Baltimore & Ohio Railroad v. Ritchie

Grasos, J.,

delivered the opinion of the Court.

This cause being at issue in the Court below, and the *196 attorney of the appellant having left the State, a rule was laid upon it to employ new counsel, or that judgment would be rendered against it by default. At the October Term, 1866, one year after the above rule was laid, no counsel having appeared, judgment by default was rendered against the appellant “ on the rule to employ new counsel.” At the October Term, 1867, an inquisition was had, and the damages assessed, at which time an attorney appeared for the appellant, and participated in the proceedings.

The first question to be considered is, whether a Court can legally lay such a rule, or enter a judgment by default against a defendant, who has failed to comply with it when the case is at issue. It was contended by the counsel for the appellee that the Court had the power so to do, and relied upon the case of Darnall vs. Harrison, 1 H. & J., 137 , in the General Court, as authority for the practice. In that case the rule to employ new counsel not having been complied with, and an affidavit having been filed showing that a copy of the rule had been served on the defendant, the plaintiff, at the same term at which the rule was laid, moved the Court for judgment or trial, and it was “ruled accordingly.” The motion being for judgment, or trial, it does not appear that the plaintiff would not have been required to proceed ex parte with the trial, instead of a judgment by default being entered; for the rule was not enforced, as an appearance was entered for the defendant and a judgment confessed. That ease is therefore no authority for the practice contended for by the appellees’ counsel. It was further urged that this Court must intend that, in laying the rule and entering judgment by default against the appellant for not having complied with it, the Court below acted in accordanee with its established rules, and that, therefore, the judgment by default must stand. It does not appear from the record that there was any such rule of Court, and this *197 Court will not intend the existence of a rule which is based upon neither justice nor any provision of law. The Court below had no authority to lay such a rule, nor to enter the judgment by default upon a non-compliance with it, and the judgment must be reversed. The appellant had once appeared to the suit by its attorney, and had filed its pleas denying the appellees’ right to recover, and upon a failure to comply with the rule to employ new counsel, a rule adopted out of courtesy to suitors, the only power the Court could rightfully exercise was to authorize the appellees to proceed ex parte with the trial of the cause. It was also contended by the counsel of the appellees that, as the appellant employed an attorney after the judgment by default, who participated in the proceedings at the time of the taking of the inquisition, without having moved to strike out the judgment by default, all irregularities in the judgment were waived, and that the appellant is estopped from urging any objection to that judgment in this Court. We cannot concur in this view of the case. The, appellant had the right to participate in the taking of the inquisition for the purpose of preventing evidence, not legally admissible, from being submitted to the consideration of the jury, as well as for the purpose of endeavoring to reduce the damages. This it had a right to do without waiving any, of its rights, and without being estopped thereby from availing itself of any errors in the previous proceedings in the cause, which may furnish sufficient cause for reversing the judgment. As the judgment by default was erroneously entered, and the case may have to be remanded, it becomes necessary for this Court to examine the other proceedings in the cause, for the purpose of ascertaining whether there is any error in them.

The declaration contains but one count, and alleges in-" jury both to the person and personal property of the plaintiff, by reason of his horse having become frightened and *198 having run away, in consequence of the appellant’s negligence in not having so constructed its bridge, and in not placing safeguards on and about it, for the purpose of preventing horses of persons travelling the turnpike road from being frightened. To this declaration a demurrer was filed containing and assigning four causes of demurrer. We are of opinion that the demurrer was properly overruled, because the first three causes assigned consisted of matter which could not be known to the Court officially, and proof of which could only be furnished by the charter of the appellant, which "was not offered in evidence, and because the fourth cause was not sufficient. > It is true that not more than one distinct cause of action can be pleaded in the' same count, yet where different and Separate injuries have resulted from the same act or cause, the injuries or damages may be united and counted upon in the same count. There was, therefore, no error in overruling the demurrer.

It was contended by the counsel of the appellant, that the Court below erred in striking out its pleas in abatement, and overruling its motion to strike out the appearance of the executors of Albert Ritchie, by whom the suit had been instituted in his lifetime, and to dismiss the suit. The plea in abatement was not filed within the time required by the rule of the Court; and even if it had been, it did not go to the whole cause of action, and must therefore have been overruled. The motion to strike out the appearance of the executors, and dismiss the suit, was, in substance and effect, a plea in abatement, and was therefore properly overruled. We think it perfectly clear, however, that the suit, so far as the injury to the person of the plaintiff was involved, abated without a plea in abatement, and that the appellant could have taken advantage of it by asking the instruction of the Court. Suits for injuries to the person or character die with the person, and cannot be maintained by the representatives of the *199 deceased party. Before the Acts of 1785, chap. 80, and 1798, chap. 101, sub-chap. 14, sec. 4, all personal actions abated by the death of a party, and it was necessary for his representatives to commence the action anew; and the object of those Acts was to prevent this inconvenience and delay, and to enable the representatives of deceased parties to prosecute such actions as had been instituted by their decedents, during their lives, and which did not die with the person.

Those Acts never were intended, however, to prevent the abatement of actions which died with the person. The appellees were therefore not entitled to recover for the alleged injuries to the person of their decedent, and the appellant’s proper means of availing of this was not by a plea in abatement, which went only to part of the cause of action, but 'by asking the instruction of the Court to the jury.

Upon motion of the appellees, the Court below struck out the first, second, and fourth pleas of the appellant. The first two directly traversed one or more material allegations of the» declaration, were issuable pleas, and, if found for the appellant, the verdict must have been in its favor. A defendant is not obliged to traverse all the averments of the declaration, which contains several allegations of distinct facts, proof of all of which is necessary to make up the plaintiff’s right to recover; but in each plea he may traverse one or more of the material averments of the narr., and upon the failure of the plaintiff' to prove any one of such material averments, the verdict must be for-the defendant. Such was the character of the first and second pleas, filed by the appellant in this case, and struck out by the Court. They should have been permitted to stand, and the appellees ought to have been required to reply to or join issue upon them. The fourth plea was argumentative and defective, and there was no error in striking it out.

*200 (Decided 30th June, 1869.)

The declaration charges, that it was the duty of the appellant to erect and keep a bridge over the railroad, at the point where it intersects and crosses the Frederick and Washington Turnpike road, in such manner that all persons might travel along and over said turnpike road with their horses, &e., free from danger, on account of their horses being frightened by the cars and engines of the appellant, used on its railroad, at the said point of intersection ; and that it was the duty of the appellant to place such safeguards on and about said bridge as were reasonably necessary, to prevent the horses of persons travelling and using the turnpike, from being frightened and alarmed at the cars and engines, &c. The charter of the appellant was not offered in evidence, nor is it contained in the record, nor, as it is a private act, can this Court officially take notice of it. It was, however, referred to in the course of the argument, and we have examined it, and we have no hesitation in saying, that if it were properly before us for our construction, it imposes upon 'the appellant no such duties as those alleged in the narr. The 10th section of the Act of 1826, chap. 123, by which act the appellant was chartered, provides “ that whenever in the construction of the said road or roads, it shall be necessary to cross or intersect any established road or way, it shall be the duty of the president and' directors of said company so to construct the said road across such established road or way, as not to impede the passage or transportation of persons or property along the same.”

In view of the duties imposed by its charter upon the appellant, we are clearly of opinion that the appellees cannot recover, under the pleadings in this case, either for the injury to the person or property of the original plaintiff.

The judgment of the Court below will be reversed, with leave to the appellees to take out a procedendo should they desire it.

Judgment reversed.