Ingle v. Case
| Decision Date | 25 September 1989 |
| Docket Number | No. 15968,15968 |
| Citation | 777 S.W.2d 301 |
| Parties | Thomas W. INGLE and Janette Ingle, Plaintiffs-Appellants, v. Bill CASE and Ann Harmon, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Karenanne Miller, Hoke & Miller, Springfield, for plaintiffs-appellants.
M. Douglas Harpool, Craig A. Smith, Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, for defendants-respondents.
By their first amended petition in two counts, plaintiffs Thomas W. Ingle and Janette Ingle seek to recover for the wrongful death of their fourth grade son who was killed by a truck when he was crossing U.S. Highway 65 to board a school bus. The defendant in the first count is Bill Case, the school bus barn operator. The defendant in the second count is Ann Harmon, driver of the school bus the decedent was going to board. The trial court sustained a motion to dismiss as to each defendant. The plaintiffs appeal.
The allegations of Count I relevant to the negligence of the defendant school bus barn operator are as follows:
"8. That Defendant Bill Case owed to each student a duty to exercise ordinary care in establishing bus stops for the pick up and delivery of children attending schools in School District Number One Dallas County, and in establishing procedures whereby children required to cross highways could do so under the supervision, guidance and protection of the bus operator.
9. That Defendant Bill Case, acting in his individual capacity in exercise of his ministerial duties as bus barn operator, breached his duty to Plaintiffs and deceased in that he negligently failed to exercise ordinary care and negligently failed to select a safe bus stop location for the deceased to board his designated bus, and failed to establish any procedures whereby he could cross U.S. Highway 65 under the supervision and protection of the bus operator, or in any other safe manner.
10. That Defendant Bill Case, in total disregard and in defiance of the rules, regulations and statutes pertaining to the transportation of children to and from the public school system, failed to exercise those safety precautions which would have prevented the death and losses complained of herein."
The allegations of Count II relevant to the negligence of the defendant school bus driver are as follows:
"2. That Defendant Ann Harmon owed to each student a duty to exercise ordinary care in the pick up and delivery of children attending School District Number One of Dallas County, and to exercise ordinary care in establishing methods and procedures which would assist children required to cross highways so that they could do so under the supervision, guidance, and protection of Defendant as bus operator, or in a safe manner.
3. That Defendant Ann Harmon acting in her individual capacity in exercise of her ministerial duties as bus driver breached her duty to Plaintiffs and deceased in that she negligently failed to exercise ordinary care in the establishment of procedures and in the assistance of the deceased to board his designated bus at a safe location and in a safe manner under her supervision and protection, or in a safe manner.
4. That Defendant Ann Harmon, in total disregard and in defiance of rules, regulations and statutes pertaining to the transportation of children to and from the public school system, failed to exercise those safety precautions which would have prevented the death and losses complained of herein."
The defendants filed a motion to dismiss for the following reasons. The petition failed to state a cause of action against either defendant. The plaintiffs are barred from recovering from either defendant by the doctrine of "official immunity." The allegations of the petition establish the death of the child was the result of an intervening cause. The defendants had no authority to make the decisions or take the actions alleged in the petition.
The trial court sustained the motion to dismiss. It did not specify the grounds for that dismissal. "However, where a trial court sustains generally a motion to dismiss and there is any meritorious ground alleged in the motion to justify its sustention, the ruling must be affirmed." Spearman v. University City Public School Dist., 617 S.W.2d 68, 72 (Mo. banc 1981). Also see Kaplan v. Centerre Trust Company of St. Louis, 740 S.W.2d 711 (Mo.App.1987).
As stated, defendants' motion to dismiss first alleges the first amended petition fails to state a cause of action against either defendant. They argue that the petition states conclusions of negligence and does not support those conclusions by allegations of fact as required by Rule 55.05. The sufficiency of the first amended petition to withstand that attack is to be measured by the following standards.
Commercial Bank of St. Louis Co. v. James, 658 S.W.2d 17, 21-22 (Mo. banc 1983). (Emphasis added.)
Nappier v. Kincade, 666 S.W.2d 858, 860 (Mo.App.1984).
Musser v. Musser, 281 Mo. 649, 664, 221 S.W. 46, 50 (1920). (Citations omitted.)
That definition of "ultimate facts" is not easy of application. A more practical analysis has been stated in the following terms.
"The line between 'ultimate fact' and 'conclusion of fact or of law' is not easily drawn, and some allegations may in one context be deemed to be one of ultimate fact while in another, where from a pragmatic viewpoint some of the words do not give sufficient information to an opponent of the character of the evidence to be introduced or of the issues to be tried, allegations may be deemed to be conclusions of a fact or of law...."
Einhaus v. O. Ames Co., 547 S.W.2d 821, 825 (Mo.App.1976).
The cases establish apparent and actual exceptions to the requirement that a petition, asserting a cause of action based on negligence, must allege ultimate facts to support a general charge of negligence. An apparent exception has been stated:
"In Missouri a general allegation of negligence predicated on an act of the defendant causing plaintiff's injury is sufficient as against an objection that no cause of action is stated, and it is not necessary to state specific facts showing the negligence in order to state a cause of action...."
Id. at 825. Nonetheless, that statement is qualified by the following requirement. "A plaintiff must, however, allege facts sufficient to inform the defendant of the breach of duty with which he is charged, and, if the facts are within the plaintiff's knowledge, he should be required to state them with reasonable particularity...." Id.
Of course, a general charge of negligence is sufficient where the petition pleads a cause of action under the res ipsa loquitur doctrine. Sirna v. APC Bldg. Corp., 730 S.W.2d 561 (Mo.App.1987); Warriner v. Holmeswood Baptist Church of Kansas City, Mo., 548 S.W.2d 259 (Mo.App.1977). The same is true where a petition alleges the facts constituting negligence are peculiarly within the knowledge of the defendant. Plato Reorg. Sch. D. No. R-5 v. Intercounty Elec. Coop. Assoc., 425 S.W.2d 914 (Mo.1968). Further, "[t]here are some fact situations in which the act which results in injury or damage is so simple that the mere statement of the ultimate facts is nearly as specific an averment as can be expressed in words...." Chiodini v. Terminal Railroad Ass'n of St. Louis, 287 S.W.2d 357, 361 (Mo.App.1956). The latter doctrine...
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