the parties. [1] The fact that the basic question was the constitutionality of a statute did not render a declaratory judgment improper. Freeman on Judgments, 5th ed. Sec. 1356; Zoercher v. Agler, 202 Ind. 214, 172 N.E. 186, 907, 70 A.L.R. 1232; Adams v. Slavin, 225 Ky. 135, 7 S.W.2d 836; Department of Agriculture v. Laux, 223 Wis. 287, 270 N.W. 548; Penn v. Glenn, D.C., 10 F.Supp. 483; Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379; 83 L.Ed. 441. [2] [3] The court's jurisdiction depends upon the existence of a justiciable controversy. In the first place such a controversy is essential to the jurisdiction of any federal court whatever the nature of the relief sought. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688. In the second place the Declaratory Judgment Act, 28 U.S.C.A. 400, specifically requires that an actual controversy be present. On the other hand, a sufficient controversy is present when a defendant, acting under color of authority, seeks to enforce an act which the plaintiff seeks to prevent on the ground that the statute is unconstitutional and would, if enforced against the plaintiff, work irreparable injury. Upon that basis the Supreme Court has sustained injunctions granted by District Courts in numerous cases. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A., N.S., 932, 14 Ann.Cas. 764; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468, Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111. [4] Appellee contends that he is without any interest as an individual in the enforcement of the Train Limit Law and that if he is interested at all it is in his capacity as Attorney General of the State of Arizona, in which capacity he is protected from this suit by the Eleventh Amendment to the Constitution of the United States. That contention rests upon the theory that a suit against him as Attorney General in effect would be a suit against the state; but a long series of Supreme Court decisions has held that no official can be under a duty to enforce a law that violates the United States Constitution, that in attempting to do so he is not fulfilling an official duty or acting for the state, and if a showing of irreparable injury is made may be enjoined from enforcing such an act. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A. 1916D, 545, Ann. Cas. 1917B, 283. [5] Furthermore, when a threat is made or an intention expressed by such an officer to enforce a law alleged to be unconstitutional he may be sued as an individual for a judgment declaring the act to be unconstitutional in a federal court. Cf, Ex Parte Young, supra; Currin v. Wallace, supra. However, it must be remembered that before the officer, in this case the Attorney General of Arizona, can be proceeded against as an individual there must be some basis for treating him as a threatened wrong-doer. The appellant company labors to establish that basis. In doing so it relies upon two propositions. One is that an officer is presumed to do his duty. The other is that it is the duty of the Attorney General to enforce the laws of Arizona unless determined by a court with appropriate jurisdiction to be unconstitutional. [6] As to the asserted presumption, this may be said: It surely cannot over come the express declaration of the appellee that he would not attempt to enforce the law until he formed an opinion that it was constitutional. [7] As to the contention that it was the duty of the Attorney General to endeavor to enforce the law of his state, leaving it to the courts to pass upon the question of constitutionality, it is sufficient to observe that the position repeatedly and persistently taken by the Supreme Court is *750 that it cannot be the duty of a public prosecutor to endeavor to enforce a law that violates the Constitution of the United States. It is clear from the decision of the Supreme Court in Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311, supra, that the question turns upon the threats or acts of the officer rather than from any duty supposed to rest upon him by reason of such unconstitutional act. Appellant also attempts to show the presence of a substantial controversy by the record of the pre-trial conference held on November 3, 1939. On December 1, 1939, the trial court entered an order which in effect recited that appellee had admitted the following allegation in the complaint: Said defendant claims and maintains that it is and will be his duty, as Attorney General, to prosecute and sue plaintiff for each and every violation of said act which it may commit. But, on December 12, 1939, the court on motion amended said order by striking out so much thereof as recited the admission of said allegation. [8] Appellant contends that the amended order was erroneous and contrary to the record of the pre-trial conference. An examination of that record as it appears in the transcript fails to support appellant's contention. [9] Whatever may have occurred subsequent to the judgment from which their appeal was taken, the record up to that point supports the finding of the trial court that no controversy as yet existed when the action was begun. The trial court did not err in its judgment of dismissal. The Motion to Remand. Plaintiff seeks to have the case remanded for the purpose of allowing a supplementary complaint to be filed setting forth occurrences subsequent to the trial and judgment. [10] If the occurrences relied upon are sufficient for a supplementary complaint it is no objection to the procedure here adopted that judgment has been entered and an appeal taken. Ballard v. Searls, 130 U.S. 50, 9 S.Ct. 418, 32 L.Ed. 846.

Janz N. Serrano One of the occurrences relied upon is the institution of proceedings in the Superior Court of Arizona by defendant as Attorney General whereby complaint is made and a penalty of $2,000 sought in each of two separate counts against the plaintiff, one for violating the Train Limit Law with respect to freight trains and the other for violating the same law with respect to passenger Page | 38 trains. Another occurrence, according to deposition of one Baker, which was filed in support of the motion to remand, is that, since this suit in the Superior Court was instituted, appellee Conway has in substance said that if he is successful in the state action started he will later institute proceedings to collect fines for all violations of the act both prior and subsequent to the filing of this suit. [11] [12] If appellant were now seeking a declaratory judgment, beginning anew, the pendency of the suit in the state court and the threat evidenced by Baker's deposition, would support the conclusion that a justiciable controversy was present, such as to support an action for a declaratory judgment; but it does not follow that these occurrences subsequent to the judgment may properly be presented by a supplemental complaint. Appellant assumes that since they would have been admissible as evidence had they occurred before the trial they are therefore appropriate facts to be presented by a supplemental complaint. But the office of a pleading is to state ultimate facts and not evidence of such facts. Green v. Palmer, 15 Cal. 411, 76 Am.Dec. 492; McAllister v. Kuhn, 96 U.S. 87, 24 L.Ed. 615; Sierocinski v. E. I. Du Pont de Nemours & Co., 3 Cir., 103 F.2d 843. And this is as true of supplementary as of regular pleadings. Lyster v. Stickney, C.C., 12 F. 609. The office of a supplemental complaint is not to set forth newly discovered evidence justifying a new trial. It is rather to bring into the record new facts which will enlarge or change the kind of relief to which the plaintiff is entitled. 21 Enc.Pl.& Pr. 19; 49 Corp.Jur. 571; Clark, Code Pleading, 523; Foote v. Burlington Gas Light Co., 103 Iowa 576, 72 N.W. 755; Muncie, etc., Traction Co. v. Citizens' Gas Co., 179 Ind. 322, 327, 100 N.E. 65; Jacob v. Lorenz, 98 Cal. 332, 33 P. 119; Wade v. Gould, 8 Okl. 690, 59 P. 11; Minerals Separation v. Miami Copper Co., D.C., 264 F. 528. [13] The facts sought to be set forth in the proposed supplemental complaint would authorize no further or different relief from that sought in the complaint. At most they would serve merely as evidence tending to show that plaintiff, at the *751 time the complaint was filed, was entitled to maintain an action for a declaratory judgment, the very relief there sought. Moreover these matters which plaintiff desires to incorporate in its supplemental complaint would be of very little value in determining the state of the defendant's mind at some date prior to any affirmative action on his part. And a justiciable controversy could not arise from an undisclosed state of mind. The judgment of the District Court does not prevent a new action based upon the subsequent acts and asserted threats of the defendant and it should be affirmed. The motion to remand is denied. Judgment affirmed. C.A.9 1940. SOUTHERN PAC. CO. v. CONWAY 115 F.2d 746 END OF DOCUMENT West Reporter Image (PDF)