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pass over said crossing at grade, which cross- and determined by the exigencies of the ing is at present protected by appliances present public travel over said crossing, and commonly known as safety gates, and by a that in order to give force and precision to flagman, but, owing to the heavy travel over the order of the court and to enable the desaid crossing by pedestrians, vehicles, and fendants more readily to comply therewith, street cars, and the continual and constant and the informant more readily to inform passage of trains at a high rate of speed the court in the event of noncompliance with over and along the said railroad tracks at. its order, if such should be the case, that the said street, the inhabitants of the city of court may inquire into and thereupon direct Rahway and all other persons passing along wbat method of crossing, whether by change said street and across the said railroad of grade of railroad tracks or of Irving tracks at that crossing are constantly and street, or otherwise, should be adopted by the continuously subjected to inconvenience, de- defendants and constructed and maintained lay, and obstruction in the conduct of their by them as a good and sufficient crossing affairs, and to the liability of bodily injury over the said Irving street; and for other and and death, and that the passengers and em- further relief. ployés upon the trains operated upon the To this information the defendants, the said railroad tracks are also constantly and United New Jersey Railroad & Canal Comcontinuously subjected to the liability of bod- pany and the Pennsylvania Railroad Comlly injury arising from the collision of such

pany, have jointly and severally demurred. trains with vehicles upon the said crossing; The demurrer is general in form, and it alfurther, that the Pennsylvania Railroad Com- so purports to specify several causes of depany, lessee as aforesaid, has been requested murrer in addition. That part which is genby the said board of railroad commissioners eral reads as follows: "(1) These defendto provide some other method for the passage ants by protestation, not confessing all or of travel over said Irving street, which will any of the matters and things in the said in. remove or alleviate the present inconven- formation contained to be true in such manlence, delay, obstruction, and danger herein- ner and form as the same are therein set before set out, and render the said crossing forth and alleged, demur thereto, and for a good and sufficient passage over or under cause of demurrer show that the said inthe said railroad, as required by the act of formant hath not, in and by the said inthe Legislature incorporating the said New formation, made or stated such a case as en. Jersey Railroad & Transportation Company, titles him in this honorable court to any disbut that the said Pennsylvania Railroad covery from these defendants or either of Company, lessee as aforesaid, hitherto has them, or to any relief against them or elrefused, and still does refuse, so to do; fur- ther of them as to the matters contained in ther, that it is the duty of said Pennsylvania the said information or any of such matters. Railroad Company, lessee as aforesaid, by For further cause of demurrer the defendants virtue of the premises aforesaid, to construct aver (2) that it does not appear by the inand keep in repair a good and sufficient formation that the existing crossing of the bridge or passage over or under the said rail- railroad tracks by Irving street is not a good road wbere Irving street crosses the same in and sufficient crossing and passage, nor that the city of Rahway, so that the passage of the said defendants or either of them have carriages, horses, and cattle on said Irving not fully discharged their legal obligation in street shall not be impeded thereby, and that that behalf; (3) that the mayor and common this duty is a continuing duty which is not council of the city of Rahway are not made discharged when once performed, but always a party to the information; (4) that the must be measured by circumstances, and that board of railroad commissioners bas no lawthis duty now demands that the crossing as ful power or authority in respect to the conDOW maintained shall be discontinued and ditions alleged in the information to exist some other method of crossing substituted, at the crossing of Irving street and said rail. which will be, measured by present conditions road, nor any lawful power or, authority to and circumstances, a good and sufficient act as relator in the information; (5) that crossing within the meaning of the act in- this court is without jurisdiction to grant corporating the New Jersey Railroad & any relief under the information." Transportation Company.

The Attorney General now moves to strike The prayer is that the United New Jersey out the demurrer (1) for the reason that it Railroad & Canal Company and the Pennsyl- contains in fact both a plea and a demurrer vania Railroad Company, lessee of the United to the information; also (2) to strike out the New Jersey Railroad & Canal Company, may, first cause of demurrer because it is too genby mandatory injunction, be compelled to con- eral, in that it does not state with sufficient struct and keep in repair good and sufficient particularity the cause alleged, and also bebridges or passages over or under the said cause it does not contain any confession of railroad tracks where Irving street crosses the truth of the matters set out in the inthe same in the city of Rahway, so that the formation, and thereafter denies that such passage of carriages, horses, and cattle on matters entitle the informant to any dissaid Irving street shall not be impeded there- covery or relief, and because it raises a ques

as

the matters contained in the information ; put in in case the demurrer should be also (3) to strike out the second cause of de- overruled. Dan. Ch. Pl. & Pr. *585. The murrer because it is too general, and does only criticism which can be made upon the not aver with sufficient particularity any form of the demurrer, so far as I can see, cause of demurrer; also (4) to strike out the is that it asserts that the informant is third cause of demurrer because it does not not entitled to any "discovery" as well as set forth with sufficient particularity any any relief. As no discovery is prayed, the right on the part of the defendants to com- demurrer might better have a verred that the piain of the misjoinder or nonjoinder of oth- informant had not made or stated such & er parties, nor the necessity for a joinder of case as entitles him to any "relief” against said parties; also (5) to strike out the fourth the defendants, omitting reference to discovcause of demurrer because the same does not ery. However, the assertion that the informset forth with sufficient particularity the rea- ant is not entitled to "discovery" should be son why the board of railroad commissioners and will be disregarded surplusage. has no lawful power or authority in respect Strictly speaking, there is no "equity” in the to the conditions alleged in the information, information at all. . It is not a bill praying nor to act as relator; also (6) to strike out relief under any recognized head of equity the fifth cause of demurrer, because it does jurisprudence, but is a pleading invoking the not set forth with sufficient particularity aid of the court under a statutory jurisdicwherein the Court of Chancery is without tion recently conferred. The court of chan. jurisdiction to grant any relief under the in- cery is the forum pointed out for the adformation. The motion to strike out is rest- ministration of the remedy given by the leg. ed on six different grounds, and the causes islative enactment upon the particular stato of demurrer, including the general demurrer of facts pleaded because its writ of injuncfor want of equity, number five. The first tion is the only appropriate method of entwo objections go to the general demurrer, forcing the statutory duty imposed upon the which I have numbered 1. A motion to strike defendants. However, the defendants are out an insufficient demurrer is in accordance entitled to resist the informant by any dewith the established practice. Bishop v. fense known to equity pleading, one of which Waldron, 56 N. J. Eq. 484, 486, 40 Atl. 447. is by demurrer. And the demurrer may be of

The several grounds of the motion to strike any kind recognized in practice. There are, out will now be considered in their order. as is well known, two kinds, general and

First. The informant asserts that the de- special; and, although rule 209 of this court murrer contains in fact both a plea and a de- requires that all demurrers, whether general murrer to the information. This objection or special, shall distinctly specify the ground on the argument was leveled against that or several grounds of demurrer, it has been part of the demurrer which is general and held that a simple statement of want of equiwhich is above recited verbatim. The con- ty, in the usual language of a general de tention of the Attorney General in this re- murrer, will constitute a sufficient specificagard is that the demurrer does not unequivo- tion of the ground of demurrer in cases cally admit the truth of the information, and, where the court finds on looking at the comthat the pleading, as drawn, only qualifiedly plainant's bill that his right to relief is doubtadmits the truth; that is, admits the truth ful or uncertain. Essex Paper Co. v. Greaonly for the purpose of argument, and re- cen, 45 N. J. Eq. 504, 19 Atl. 466; Safford v. serves the question of fact. He cites Gra- Barber (N. J. Ch.) 70 Atl. 371. If in a cause ham v. Spence (N. J. Ch.) 63 Atl. 344, as au- invoking a strictly statutory jurisdiction of thority for his position. Neither that case the court the defendant conceives that such nor Teeter v. Veitch, 66 N. J. Eq. 162, 57 a case has not been made by the bill, or other Atl. 160, upon which it is rested, bear out equivalent pleading, as entitles the complain. counsel's contention. The form of the de- ant to relief, he may file a demurrer general murrer interposed in neither of those cases in form, which form is just as appropriate is set out in the opinions. In the former case as a general objection to relief under a stat it is distinctly said that a demurrer which ute as under a principle of equity, if the lan. denies facts alleged in the bill will not be guage employed is that such a case has not considered; and in the latter it is held that, been made or stated as entitles the complainif a demurrer introduces any facts or mis- ant to relief. Now, that is exactly what the recites the statement of the bill, it will not general demurrer in this case avers, namely, be sustained. The demurrer itself is in the that on the face of the information the in. form immemorially used in cases where an formant is not entitled to relief. That quesattack is made upon a bill for want of equity, tion the demurrant is entitled to solemnly and follows the form of the commencement of argue, and it cannot properly be considered a demurrer in Dick. Ch. Pr. p. 89, and fol- and decided on a motion to strike out, unless lows the general averment of want of equity. upon inspection of the information it so Id. p. 92. Protestation against the truth of clearly appears that the informant is entithe matters contained in the bill is a prac- tled to relief that the demurrer may be said tice borrowed from the common law, and to be frivolous. In this connection it is undoubtedly intended to avoid conclusion in sufficient to remark that the matter sub fu

form of the demurrer, and consequently the only question that is decided is as to the form of the pleading. Its form, in my judgment, is good and sufficient.

Second. It is asserted that the first specified cause of demurrer is too general, in that it does not state with sufficient particularity the cause alleged, and because it denies any confession of the truth, and denies that the statements of the information entitle the informant to any relief, and because it raises a question of fact upon the denial of the truth of the matter contained in the information. This is disposed of in the observations already made on the form of the general demurrer.

Referring again to the form of a demurrer as regulated by rule 209, it is to be obseryed that it has been held that, where the defect in the bill is obscure or latent to such an extent that the court cannot readily discern it, an explicit statement of the ground will be required. Essex Paper Co. v. Greacen, ubi supra. And, where the want of power in the court to grant the relief prayed springs out of some cause which can be distinctly stated in the demurrer in an intelligible proposition, whether it be collateral to the bill, strictly speaking, or whether involved in the main case, then the cause of demurrer must be specified. Safford v. Barber, ubi supra. The grounds of demur. rer specified in the pleading under consideration will now be examined with a view to ascertaining whether the specifications distinctly point out specific objections to the information.

Third. The assertion is that the second specified cause is too general, and does not aver with sufficient particularity any cause of demurrer. This cause asserts that it does not appear by the information that the existing crossing at Irving street is not good and sufficient, or that the defendants, or either of them, have not fully discharged their legal obligation in respect to it. mind the assertion in the demurrer in this bebalf is insufficient. The information shows by the recital of facts which are above set forth, and which it is not necessary here to repeat, that the railroad crossing at Irving street, Rahway, is such as subjects to inconvenience, obstruction, and delay the citizens of this state who are required to pass and repass over the crossing on foot or with horses and wagons and subjects to the liability of bodily injury and death all such persons, and also the passengers and employés upon the trains of the railroad operated at the place in question; further, that it is the duty of the Pennsylvania Railroad Company, lessee, by virtue of the act of the Legislature incorporating the New Jersey Railroad & Transportation Company, to maintain a good and sufficient passage over or under the railroad at Irving street, and

charged when once performed but always to be measured by circumstances, and that that duty now demands that the present crossing shall be discontinued and some other method of crossing substituted, which will, measured by present conditions and circumstances, be a good and sufficient crossing within the meaning of the act incorporating the railroad company last mentioned. The information contains an averment of facts showing, or tending to show, the inadequacy and danger of the present crossing of Irving street, and the specification of demurrer directed at this state of facts is that they do not make it appear that the crossing is not good and sufficient. Here is no denial of the truth of the facts alleged, but an attempted denial that those facts warrant the conclusion which the pleader draws from them. This in my opinion may not be done, because whether or not the crossing is at the present time of the character attributed to it by the information is an issuable averment, which is confessed by the demurrer. Pope v. Skinkle, 45 N. J. Law, 39. Although a demurrer only confesses the matters stated in the bill to be true which are well pleaded, and does not admit any matters of law which are suggested in the bill or inferred from the facts stated (1 Dan. Ch. Pl. & Pr. *545; Redmond v. Dickerson, 9 N. J: Eq. 507, 59 Am. Dec. 418; Paterson H. R. R. Co. v. Jersey City, 9 N. J. Eq. 434), nevertheless because in the information it is averred that the crossing is insufficient and dangerous, stating facts tending to warrant that conclusion, and because the demurrer confesses those facts, a question is presented which is traversable and not demurrable.

Fourth. The informant contends that the third specified cause of demurrer is too general, and does not with sufficient particularity point out any right on the part of the defendants to complain of nonjoinder or necessity for the joinder of any other party. The cause alleged is that the city of Rahway is not made a party to the information. In Wilson v. Bellows, 30 N. J. Eq. 282, Mr. Justice Scudder, speaking for the Court of Errors and Appeals at page 284, said: “There can be no question that this defect in joining proper parties can be taken advantage of by demurrer where it appears on the face of the bill as it does in this case.” Whenever a want of parties appears on the face of a bill, it is a cause of demurrer, unless a sufficient reason for not bringing them before the court is suggested. 1 Dan. Ch. Pl. & Pr. *558. The Legislature has imposed upon the railroad company the duty of constructing and maintaining a railroad crossing at Irving street in the city of Rahway, and has also clothed the relator with the power and duty of enforcing this obligation of the railroad. Whether or not the charter of Rahway imposed upon it any duties in

To my

of the relator, or with reference to which it

(76 N. J. La 754) may or must act in conjunction with the

DORAN V. THOMSEN. relator, might properly be raised by plea. Certain it is that the information does not,

(Court of Errors and Appeals of New Jersey. and the demurrer cannot, give us any in

Nov. 16, 1908.) formation on the subject. Duties committed

1. MASTER AND SER NT (8 301*)-LIABILITY formerly to the municipality of Rahway and FOR INJURIES TO THIRD PERSONS-RELATION devolved upon the relator by the act of its OF PARTIES. creation, if any such there be, would seem

Where a father was possessed of an au

tomobile which be kept upon his premises, and to be duties now belonging to the relator un

his daughter, about 19 years of age, was ac der the rule for the construction of incon- customed to drive it and did so whenever she sistent statutes; but that is not a matter

felt like it, asking permission to use it when

the father was at home, but when not at home decided or even mooted upon this argument.

took it sometimes without permission, there beThere is nothing upon the face of the informa-ing no proof that the daughter was actually tion whereby it can be said that it appears employed by the father to operate the macbine, that the city of Rahway should be made a par- | daughter in using the machine for her own

held, in an action against the father, where the ty to the information, or that the defendants pleasure in driving her personal friends negliare injured by want of the presence of the gently injured a person in the highway, that municipality named as a party in the cause.

such proof was not sufficient to constitute the This objection to the cause of demurrer is

daughter the servant or agent of the master,

and that a motion for a direction of a verdict in my opinion well taken.

for the defendant should bave prevailed. Fifth. The motion is to strike out the

(Ed. Note.-For other cases, see Master and fourth cause of demurrer because it does not Servant, Dec. Dig. $ 301.* set forth with sufficient particularity the For other definitions, see Words and Phrases, reason why the relator has not lawful power vol. 7, pp. 6422-6429; vol. 8, p. 7798.] or authority in respect to the premises nor 2. MASTER AND SERVANT (8 302*)-INJURIES to act as relator. The answer to this is that TO THIRD PERSONS-SCOPE OF EMPLOYMENT. the assertion by the demurrant that the re

An act by a servant not malicious is with

in the principle that, to render a master liable lator has no power in the premises goes di

for the negligent act of the servant, such act rectly to the question of the validity of the must be within the scope of the employment. act under which the relator was created, and (Ed. Note.-For other cases, see Master and to the scope and extent of its powers. It is Servant, Cent. Dig. 88 1217-1225; Dec. Dig. ģ only another statement of the want of juris

302.* ] diction appearing upon the face of the whole 3. MASTER AND SERVANT (8 302*)—INJURIES information, and it is in my judgment com

TO THIRD PERSONS-SCOPE OF EMPLOYMENT. prehended under the general demurrer and is

To render the master liable for the negli

gent act of the servant, the act must be done bad as a specified cause.

for the purpose of executing the master's orSixth. It is claimed that the demurrer ders and in doing his work and while actually does not set forth with particular sufficiency

engaged in serving the master, and it is not

enough to say that the injuries complained of wherein this court is without jurisdiction to would not have been committed without the fagrant any relief under the information; the cilities afforded by the servant's relations to his cause alleged being that the court is without

master. such jurisdiction. This is only a statement [Ed. Note.-For other cases, see Master and in another form of the general want of juris

Servant, Cent. Dig. 88 1217-1225; Dec. Dig. $

302.*] diction, and for the reason given as to the last cause considered it is insufficient. If it 4. MASTER AND SERVANT (8 301*)— LIABILITY refers to any collateral matter, it should

FOR INJURIES TO THIRD PERSONS-RELATION

OF PARTIES, have been specifically stated. As the demur- The court charged the jury: "If she took rant by his formal demurrer first above re- that machine out at that time in pursuance of ferred to has attacked the power of the

a general authority of her father to take it

whenever she pleased for the pleasure of the court to grant relief generally, the attack

family, and for her own pleasure, for the purmade in the sixth specified cause of demur- pose for which the master bought it, for the rer may well be considered to refer to some purpose for which her father owned it, for the collateral matter, else it is entirely unneces

purpose for which he expected her to operate

it, then she was the servant of the father. Unsary to be pleaded, and it should, for want der those circumstances, that was the business of particularity, be overruled.

for which the father bought the machine." The result is that the motion to strike out

Held error, because it based the creation of the

relation of master and servant upon the purthe first cause of demurrer—that is, that

pose which the parent bad in mind in acquiring part of the demurrer which is general in ownership of the vehicle and its permissive use form-will be overruled, and the motion to by the child, ignoring an essential element in

the creation of that status as to third per strike out the specified causes of demurrer

sons, that such use must be in furtherance of, will be granted, and they will all be struck

and not apart from, the master's service and out. That leaves the cause before the court control. on a general demurrer limited in its scope [Ed. Note.-For other cases, see Master and under the rule of court and decisions to Servant, Dec. Dig. $ 301.*] which reference has been made.

(Syllabus by the Court.)

to

ises. His daughter, about 19 years old, was A.

She used it someThomsen. From a judgment of the Supreme times twice a day. At the time of the acCourt, defendant brings error. Reversed, and cident she had three friends in the car with a venire de novo awarded.

her, and was out for her own pleasure. No Collins & Corbin, for plaintiff in error.

other member of the family was with her; Willard W. Cutler, for defendant in error,

so that the machine was then being run by

the daughter upon no errand of the father. VOORHEES, J. This action was brought

There was no evidence to show that defendto recover for personal injuries inflicted upon

ant's daughter was employed by him to opthe plaintiff by being run into by an auto

erate the machine, but she was allowed to mobile at Morristown. A demurrer was filed

do so from time to time and drove it whento the declaration, originally consisting of

ever, she felt like it, as also did her brother. three counts, and was sustained as to the

The defendant's testimony was that he first and third counts, but overruled as to

bought the machine "for our own use, the the second count. The Supreme Court said:

same as a person might buy a horse and carIt [the second count] in effect avers the

riage for the family"; that it was operated relationship of master and servant, and that

mostly by his son and daughter, and, when the accident was caused by the negligence of

he was at home, they had to come and ask the servant while operating the motor ve.

for permission to use it, but, when not at hicle for the master.” Doran v. Thomsen,

home, they sometimes took it without per74 N. J. Law, 445, 66 Atl. 897. The allega.

mission. On the day in question the father tions of the second count are that the de

was absent in New York City, and did not fendant possessed an automobile of great

actually know that his daughter was intendpower capable of being operated at a speed ing to use the automobile, but he knew that of 60 miles an hour, and thereby it became she did use it whenever she desired to do so. the defendant's duty to use due care in its

She on this particular day took it of her management while being operated along the

own accord without asking permission. This public highways; yet the defendant, not re

evidence was uncontradicted. The case was. garding his duty, consented and allowed the submitted by the trial court to the jury solesaid vehicle in his possession and control to ly upon the theory that the daughter of the be operated along the public highways at defendant in driving the machine was the desuch a high rate of speed, to wit, at 60 miles fendant's servant, and instructed the jury an hour, that the vehicle was not in safe and that, unless they found that the daughter proper control, and could not be properly was such servant, the defendant would not managed by the person in charge, and that

be liable. on the 22d of September he did negligently T'he mere fact of the relation of parent direct, consent, and allow the said vehicle in and child would not make the child the servhis possession to be operated by a member of ant of the defendant. In McCauley v. Wood, his family so carelessly and without regard 2 N. J. Law, 86, Chief Justice Kirkpatrick to the safety of the plaintiff and other per- in a case brought against a parent for the sons in the highways at such a high rate of trespasses of her sons as such said: “Upon speed that the vehicle was not under control principles of law one person can never be of the person operating the same, and then made liable for the trespass of another. It and there through the negligence of the per- is true that, if one command or authorize son operating it ran into and collided with his servant to commit a trespass, he is rethe plaintiff, by means of which he was in. sponsible himself, but then it is the trespass Jured. If the defendant is liable for the of the master according to the well-known negligent manner in which the vehicle was maxim of the law, 'Qui facit per alium facit operated, then a jury question was present- per se,' and it must be so charged in the deced, and, as to that negligence, the court prop- laration.” To constitute the relation of maserly submitted the case to the jury; but ter and servant as to third persons, it is there is another and preliminary question to not essential that any actual contract should be considered, which arises upon motions to subsist between the parties, or that compennonsuit and to direct a verdict for the de- sation should be expected by the servant. fendant.

While the relation of master and servant in The question thus presented is whether up- its full sense invariably and only arises out on the theory adopted by the Supreme Court of a contract between the servant and the in allowing the second count of the declara- master, yet such contract may be either extion to stand and upon which the case was press or implied. “The real test as to third tried the defendant can be held liable. That persons," says Mr. Wood in his work on theory involves the application of the doc- Master & Servant, p. 11, § 7, “is whether trine of respondeat superior arising out of the act is done by one for another, however the relation of master and servant or of trivial, with the knowledge of the person principal and agent. The automobile in ques- sought to be charged as master with his astion was the property of the defendant. He sent express or implied, even though there

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