don the rest. This court said, in effect: It might be difficult to tell in advance precisely upon what theory of the situation the loss claimed was recoverable. Of course, plaintiff was entitled to recover on whichever of the two theories of right thereto, the evidence might warrant. In general, the code requires a plaintiff to take a stand upon the cause of action he expects to recover on. But it is not always possible for a party to determine the exact ground of liability. In such circumstances, the defendant not being prejudiced for want of information regarding the injury to be redressed, there is no substantial reason why two apparent theories cannot, plaintiff acting in good faith, be joined up to such time as all reasonable uncertainty disappears as to which theory or cause of action, is the correct one. A complainant should not be precluded from presenting both of the somewhat inconsistent causes for adjudication so long as he has reasonable ground for not waiving either.

There is no precedent in our decisions to precisely fit the situation here, while there are several decisions, as we shall see, that might fairly have led the learned judge to conclude, as he did. The difficulties of the situation were such, that the reasoning in this opinion and the conclusion reached are not pregnant with any reflection upon the administration in the court below.

In McClellan v. Chippewa Valley E. R. L. Co., 110 Wis. 326, 85 N. W. 1018, in harmony with the established principles of negligence law before mentioned, it was decided that there is such a definite distinction between a cause of action grounded on want of ordinary care and one grounded on the degree of wrong called gross negligence, that evidence tending to prove the latter is not admissible under a complaint charging only the former, because, said the court, "the defendant is entitled to know what the cause of action is upon which the plaintiff relies." It was not intended thereby to declare that it is incumbent on the plaintiff to make a binding choice of remedies for his injury where he cannot safely do so, and the defendant would not be prejudiced by a failure in that regard. Of course, a defendant might be prejudiced by plaintiff presenting one cause of action, as if he relied on that alone, and then being allowed to recover on another.

In Wilson v. Chippewa Valley E. R. Co., 120 Wis. 636, 98 N. W. 536, 66 L. R. A. 912, the court, consistently with the foregoing, held that if a plaintiff seeks to recover on a complaint charging gross negligence alone, he cannot recover on the ground of failure of defendant to exercise ordinary care.

In Rideout v. Winnebago Traction Co., 123 Wis. 297, 101 N. W. 672, 69 L. R. A. 601, the same subject came up in a little different way. The complaint charged the two degrees of wrong confusing them together. On the trial it was claimed on behalf of plaintiff, the intention was to charge gross negligence only. Evidence was introduced which might tend to support such charge or the milder degree of wrong. The court refused to adopt plaintiff's view of his pleading and submitted the case to the jury in both aspects, resulting in a verdict in favor of plaintiff on both. On appeal it was held bad for inconsistency; that there was, in effect, a finding that defendant was and that it was not guilty of each of the charges of misconduct. The cause was reversed and remanded for a new trial on the charge of gross negligence as the only one contained in the complaint. Haverlund v. C., St. P. M. & O. Ry. Co. ante, p. 415, took the same course.

We perceive no reason for departing from anything decided in the cases referred to. They do not militate against both causes of actionable wrong being stated in the same complaint, if stated separately, substantially eliminating indefiniteness as to plaintiff's position by indicating, clearly, that he does not know precisely the phase of actionable wrong the evidence and inferences therefrom will disclose and that, therefore, he proposes to challenge defendant on both and recover on the one actually possessed, but not on the other. It follows from the fact that the two causes of action belong to the same class, satisfy in all respects the letter of the statute respecting the joinder of causes of action, and are not inconsistent in that claiming the benefit of one necessarily waives the other. They are only inconsistent in that though one, for precautionary purposes claim the benefit of both, he can have, in the ultimate, the benefit of but one and not that one except upon a verdict definitely and consistently finding the facts.

The foregoing answers the propositions stated for decision in the opening lines of this opinion. It vindicates the letter and likewise the spirit, before referred to, of the code. It regards every phase of our judicial code of negligence law, as the same, without material change, has stood the test of more than half a century of administration, and vindicates and harmonizes all the holdings of the court relating to the subject under discussion, leading logically to a decision in this case that the trial court erred in requiring plaintiff to stand upon one of his definitely stated causes of action, abandoning the other, and erred in dismissing the case for noncompliance with such requirement.

BY THE COURT: The judgment is reversed, and the cause remanded for further proceedings according to law.1 TIMLIN, J.: I concur in the result reached, in this case.

1 Identically the same joinder was permitted in Waechter v. St. Louis & M. R. R. R. Co. (1905), 113 Mo. App. 270.

CHAPTER IV.

THE COMPLAINT OR PETITION.1

SECTION 1. FACTS CONSTITUTING A CAUSE OF ACTION.

BOX v. CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY.

Supreme Court of Iowa. 1899.

107 Iowa, 660.

Action for personal injuries. In August, 1892, the plaintiff was in the employ of defendant as a brakeman on one of its trains, and was injured in the act of coupling

1 THE CODE PROVISIONS ON THIS SUBJECT IN THE VARIOUS STATES ARE AS FOLLOWS:

Alaska. Carter's Ann. Codes, 1900, § 57.

"The complaint shall contain: 1. The title of the cause, specifying the name of the court and the names of the parties to the action, plaintiff and defendant. 2. A plain and concise statement of the facts constituting the cause of action, without unnecessary repetition. 3. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded the amount thereof shall be stated.'

Arizona. Rev. St., 1901, § 1289.

"The complaint shall set forth clearly the names of the parties, a concise statement of the cause of action, without any distinction between suits at law and in equity, and shall also state the nature of the relief which he demands.''

Arkansas. Kirby's Digest, 1904, § 6091.

'The complaint must contain: 1. The style of the court in which the action is brought. 2. The style of the action, consisting of the names of all the parties thereto, distinguishing them as plaintiffs and defendants, followed by the words 'complaint at law,' if the proceedings are at law, and by the words 'complaint in equity,' if the proceedings are equitable. 3. A statement in ordinary and concise language, without repetition, of the facts constituting the plaintiff's cause of action. 4. A demand of the relief to which the plaintiff considers himself entitled.'

California. Kerr's Codes, Civ. Proc., 1909, § 426.

"The complaint must contain: 1. The title of the action, the name of the court and county in which the action is brought, and the names of the parties to the action; 2. A statement of the facts constituting the cause of action, in ordinary and concise language; 3. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof must be stated.''

Colorado. Rev. St., 1908, § 55.

"The complaint shall contain : 1. The title of the cause, specifying

247

its cars. The original petition was filed August 5, 1893.

On the 21st day of August, 1893, the defendant filed a general denial. On the 8th day of September, 1896, the plaintiff filed an amendment to the petition.

A demurrer was sustained to the amendment to the pe

the name of the court and the name of the county in which the action is brought, and the names of the parties to the action, plaintiff and defendant. 2. A statement of the facts constituting the cause of action, in ordinary and concise language, without unnecessary repetition. 3. A demand for the relief which plaintiff claims, and if the recovery of money or damages be demanded, the amount thereof shall be stated.''

"The complaint shall contain a statement of the facts constituting the cause of action, and a demand for the relief to which he supposes himself to be entitled.'

Idaho. Rev. Codes, 1908, § 4168.

Same as California provision, supra.

Indiana: Burns' St., 1908, § 343.

"The complaint shall contain: 1. The title of the cause, specifying the name of the court and county in which the action is brought, and the names of the parties to the action, plaintiff and defendant. 2. A statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended. 3. Where the complaint contains more than one cause of action, each shall be distinctly stated in a separate paragraph, and numbered. 4. A demand of the relief to which the plaintiff may suppose himself entitled. If the recovery of money be demanded, the amount thereof shall be stated."

Iowa. Code, 1897, § 3559.

Substantially identical with the provisions in Arkansas, with addition of 5. Where the petition contains more than one cause of action, each must be stated wholly in a count or division by itself, and must be sufficient in itself; but one prayer for judgment may include a sum based on all accounts seeking a money remedy. In a petition by equitable proceedings, each division shall also be separated into paragraphs numbered as such, and each paragraph shall contain, as near as may be convenient, a complete and distinct statement."'

Kansas. Gen 'l St., 1909, § 5685.

"The petition must contain: 1. The name of the court and the county in which the action is brought, and the names of the parties plaintiff and defendant, followed by the word 'petition.' 2. A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition. 3. A demand of the relief to which the party supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated; and if interest thereon be claimed, the time from which interest is to be computed shall also be stated,"

Kentucky. Carroll's Code, 1895, § 90.

"The petition must state facts which constitute a cause of action in favor of the plaintiff against the defendant, and must demand the specific relief to which the plaintiff considers himself entitled; and may contain a general prayer for any other relief to which the plaintiff may appear to be entitled.'

Minnesota. Rev. Laws, 1905, § 4127.

"The complaint shall contain: 1. The title of the action, naming the court and the county in which it is brought, and the parties, plaintiff and defendant,