Wyman, Partridge & Co. v. Boston Blacking Co. , 175 F. 834 ( 1909 )

PUTNAM, Circuit Judge.

This case was heard on general demurrer. The declaration contains 12 counts, but the demurrer did not relate to the first 4 counts. For all the purposes of the demurrer, counts 5 and 6 are the same. These counts were apparently based on the Revised Statutes of the United States, sections 4475 and 4476 (U. S. Comp. St. 1901, p. 3052). It is properly admitted, however, that inasmuch as these sections impose only a criminal penalty, no civil action lies directly in consequence of an}? violation thereof. They do not come within that class of statutes which vest a title, and still leave a remedy at common law, although special remedies are given thereby. Therefore, in addition to what now appears in these counts, there must be a specific allegation of enough to support an action at common law, say fdr negligence or willful tort.

It was, however, claiméd at bar that violations of these provisions of the statutes of the United States, under the circumstances of this case, are evidential facts in an action for negligence or willful tort. Of course, if either negligence or willful tort were alleged, there must be supporting allegations of particulars in reference thereto; and it is possible that acts in violation of the statute cited might be assigned by such particulars. Whether or not, however, such violations would prove material to the cause of action, would involve matters of fact to be determined by the jury under the instructions of the court. It is plain that nothing which can be assigned in that direction in violation of the statute can amount as a matter of law to either negligence or willful tort; and, therefore, these counts are not sufficient, even under a general demurrer.

Next come counts 7 and 8. These counts contain elaborate references to the sections of the Revised Statutes of the United States stated; and it is claimed by the defendant that they fall into the same class with counts 5 and 6. It is true that, on a casual reading, they would seem to be based on those statutory provisions. Nevertheless, the plaintiff claims that they are good at common law. It is true they contain allegations in an alternative form, and allegations which, if based on the sections of the Revised Statutes referred to, would render them multifarious. Also, in view of the position taken at bar that these counts are good at common law, they contain much surplusage. Nevertheless, we find in them allegations of negligence, although not such allegations as are regarded as in the best form according to the rules of pleading at common law, which rules prevail in this district; so that, as multifariousness and surplusage are not defects, unless especially assigned, either at common law or under section 954 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 696), these counts must stand as the record is now made.

The remaining counts are based on the statutes of the state of Massachusetts. Inasmuch as the counts show that the damage which resulted from the facts alleged occurred without the state of Massachusetts, it is claimed by the defendant that in that respect the state statutes have only a local effect. It is true that the declaration should show that the illegal acts out of which the damage resulted were performed within the jurisdiction of the state which enacted the statute prohibiting them. That being shown, inasmuch as the result, 'where-ever occurring, forms the basis of a purely civil remedy, it is governed by, the same rules which apply to a remedy at the common law for any injury which may follow within one jurisdiction as the consequence of an illegal act done in another jurisdiction. Therefore this projrosition of the defendant cannot prevail.

Defendant also claims as to these counts that the statutes relate only to oils intended to be used for illuminating purposes. We do not so understand them. Although some parts thereof are thus limited, other parts are not. The parts not thus limited are within the purview of these counts. The allegations of these counts are, perhaps, subject to. the same objections as to multifariousness and alternative statements which we have observed with reference to other counts. On the other hand, this is not entirely clear, because the pleader may perhaps well allege a very considerable series of events intervening between the illegal act in Massachusetts and the injurious result in another jurisdiction. For the reasons already stated, however, we have no occasion on a general demurrer to investigate this class of questions, except so far as to satisfy ourselves that there results no such uncertainty as the law of pleading recognizes. Notwithstanding the complicated allegations in these counts, we are compelled to decide, after careful investigation, that we do not find that degree of uncertainty which is available under a general demurrer; so that the result of the whole is that we decide that counts 5 and 6 are insufficient in law, and that the remaining counts will stand the plucking of a demurrer which contains no special assignments of error.

The fifth and sixth counts are declared insufficient in law, the demurrer ds overruled as to all other counts, and the defendant has leave to plead over.

* For other cases see same topic & § otiiiihe in Dee. & Am. Digs. 1907 to date, & Rep’r Indexes