Dickason v. Dickason
| Decision Date | 30 January 1929 |
| Docket Number | 6372. |
| Citation | 274 P. 145,84 Mont. 52 |
| Parties | DICKASON v. DICKASON. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.
Action by Ruth A. Dickason against Annita Dickason. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with direction.
Binnard & Rodger and John A. Shelton, all of Butte, for appellant.
H. J Freebourn and Harlow Pease, all of Butte, for respondent.
Appeal from a judgment in favor of plaintiff in an action for damages for injuries sustained in an automobile accident.
On November 25, 1925, the plaintiff, Ruth A. Dickason, a girl of 17, living with, and supported by, her mother, Annita Dickason, the defendant, while driving her mother's automobile for her own pleasure with her mother's consent, sustained certain injuries when the car overturned on the highway. On October 25, 1926, having attained her majority, plaintiff commenced action to recover damages for the injuries sustained. She alleges in her complaint that the car overturned, when she attempted to turn a corner, by reason of a defect in the steering gear which "at times" caused the front wheels of the car to continue to turn after the driver had ceased to turn the steering wheel which condition had existed for more than a week prior to the accident. She further alleges that she had no knowledge of the defect and could not have discovered it by the exercise of reasonable care on examination of the car before starting on the trip which ended in the accident, but she alleges that the defendant "knew or in the exercise of ordinary care should have known" of the defect, and carelessly and negligently failed to have the car repaired and negligently failed to warn plaintiff of the condition of the steering gear before permitting her to drive the car on the day of the accident. She claimed damages in excess of $10,000.
The defendant interposed a general and special demurrer to the complaint. The general demurrer, of course, is based on the ground that the complaint does not state facts sufficient to constitute a cause of action. The special demurrer specifically points out, among other things, that the complaint is uncertain in that it cannot be ascertained therefrom in what manner the mechanism described was defective, or how it could have been repaired to remedy the defect, or how the defendant, could or should have known of the defect. The demurrers were submitted to the court without argument and were overruled, and thereafter the defendant answered denying the allegations of the complaint and, as special defenses, alleging contributory negligence, knowledge on the part of plaintiff of the defect alleged, if it existed, and assumption of risk. The affirmative matter in the answer was denied by replication.
Defendant procured an order for a bill of particulars and, in response to the several demands for specific information as to the nature of the defect claimed and of the accident, plaintiff, in effect, replied that she had no knowledge or information enabling her to make more positive statements than those contained in her complaint, except that she stated that she "believes that the steering gear or steering apparatus was worn in its entirety."
On April 7, 1928, defendant gave notice of motion to be made on April 9 for a supplemental bill of particulars. On the morning of April 9 the case was called for trial and each side announced that it was ready for trial, whereupon the court directed the calling of a jury. Counsel for defendant then presented their motion, which was overruled as coming too late.
During the trial defendant challenged the sufficiency of the complaint by objection to the introduction of testimony, by motion for nonsuit, and by motion for directed verdict, but was, in each instance, overruled. The trial resulted in a verdict for plaintiff for $750, and judgment was entered thereon. No motion for a new trial was made. Defendant has appealed from the judgment.
1. The first question presented is as to the sufficiency of the complaint.
As the defendant answered over, she waived her objection that the complaint was uncertain in any particular. McQuay v. McQuay, 81 Mont. 311, 263 P. 683; Flint Creek Lodge v. Brown, 81 Mont. 573, 264 P. 394. But this rule does not apply to the general demurrer, or to the objection to the introduction of testimony, on the ground that the complaint does not state a cause of action; these challenges to the complaint saved the question thus raised for presentation on appeal. Boyle v. Chicago, Mil. & St. Paul Ry. Co., 60 Mont. 453, 199 P. 283; Wells-Dickey Co. v. Embody, 82 Mont. 150, 266 P. 869.
Counsel for plaintiff state that, while the question was "raised" in the manner stated, it was not argued "or plainly presented" to the court, and should therefore receive little consideration. The only evidence in the record supporting this statement is that the minutes of the court show that the demurrer "was submitted without argument." While a demurrant may be lax in not urging the grounds of his demurrer, the submission nevertheless imposes a duty upon the court to determine the question thus presented, and, if incorrectly determined, the demurrant may take advantage of the error committed. In California it has been held that, even where the defendant stipulates that the demurrer may be overruled and he given time to answer, he is not estopped from asserting on appeal that the demurrer should have been sustained. Hitchcock v. Caruthers, 82 Cal. 523, 23 P. 48.
It is further urged that the case was tried "upon the basis that actual knowledge was properly in issue" and that, as trial has been had on the merits, the judgment should not be reversed for technical objections to the complaint, citing section 9191, Revised Codes of 1921, which provides that "the court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect," and the decisions thereunder in Ellinghouse v. Ajax Livestock Co., 51 Mont. 275, 152 P. 481, L. R. A. 1916D, 836; Grant v. Nihill, 64 Mont. 420, 210 P. 914; Davis v. Freisheimer, 68 Mont. 322, 219 P. 236; and McManus v. Butte Electric Ry. Co., 68 Mont. 379, 219 P. 241.
The rule announced in the Ellinghouse Case pertains only when the question of the sufficiency of the complaint is raised for the first time in this court, and has no application here. The remaining decisions cited, and many others appearing in the reports of the decisions of this court, go no further than this: In determining the issues of law presented by a general demurrer to the complaint, or by objection to the introduction of testimony, or when the sufficiency of the complaint is challenged by motion for nonsuit or for directed verdict, on the ground that it does not state...
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