Doolittle v. Laycock

79 N.W. 408, 103 Wis. 334, 1899 Wisc. LEXIS 196

• Court: Wisconsin Supreme Court
• Decided: June 2, 1899
• Status: Published

Opinion

BardeeN, J.

“ The general and well-established rule in pleading is that the pleader should state the particular facts which constitute his cause of action or defense, and a general allegation that the opposite party caused an injury or loss to the pleader by carelessness or negligence, or by his fraudulent acts, is not to be tolerated as a sufficient statement of facts, unless the opposite party is disposed to admit the truth of such general statements by a demurrer, or be takes issue upon them.” Young v. Lynch, 66 Wis. 514. This language •of Judge Taylor is applicable to the pleading under consideration. It is true that the allegations showing the plaintiffs’ liability are quite general, and that the precise act or •omission which caused the resulting damage is not stated. Negligence or incompetency is a mixed question of law and fact, and hence allegations of negligence or incompetency, as applied to the conduct of a party, are not mere conclusions of law, but rather statements of ultimate facts. Many cases might be cited where courts have sustained pleadings upon mere general allegations of neglect or omission of duty, when they have been tested by demurrer. No doubt, the opposite party is entitled to have a more particular statement of the charge against him, but he cannot secure that relief by demurrer. His remedy is by motion to make the pleading more definite and certain. Fitts v. Waldeck, 51 Wis. 567; and see Carey v. C. & N. W. R. Co. 67 Wis. 608; Cheney v. C., M. & N. R. Co. 75 Wis. 223; Schneider v. Wis. Cent. Co. 81 Wis. 356; Monahan v. N. W. C. Co. 84 Wis. 596; Hanson v. Anderson, 90 Wis. 195.

The counterclaim alleges that plaintiffs were practicing attorneys; that they were employed by defendant; that they did not act for the best interests of defendant, but conducted the business confided to them “ incompetently, dishonestly, carelessly, and negligently,” and that in consequence thereof the defendant was compelled to pay and did pay two hundred and fifty dollars more than was justly due from him. Admitting these statements to be true, there is enough to raise an issue. Undoubtedly the pleading would have been susceptible to a motion to make more definite. It is very far from being a model, and would have received judicial condemnation had the proper proceeding been taken.,

By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.