Johnson v. Herring

Decision Date30 January 1931
Docket Number6717.
Citation295 P. 1100,89 Mont. 156
PartiesJOHNSON v. HERRING et al.
CourtMontana Supreme Court

Appeal from District Court, Cascade County; W.H. Meigs, Judge.

Action by Amelia Johnson, as administratrix of the estate of Frank Johnson, deceased, against Ed Herring and another. From a judgment dismissing the action, plaintiff appeals.

Reversed and remanded.

C. F Holt, of Great Falls, and Lester H. Loble and Hugh R. Adair both of Helena, for appellant.

Clift & Glover, of Great Falls, for respondents.

MATTHEWS J.

Appeal from a judgment of dismissal in an action for damages for the death of a minor child, alleged to have been run into and over by a truck driven by defendant Herring and owned by defendant company.

On July 27, 1929, Amelia Johnson, as administratrix of the estate of Frank Johnson, deceased, filed her verified complaint setting forth, in the usual manner, her appointment and right to commence the action, the corporate existence of the Great Falls Ice & Fuel Company, and its use, in its business, of a certain truck driven and operated by defendant Herring as its employee. It is then alleged that certain parallel streets in the city of Great Falls are public thoroughfares, and that an alley, also a public thoroughfare, extends from the one street to the other, which alley was at all times mentioned "used and frequented by children for the purpose of playing and walking thereon, which fact, during all of the times mentioned herein, the defendants and particularly the defendant Ed. Herring then and there well knew."

Paragraph XIV of the complaint alleges that on the 11th day of July 1928, "in clear daylight *** Frank Johnson was lawfully upon said *** alley *** in plain view of defendants' said automobile truck and in the plain and unobstructed view of the operator of said automobile truck and where the said Frank Johnson could be plainly seen by the operator *** at said time and place, and while the said Frank Johnson was so using said alley and thoroughfare, the said defendants ran, drove and operated their said automobile truck in an easterly direction along and upon said alley in such negligent, careless and unlawful manner that the said automobile truck ran into and collided with the said Frank Johnson, who was thereby knocked down and dragged along said public alley" and so seriously injured that, having survived for approximately sixty minutes, he died from the grievous bodily injuries inflicted upon him.

Paragraph XVI of the complaint alleges:

"That it became and was the duty of the defendants in operating and using their said automobile truck in, along and upon said public alley aforesaid:
"(a) To keep and maintain a careful lookout for children walking, playing, occupying and using said alley and particularly for said Frank Johnson;
"(b) To observe the presence of children in or upon said public alley, and particularly to observe the presence of said Frank Johnson; ***
"(c) To halt, slow down or reduce the speed of said *** truck so that the same would not run into *** the said Frank Johnson;
"(d) To operate said *** truck in a careful manner and with due regard for the safety *** of persons using or upon said alley and particularly of the said Frank Johnson;
"(e) To give warning of the approach of said *** truck, by *** bell, *** horn *** or other signal *** in such manner as to warn persons *** upon said alley and particularly to warn the said Frank Johnson, of the approach of said *** truck;
"(f) To so operate and drive said *** truck *** that same was under complete control. ***
"That each and all of said duties above set forth, the said defendants *** negligently and carelessly failed and omitted to do and perform at the time and place aforesaid and thereby proximately caused and occasioned the said injuries to and the death of the said Frank Johnson."

It is thereafter alleged that Frank Johnson was a strong able-bodied boy of under 7 years of age, with a long and active life before him, that he was damaged in the sum of $25,000, for which a cause of action existed during the time he survived and that this cause of action survives to the administratrix of his estate.

Defendants moved the court to strike from paragraph XVI above subdivisions (a), (b), (c), and (f) as "irrelevant," which motion was granted, whereupon defendants answered, admitting all of the allegations of the complaint, except that they denied that the injuries or death of Frank Johnson "were due or caused by any negligence of these defendants or either of them." This answer was filed August 24, 1929.

Thereafter plaintiff moved the court for leave to amend her complaint by striking therefrom subdivision (e) of paragraph XVI. The motion was granted, and the complaint amended; whereupon defendants attacked the complaint by a general and special demurrer, on the grounds: (1) That it does not state facts sufficient to constitute a cause of action; (2) that the complaint is uncertain, in that it cannot be ascertained from the allegations that defendants operated the truck "in such a negligent, careless and unlawful manner" that it ran into Frank Johnson, "of what acts or neglect of what duty" it is claimed that the defendants were guilty, or in what respect it is claimed the truck was unlawfully operated; and (3) that, while it is alleged that defendants failed to operate the truck in a careful manner and with due regard for the safety of persons using the alley, it cannot be ascertained therefrom, with any degree of certainty, wherein defendants are alleged to have failed to so operate the truck. This demurrer was overruled, and on October 5, 1929, defendants moved the court to require plaintiff to make her complaint more definite and certain in the particulars pointed out in the second and third grounds of demurrer, which motion was granted on October 28, 1929, and plaintiff given twenty days in which to amend.

Plaintiff filed notice of election to stand on her complaint. Defendants then moved the court to reinstate, and for leave to reargue, their demurrer to the complaint, which motion was granted, and, on reargument, the court vacated the order overruling the demurrer theretofore made, overruled the demurrer as to the first ground, but sustained it as to the second and third grounds. This entry was made January 8, 1930, and again plaintiff elected to stand upon her complaint. The judgment of dismissal followed; hence this appeal.

Plaintiff specifies error as committed in making each of the orders mentioned herein; these specifications raise only the questions hereinafter discussed. 1. It is first insisted that the court erred in

striking the alleged acts of negligence from the complaint as irrelevant.

The test as to whether facts pleaded are relevant is as to whether or not evidence of those facts would be admissible on the trial of the case. Hall v. United States Casualty Co., 125 Misc. 517, 211 N.Y.S. 741; Crump v. Lanham, 67 Okl. 33, 168 P. 43; Metcalf Co. v. Gilbert, 19 Wyo. 331, 116 P. 1017; Germofert Mfg. Co. v. Castles, 97 S.C. 389, 81 S.E. 665.

Each of the allegations stricken contains a declaration of a legal duty on the part of the defendants to protect the boy injured from that injury, and was a proper subject for the introduction of evidence on the trial, and therefore successfully meets the test suggested; but it will be noted that the test is to be applied to "facts pleaded."

This court has declared the rule to be that, "in a personal injury action charging negligence, the complaint must allege that the defendant owed a legal duty to plaintiff; that he failed to perform it; that damages resulted; and that his breach of duty was a proximate cause of the injury" ( Bennetts v. Silver Bow Amusement Co., 65 Mont. 340, 211 P. 336; Dickason v. Dickason, 84 Mont. 52, 274 P. 145, 147); but the court did not intend to indicate, by such declaration that a following of the wording thereof would constitute a sufficient pleading. The correct rule as to pleading in such a case is stated in Ellinghouse v. Ajax Livestock Co., 51 Mont. 275, 152 P. 481, 484, L. R. A. 1916D, 836, as follows: "When a plaintiff seeks recovery for actionable negligence, his complaint must allege facts showing these three elements: (1) That the defendant was under a legal duty to protect him from the injury of which he complains; (2) that the defendant failed to perform this duty; and (3) that the injury was proximately caused by defendant's delinquency."

It is the duty of the court, not the pleader, to determine the law, and therefore, if the complaint alleges facts from which the court can declare the duty, it is sufficient in this regard; otherwise not. In Chicago, etc., Ry. Co. v. Hamilton, 42 Ind.App. 512, 85 N.E. 1044, 1047, the proposition is tersely put as follows: "A bare allegation of a legal duty amounts to nothing." As stated by Mr. Thompson in his Commentaries on the Law of Negligence (volume 6, p. 500, § 7458): "The allegation of duty is superfluous where the facts stated show a legal liability, and it is useless where they do not."

Here the allegations stricken by the court and that later withdrawn by the plaintiff, were merely statements of the conclusions of the pleader, containing no fact elements. Similar and identical allegations have been condemned whenever they have been properly brought to the attention of the courts. We note but a few of the decisions so holding. Colen v. Gladding, McBean & Co., 166 Cal. 354, 136 P. 289; Dufur v. Lewis River Boom & L. Co., 89 Wash 279, 154 P. 463; Herndon v. Salt Lake City, 34 Utah, 65, 95 P. 646, 131 Am. St. Rep. 827; Marcovitz v. Hergenrether, 302 Ill. 162, 134 N.E. 85; Holstine v. Director General of Railroads, 77 Ind.App. 582, 134...

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