Brooks v. Pullman Co.

213 F. 445, 130 C.C.A. 81, 1914 U.S. App. LEXIS 1900

Opinion

PER CURIAM.

[1] A demurrer to the declaration in this case has been sustained by the District Court, without opinion, and the plaintiff seeks to reverse the resulting judgment for the defendant. The declaration consists of a narrative of facts and circumstances framed with little regard for the requirements of good pleading, from which the conclusion sought to be drawn is that negligence of the defendant company, its servants or agents, damaged the plaintiff’s intestate, a passenger on one of its cars.

[2] Many of the matters alleged, perhaps admissible as evidence to support the plaintiff’s claim, are out of place in such a declaration. Other allegations are of conclusions of law, and of course not admitted by the demurrer. With the above are matters of fact alone and matters of mixed law and fact, all' so intermingled as to leave it difficult to disconnect that which is properly from that which is improperly alleged. No special demurrer was filed, which would have been the proper way to raise these objections. Rev. St. § 954 (U. S. Comp. St. 1901, p. 696). The only ground of demurrer is that the declaration is insufficient in law.

It may be that if the plaintiff’s evidence at a trial had tended to prove, without more, such facts as are well pleaded in the declaration, and he were here on exceptions to a directed verdict for the defendant, we should affirm the judgment below. But the case in its present form cannot be satisfactorily dealt with as one in which we have before us all the plaintiff's evidence. So to deal with it would, at least, require us to distinguish clearly that which is well alleged in the declaration from that which is not. In this task the parties, though apparently disagreeing as to what stands admitted by the demurrer, have hardly undertaken to afford us any assistance.

We think the case should be remanded for trial, with opportunity to the defendant to plead over.

The judgment of-the District Court is reversed, and the case is remanded to that court, with directions to permit the defendant in that court to plead over within such time as the court may fix; and the plaintiff in error recovers his costs of appeal.