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Same-Evidence-Insufficiency-Inadequacy of Damages-When New Trial

Improper.

24. Where the evidence of plaintiff in an action for damages for death by negligence was wholly insufficient to warrant a judgment in his favor and the court committed error in not granting defendant's motion for a directed verdict, a judgment in plaintiff's favor for $51 and costs will not be reversed on the ground of inadequacy of damages, or a new trial ordered.-Osterholm, Admr., v. Butte Electric Ry. Co., 193.

Railroads Complaint-Insufficiency.

25. Complaint, in an action by a railway employee for injuries caused by the breaking of a lever used in the operation of semaphores, which, while averring that for a long time the lever had been cracked, defective and dangerous, that defendant negligently and carelessly permitted it to remain in such condition for a long period of time, and knew of such condition of the lever, or by the exercise of reasonable care and caution should have known thereof, etc., failed to specify the time during which defendant had knowledge, or opportunity to know, of the defect in the lever, held fatally defective.Boyle v. Chicago, Milwaukee & St. Paul Ry. Co., 453.

Same Complaint-Insufficiency-Amendment-Proper Denial.

26.

Where the attention of plaintiff in a personal injury action had been called to a fatal defect in her complaint by general demurrer, which was overruled, and by objection, at the commencement of the trial, to the introduction of any testimony on the ground of the insufficiency of the pleading to state a cause of action, also overruled, thus affording her ample opportunity to correct the defect, refusal to permit amendment at the close of all the testimony and after defendant had moved for a directed verdict on the same ground among others, was not an abuse of discretion.-Boyle v. Chicago, Milwaukee & St. Paul Ry., 453.

Negligence Proximate Cause of Injury-Complaint must Allege-Exception to Rule.

27. Since negligence does not give rise to a cause of action unless it was the proximate cause of injury, the complaint must disclose the causal connection between the acts of negligence alleged and the injury suffered, unless such connection is necessarily inferred from the facts stated, in which event a specific allegation to that effect may be dispensed with.-O'Neil v. Christian, 460.

PLEADING AND PRACTICE.
See, also, Criminal Law.

Judgment on pleadings-When improper,—see Judgments, 1.

Nuisances-Cities and Towns-Septic Tanks-Improper Operation-Complaint-Sufficiency.

1. In an action to abate a nuisance and to recover damages, the complaint, which in substance alleged that by the negligent operation of a septic tank in connection with defendant city's sewer system near his premises, in dumping the excrement there from upon a gravel-bar, polluting the atmosphere as well as the water used by plaintiff for domestic and business purposes, to such an extent as to render his dwelling-house unfit for habitation, etc., held to state a cause of action.-Newton v. City of Roundup, 24.

Oral Contracts-Work and Labor-Complaint-Insufficiency.

2. The complaint in an action to recover compensation for extra services performed, which fails to state any time or basis for computing the claim, is indefinite.-Donovan v. Bull Mountain Trading Co., 87. Mines and Mining Claims-Adverse Claim-Complaint.

3. In an action to determine an adverse claim to a lode mining claim, the complaint is sufficient if plaintiff by appropriate allegations shows his right to the ground covered by his location, without alleging the nature of defendant's claim, the duty of doing so devolving upon defendant.-Lehman v. Sutter, 97.

Same-Complaint-Location-Defect in Recorded Certificate-Immaterial

Allegation.

4. In view of the provision of section 2293, Revised Codes, that defects in a recorded certificate of location of a mining claim shall not be deemed material where the person relying on the defects made his location with notice thereof, allegations in his complaint, in an action to determine an adverse claim, relating to such defects are immaterial.-Lehman v. Sutter, 97.

Actions-Motions-Nature, How Determined.

5. As the nature of an action must be determined by the pleadings, regardless of the designation given it by the parties, so an order granting a motion must be judged by its effect rather than by its wording. Currey v. Butte Electric Ry. Co., 146.

Contracts-Loss of Business and Profits Special Damage-Complaint.

6. Damages for loss of business and profits resulting from a breach of contract are special in character, in the sense that, while flowing from the action of the defendant, they are not such a necessary result thereof as that they will be implied by law, and must be pleaded.-Whitelaw v. Vallance, 172; Humber v. Marshall, 267. Same-Complaint-Nominal Damages.

7. Under a complaint alleging that plaintiff had purchased potatoes from defendants at a stated price and offered to receive and pay for them on a certain date, out that defendants failed to make delivery, plaintiff was entitled to no more than nominal damages.— Whitelaw v. Vallance, 172.

Same Time of Performance-Complaint-Insufficiency.

8. Where the contract of purchase of potatoes for the breach of which damages were sought was silent as to the time of their delivery, and the complaint did not allege any date or that delivery should be made within a reasonable time, the pleading was insufficient.Whitelaw v. Vallance, 172.

Personal Injuries-Death-Master and Servant-Action by Administrator -Complaint-Sufficiency-Misjoinder of Parties.

9. The right of action for damages given by section 6486, Revised Codes, to the heirs or personal representative of an adult whose death is caused by wrongful act or negligence is solely for the benefit of the heirs, the representative merely acting as their trustee and the amount recovered not being a part of decedent's estate; hence the complaint of an administrator setting forth the damages sustained by decedent's father and mother was not open to demurrer on the ground of misjoinder of parties plaintiff (the administrator and the heirs) or causes of action, recovery by the administrator barring a subsequent action by the heirs.-Batchoff, Admr., v. Butte Pacific Copper Co., 179.

Same-Heirs-Complaint-Sufficiency-Inferences.

10. Since under section 4820, subdivision 2, Revised Codes, the father and mother of an intestate were his heirs at law, the allegation of plaintiff administrator that the adult for whose wrongful death damages were sought died intestate, leaving surviving him his father and mother, naming them, was sufficient to state by inference that they were his heirs, in the absence of a direct allegation to that effect.-Batchoff, Admr., v. Butte Pacific Copper Co., 179.

Overruling Demurrer-Service of Notice by Mail.

11. Quaere: Was service of notice of the overruling of a demurrer, time being given within which to answer, made by mailing a postal card, legal service?-Batchoff, Admr., v. Butte Pacific Copper Co., 179. Same-When Service of Notice by Mail Complete.

12. Service of notice by mail of overruling of demurrer was complete upon deposit thereof in the post office, even though the notice was never received by the party to whom it was addressed.—Batchoff, Admr., v. Butte Pacific Copper Co., 179.

Same-Extension of Time for Answer-Distance Between Places of Deposit and Address-Judicial Notice.

13. In determining whether the time for answering, after demurrer overruled was extended one day for every twenty-five miles distance between the place of deposit of notice, served by mail, and place of address, courts may take judicial notice of the distance between the place where mailed and the place of address.-Batchoff, Admr., v. Butte Pacific Copper Co., 179.

Same-Extension of Time for Answer-Applicability of Statute.

14. The provision of section 7148, Revised Codes, that in case of service by mail, where something is to be done by the adverse party within a given number of days after service, the time within which it may be done is extended one day for every twenty-five miles distance between the place of deposit and the place of address, applies in a case where, after overruling of a demurrer to a complaint defendant is granted a given number of days within which to serve and file answer, or is ordered to do so on or before a certain date, the two meaning substantially the same thing.-Batchoff, Admr., v. Butte Pacific Copper Co., 179.

Railroads-Unreasonable Rates-Railroad Commission Act-Remedies Ex

clusive-Complaint-Insufficiency.

15. Held, that the remedies prescribed by Chapter 37, Laws of 1907 (Rev. Codes, secs. 4363-4399), for recovery of damages caused by the exaction of discriminatory or unreasonable freight charges, are exclusive, and that therefore a complaint based upon the commonlaw remedy and drawn in entire disregard of the provisions of the statute did not state a cause of action, the common-law remedies having been superseded by said chapter.-Doney v. Northern Pacific Ry. Co., 209.

Same-Complaint-Jurisdictional Allegation.

16. Under section 4389, Revised Codes, an allegation that payment of alleged discriminatory or unreasonable freight charges was made in the county in which the action is brought is jurisdictional.-Doney v. Northern Pacific Ry. Co., 209.

Same Presumptions-Complaint-Insufficiency.

17. Since the presumption obtains that the railroad commission fixed and established reasonable rates in obedience to section 4375, Revised Codes, and that the rate as established is in accordance with the

approved and published tariff, a complaint which fails to allege that freight charges were not in accordance with such tariff is defective. Doney v. Northern Pacific Ry. Co., 209.

Same Unjust Rates-Remedies-Procedure.

18. A shipper deeming himself aggrieved by a rate fixed by the railroad commission because unjust, unreasonable or discriminatory, must proceed under section 4391, Revised Codes, if he desires to have it declared so; where no rate has been fixed or the one established is considered excessive, he must apply to the commission for investigation and determination of his contention, under section 4377, before he can maintain an action in the courts; and if his case is predicated upon freight charges made in excess of those fixed and established by the commission, his complaint must so allege and the action must be brought within twelve months from the date of payment, under section 4389.-Doney v. Northern Pacific Ry. Co., 209. Contracts-Right of Action by Third Party-Complaint.

19. To entitle a third person to enforce a contract made between two others, under section 4970, Revised Codes, the complaint must show that it was expressly made for his benefit, or for the benefit of a class of persons to which he belongs, i. e., he, or they, either must be named therein or otherwise sufficiently described or designated; the fact that the contract may incidently benefit him or them, being insufficient.-McKeever v. Oregon Mortgage Co., Ltd., 270.

Receivers Insolvency of Defendant-Insufficient Showing.

20. Where, in an action to set aside an oil lease as fraudulent, the complaint and affidavit of plaintiffs upon which a receiver was appointed without notice, did not affirmatively show that defendants were insolvent, the appointment was unwarranted.-Martin v. Hover, 302.

Same Complaint and Affidavit-Verification.

21. A receiver may be appointed upon the complaint if verified upon positive knowledge, or upon the complaint and a proper affidavit so verified.-Martin v. Hover, 302.

Same Complaint-Verification by Mentally Incompetent-When Insufficient.

22. Where the complaint in an action to set aside an oil lease on the ground of fraud alleged, inter alia, that the lessor was not only ignorant and without experience in business, but so far incompetent as to be incapable of understanding ordinary legal instruments and ever ready to follow any suggestions made or advice given him by one in whom he had confidence, his verification attached to the complaint had no evidentiary value, and was therefore insufficient as a foundation for the appointment of a receiver without notice.— Martin v. Hover, 302. Pleadings-Complaint-Amendment to Conform to Proof-When Rule not

Applicable.

23. The rule that the complaint may be deemed amended after trial to conform to the proof cannot be invoked where the amendment involves a change in the issues of the case and does not conform to the theory upon which it was tried.-United States Nat. Bank v. Great Western Sugar Co., 342.

Trial on Agreed Statement-Waiver of Defects-Variance Appeal.

24. Where a cause is tried on an agreed statement of facts which purports to contain all of the evidence, the pleadings become immaterial except in so far as admissions therein contained are concerned, the trial court must render judgment on the merits of the case as

PLEADING AND PRACTICE.

disclosed by such statement, and the supreme court on appeal will affirm the judgment where under the facts as agreed plaintiff was entitled to prevail even though there was a fatal variance between the pleadings and the proof.-United States Nat. Bank v. Great Western Sugar Co., 342.

Pleadings-Motions-Nature of-How to be Determined.

25. In determining the character of pleadings, motions and other papers filed in an action, the object sought to be attained is controlling. State v. Stein, 441.

Personal

Injuries-Complaint-Insufficiency.

26. Complaint, in an action by a railway employee for injuries caused by the breaking of a lever used in the operation of semaphores, which, while averring that for a long time the lever had been cracked, defective and dangerous, that defendant negligently and carelessly permitted it to remain in such condition for a long period of time, and knew of such condition of the lever, or by the exercise of reasonable care and caution should have known thereof, etc., failed to specify the time during which defendant had knowledge, or opportunity to know, of the defect in the lever, held fatally defective. Boyle v. Chicago, Mil. & St. P. Ry. Co., 453. Same-Complaint-Sufficiency-How Tested-Exception Saved

Purposes.

for All

27. The sufficiency of the complaint may be tested by demurrer and objection to the introduction of any evidence under it, and exceptions once saved to adverse rulings thereon are saved for all purposes.Boyle v. Chicago, Mil. & St. P. Ry. Co., 453.

Same Complaint-Insufficiency-Amendment-Proper

28.

Denial.

Where the attention of plaintiff in a personal injury action had been called to a fatal defect in her complaint by general demurrer, which was overruled, and by objection, at the commencement of the trial, to the introduction of any testimony on the ground of the insufficiency of the pleading to state a cause of action, also overruled, thus affording her ample opportunity to correct the defect, refusal to permit amendment at the close of all the testimony and after defendant had moved for a directed verdict on the same ground among others, was not an abuse of discretion.-Boyle v. Chicago, Mil. & St. P. Ry. Co., 453. Negligence-Proximate Cause of Injury-Complaint must Allege-Excep

tion to Rule.

29. Since negligence does not give rise to a cause of action unless it was the proximate cause of injury, the complaint must disclose the causal connection between the acts of negligence alleged and the injury suffered, unless such connection is necessarily inferred from the facts stated, in which event a specific allegation to that effect may be dispensed with.-O'Neil v. Christian, 460. Same-Causal Connection Between Negligence and Injury-ComplaintInsufficiency.

30. Complaint in an action to recover damages for grain burned in the stack due to alleged negligence in the person doing the threshing, held insufficient to show a causal connection between the negligence and the burning; held, further, that the contention that from the allegations that the threshing-engine had been placed to the windward of the stacks of grain, that the smokestack thereon was old and worn, that, if a spark-arrester was used, it was in the same condition and full of holes, that coal of inferior quality was used

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