CHAPTER CCII.

PLEADING DEFENSES.

SECTION

7613. Matters of defense generally.

7614. Defense of "not guilty."

7615. General denial.

7616. Inconsistent defenses.

SECTION

7621. Admission of presentation of claim for damages.

7622. Denial that injury was inflicted through negligence.

7617. Pleading contributory negli- 7623. Plea of agreement not to sue.

gence.

7618. Unreasonableness or invalid

ity of ordinances.

7619. Excusing failure to give railway signals.

7620. Denial on information and belief.

7624. Plea of release by member

ship in relief association. 7625. Pleas in actions involving master and servant relation. 7626. Cure of defects in complaint by allegations in answer.

§ 7613. Matters of Defense Generally.-As to matters of defense there is but little to be said, except that the general principles above set out as governing the pleading of a cause of action are, in most instances, equally applicable to the pleading of a defense. It is well, however, for the pleader to remember that the pleadings will be considered with reference to their relations to each other, and that if the answer avers or confesses a material fact omitted from the complaint, or defectively averred, the defect in the complaint is thereby cured.1 A failure to plead an available defense will generally be treated as an abandonment of the defense, as, for example, where a carrier sued for damages for negligent delay in shipping stock fails to allege in its answer the existence of a special contract limiting its liability."

§ 7614. Defense of "Not Guilty."-Intimately connected with the subject of the forms of action at common law, suitable for such causes, is the question of the effect of a plea of "not guilty," and the defenses which could be shown in evidence under it. In actions on the case, the plea of "not guilty" operated as a denial only of the breach of duty, or wrongful act, alleged to have been committed by the defendant, and not of the facts stated in the inducement. In an action for personal injuries, the declaration alleged that the defendant was employed by certain persons, commissioners of sewers, to make a

'Shartle v. Minneapolis, 17 Minn. 303.

2

Kansas City &c. R. Co. v. Pace, 69 Ark. 256; s. c. 63 S. W. Rep. 62.

sewer in a highway, and that the defendant kept and continued upon the highway two iron gratings, in the custody and care of the defendant, for the purpose of forming said sewer, without placing any light or signal at or near such iron gratings, or adopting any other means to show that they were then upon said highway. The defendant pleaded "not guilty." The court held that the breach of duty complained of was the omission to put lights near the gratings, or otherwise guard them, and that that alone was put in issue by the plea; and that evidence that the gratings were not in the custody and care of defendant was inadmissible. A defense grounded upon contributory negligence of the plaintiff, or the fact that the injury resulted from inevitable accident, it was held, must be pleaded specially. A plea of "not guilty" in an action for personal injuries at a railroad crossing, the declaration in which contains three counts, two of them in case and the third alleging special facts and circumstances showing negligent injury to plaintiff's person and property while he was crossing the railroad, in allowing the crossing to be obstructed, running the cars at a high rate of speed, and not ringing the bell or blowing the whistle, puts in issue the contributory negligence of the plaintiff, as the third count is also in case. Evidence showing matter of excuse is not admissible under the plea of "not guilty." The cases, however, are not entirely harmonious upon this subject; for in some instances other defenses than the mere disproving of the breach of duty alleged have been held admissible under the plea of "not guilty." Where the action was for an injury resulting from the negligence of defendants' servant in driving a horse and cart, and the declaration alleged "that the defendants, by their servant, negligently drove" the cart against the plaintiff, and injured her, it was held that evidence might be introduced, under the plea of "not guilty," to show that the servant was acting on his own responsibility and/without the scope of his duty at the time. In another case, it was held that under the plea of "not guilty," in an action against a city for personal injuries, the city could show that it never accepted the portion of the

3 Grew v. Hill, 2 Dow. & L. 664; s. c. 3 Exch. 801; 18 L. J. (Exch.) 317.

Knapp v. Salisbury, 2 Camp. 500. Contra, Gough v. Bryan, 2 Mee. & W. 770.

Canadian Pac. R. Co. v. Clark, 73 Fed. Rep. 76; s. c. 38 U. S. App. 573; 74 Fed. Rep. 362.

Hall v. Fearnley, 3 Q. B. 919; s. c. 3 Gale & Dav. 10; 7 Jur. 61; 12 L. J. (Q. B.) 22. Contributory negligence on the part of the plaintiff, it

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is held, is admissible in defense in an action on the case, under the plea of not guilty: Holden v. Liverpool Gas Co., 3 C. B. 1; Howden v. Standish, 18 L. J. (C. P.) 33; s. c. 12 Jur. 1052; 6 Dow. & L. 312; Meek v. Whitechapel Board of Works, 2 Fost. & Fin. 144.

Mitchell v. Crassweller, 13 C. B. 236; s. c. 17 Jur. 716; 22 L. J. (C. P.) 100. See also, Gough v. Bryan, 2 Mee. & W. 770.

street where the accident was alleged to have occurred. In still another case it was held that under this plea the plaintiff could show that he was not the person driving the cart, and that the cart did not belong to him. This rule, however, was denied in the case of Hart v. Crowley, 10 the court holding that the allegations that the cart and horse were the property of the defendant were merely matter of inducement, and not traversed by the plea of "not guilty." On the contrary, such plea was held to operate as an admission of such ownership, and that they were being driven along the road by defendant's servant.11 In a more recent case it was held that a plea of "not guilty” in an action for personal injuries against a railroad company amounts to an admission of the defendant's corporate character, but not an admission of the allegations of the complaint that defendant came into existence as the result of the consolidation of certain other corporations.12 In Pennsylvania the position is taken that where the declaration in an action for the killing of a person upon a railroad avers that he was in the employ of the company owning the road, and the plea is "not guilty," with notice of special matter, the fact that deceased was in the service of the company, being matter of inducement, stands admitted; and evidence of it is not necessary on the trial.13

$ 7615. General Denial.-The answer of general denial under the code merely puts in issue such of the general averments of the complaint as the plaintiff is bound to prove in order to maintain his action.14 Under this plea the simple inquiry is, Has the plaintiff proved what he has alleged in his complaint?15 Special defenses consisting of matter which goes to disprove any material allegation in the complaint are improper and should be stricken out on motion.16

Nellums v. Nashville, 106 Tenn. 36; Jones v. Seward Co., 10 Neb. 222; s. c. 61 S. W. Rep. 88. 154; Heinemann v. Heard, 62 N. Y. 455.

Taverner v. Little, 5 Bing. N. C. 678; s. c. 7 Scott 796; 3 Jur. 702. 10 12 Ad. & E. 378.

11 Emery v. Clark, 2 Moo. &. R. 260.

12 Zealy v. Birmingham R. Co., 99 Ala. 579; s. c. 13 South. Rep. 118. 13 Somerset &c. R. Co. v. Galbraith, 109 Pa. St. 32; s. c. 1 Cent. Rep. 138. "Lafayette &c. R. Co. v. Ehman, 30 Ind. 83; Adams Express Co. v. Darnell, 31 Ind. 20; Finley Quirk, 9 Minn. 194; s. c. 86 Am. Dec. 93; Coles v. Saulsby, 21 Cal.

47.

V.

16 Benedict v. Seymour, 6 How. Pr. . (N. Y.) 298. In an action for negligence against a railroad company, which filed a general denial and also a special plea that the accident was caused by a thunderstorm, it was held that the special plea should be stricken out, as the matter contained therein could be shown under the general denial: Ellet v. St. Louis &c. R. Co., 76 Mo. 518. A paragraph of an answer in an action for personal injuries to a railroad employé, alleging that he was not in the line of his duty because

15 Field v. French, 80 Ill. App. 78; School Dist. v. Shoemaker, 5 Neb. the accident happened during the

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Under this plea the defendant may introduce any evidence which goes to controvert facts which plaintiff must establish in order to sustain his action. Thus, for example, in an action for negligently setting out a fire the defendant will be allowed to show under his general denial any acts of caution exercised to prevent the spread of the fire. So, in an action for damages alleged to have been caused by defendant's negligence in regulating the flow of natural gas into the pipes leading to plaintiffs' stove, defendant may prove any fact showing proper management on its part, that it was not negligent in any particular charged in the complaint and that the plaintiffs were not without fault.18 So, a general denial in an action against a railroad company for the alleged wrongful ejection of a colored person from the ladies' waiting-room will allow evidence of a rule separating the races, and such rule need not be set up by way of confession and avoidance.19 So, in an action against a railroad company for causing the death of plaintiff's intestate, it may be shown under a general denial that another company was operating the road under a lease, and had complete control of it, and that the deceased was in its employ at the time of his death.20 So, in an action for damages caused by injury to stock by delay of a common carrier, a contract limiting the carrier's liability can be introduced in defense under the general issue, and need not be specially pleaded.21 And so, in an action for injuries caused by the giving way of a temporary bridge erected by defendant, a private corporation, over an excavation in a street, it will be allowed to show, under a general denial, that plaintiff knew of the unsafe condition of the bridge.22

§ 7616. Inconsistent Defenses.-The general denial and the plea of contributory negligence are not generally regarded as inconsistent defenses,23 and the latter allegation is not taken as implied admission of negligence dispensing with proof of that fact by plaintiff and limiting the issue to that of contributory negligence.24 Under a

noon hour, is properly stricken out where the answer contains a general denial, and the complaint alleges that plaintiff was in the line of his duty when injured: Evansville &c. R. Co. v. Maddux, 134 Ind. 571; s. c. 33 N. E. Rep. 345; 34 N. E. Rep. 511.

17 Kendig v. Overhulser, 58 Iowa 195.

19 Citizens' Gas &c. Co. v. Whipple, 32 Ind. App. 203; s. c. 69 N. E. Rep. 557.

19 Smith v. Chamberlain, 38 S. C. 529; s. c. 17 S. E. Rep. 371; 19 L. R. A. 710; 32 Am. L. Reg. 747.

20 Baxter v. New York &c. R. Co. (Tex. Civ. App.), 22 S. W. Rep. 1002.

21 Baltimore &c. R. Co. v. Ross, 105 Ill. App. 54.

22 Indiana Natural Gas &c. Co. v. O'Brien, 160 Ind. 266; s. c. 65 N. E. Rep. 918; 66 N. E. Rep. 742.

23 Leavenworth Light &c. Co. v. Waller, 65 Kan. 514; s. c. 70 Pac. Rep. 365.

24 McDonald v. Montgomery St. R. Co., 110 Ala. 161; s. c. 20 South. Rep. 317; Fowler v. Brooks, 65 Kan. 861; s. c. 70 Pac. Rep. 600.

code provision allowing defendant to set forth by answer as many defenses as he may have, an answer, in action for personal injuries by collision with a horse and wagon belonging to defendant, alleging that at the time of the collision the horse and wagon were in the possession and control of an independent contractor, and also that the horse and wagon were being driven by defendants along the highway, and that the accident occurred through plaintiff's negligence and without fault of defendants or his servants or employés, although sworn to, was held not open to the objection of repugnance.25 So, a general denial by an employer sued for the death of an employé will suffice to render admissible the defense that he was not bound to use more than ordinary or reasonable care for the protection of the deceased, although his answer also avers that the injuries were occasioned by an act of God which no human agency could have foreseen and prevented.26

§ 7617. Pleading Contributory Negligence. It was thought necessary to an adequate presentation of the subject of contributory negligence in an earlier volume to include the matter of pleading that defense, and the reader is referred thereto for a full statement of the author's views on the subject.27 At this time it may be stated that contributory negligence will be sufficiently pleaded in an answer by an allegation that any damage suffered by the plaintiff was brought upon himself either in whole or in part by his own carelessness and negligence contributing directly thereto.28

$7618. Unreasonableness or Invalidity of Ordinances. In an action against a railway company for personal injuries in which plaintiff relies upon a city ordinance prohibiting the running of trains beyond a specified rate of speed, the defendant must plead the unreasonableness of the ordinance if he intends to rely upon that fact as a defense.29 A mere denial that the train which caused the injury complained of was being run at an unlawful rate of speed will not raise the issue of the unreasonableness or invalidity of the ordinance regulating the speed of trains.30

25 Banta v. Siller, 121 Cal. 414; s. c. 53 Pac. Rep. 935 [distinguishing Bell v. Brown, 22 Cal. 678]. 26 Galveston &c. R. Co. v. Daniels, 1 Tex. Civ. App. 695; s. c. 20 S. W. Rep. 955.

"See Vol. I, §§ 373-381.

28 Neier v. Missouri &c. R. Co. (Mo.), 4 West. Rep. 597.

29 Bluedorn v. Missouri &c. R. Co. (Mo.), 24 S. W. Rep. 57 (no off. rep.); s. c. rev'd on other grounds, 121 Mo. 258; 25 S. W. Rep. 943.

30 Bluedorn v. Missouri &c. R. Co., 121 Mo. 258; s. c. 25 S. W. Rep. 943; rev'g s. c. 24 S. W. Rep. 57.