Jones v. Howe-Thompson, Inc.

• Decision Date: 06 June 1933
• Citation: 22 P.2d 502,143 Or. 337
• Parties: JONES v. HOWE-THOMPSON, Inc.
• Court: Oregon Supreme Court

22 P.2d 502

143 Or. 337

JONES v. HOWE-THOMPSON, Inc.

Supreme Court of Oregon

June 6, 1933

Department 2.

Appeal from Circuit Court, Baker County; C. H. McColloch, Judge.

Action by Mary Jones against Howe-Thompson, Inc. Judgment for plaintiff, and defendant appeals.

Affirmed.

Based upon charges that the defendant negligently performed a duty owing to the plaintiff, and thereby injured her, the plaintiff brought this action seeking damages. From a judgment in favor of the plaintiff, the defendant appealed.

George S. Shepherd, of Portland (Strayer & Strayer, of Baker, on the brief), for appellant.

James T. Donald, of Baker (Hallock, Donald & Banta, of Baker, on the brief), for respondent.

ROSSMAN, Justice.

The appellant has not brought before us any part of the evidence and confines its effort to show reversible error to an attack upon the complaint. The complaint alleges that the defendant is a corporation; that B. G. Thompson is its manager; that defendant is engaged in the business of selling appliances to beauty shop proprietors; that May 14, 1931, Lucille Colvard proprietor of a beauty shop, contracted to purchase from the defendant a permanent wave machine; that the machine was thereupon installed in her shop; that Thompson represented himself as being an expert in operating and demonstrating the use of such machines; that plaintiff, as a patron of Lucille Colvard's shop, called at her shop May 14, 1931; that Thompson thereupon offered to demonstrate the machine upon plaintiff's hair for the price of $6; that plaintiff accepted his offer; that Thompson attached the machine to plaintiff's hair and turned on the electricity; that the plaintiff felt that her scalp was being burned and complained to Thompson more than once; that eight minutes later when the appliance was removed severe burns were observed upon the neck and head of plaintiff; that in the operation of the machine defendant was negligent. Among other specifications of negligence the complaint alleges the following: "That said defendant, acting as aforesaid, adjusted said machine and appliance to the scalp of plaintiff so negligently and carelessly that either live steam was forced upon the neck and head of plaintiff or that an electrically heated portion of said machine and appliance came into contact with the neck and head of plaintiff so that the burns hereinbefore alleged resulted therefrom. ***"

The defendant filed a motion praying for orders requiring the plaintiff to make portions of her complaint more definite and certain, and to strike out other parts. The motion was overruled. The order overruling it constitutes the predicate for one of the defendant's assignments of error. We have carefully considered the complaint and also the motion. We believe that the motion was properly overruled, but shall not pause to state our reasons except so far as they are indicated by the following:

Appellant argues that, because the complaint alleges in the alternative form plaintiff's charge concerning the particular instrumentality which caused her injury, the court erred when it did not strike from the complaint the paragraph containing the alternative allegations. No motion was made to require the plaintiff to make this paragraph more definite and certain, and no demurrer was filed against the complaint. It will be recalled from the review above that the complaint alleges that "either live steam was forced upon the neck and head of plaintiff or that an electrically heated portion of said machine and appliance came into contact with the neck and head of plaintiff." It is difficult to understand how it was important whether a jet of hot steam struck the plaintiff's neck or whether a heated portion of the metal came into contact with her neck. The material question was whether a negligent act of the defendant caused the steam or metal to come into contact with her. But let us assume that this detail, which we believe was immaterial, was important. We shall, therefore, proceed to determine whether the alternative charge rendered the pleading defective.

Three of our earlier decisions pass upon the propriety of alternative allegations. In Ladd & Bush v Ramsby, 10 Or. 207, which was a suit for an injunction the plaintiff alleged that one Simmons, defendant in a previous action, was either dead or was alive in Umatilla county at the time the plaintiff in that action attempted to serve him with summons by publication. The sufficiency of the complaint was tested by a demurrer. The decision, after pointing out that injunctions are granted only when the grounds for them clearly appear, held that the alternative allegation was an insufficient premise for such extraordinary relief. Turney v. Southern Pacific Co., 44 Or. 280 75 P. 144, 149, 76 P. 1080, was an action to recover damages sustained by a pedestrian when she was struck by a piece of wood hurled from a passing train. The complaint charged that the employees of the railroad company negligently caused the wood "to fall or be thrown" from the train.

In holding the allegation sufficient, the decision declared "In an action of this kind, however, a general allegation that the act which caused the injury was negligently or carelessly done or omitted is sufficient, without setting out the details of the negligence. Cederson v. Oregon Nav. Co., 38 Or. 343, 62 P. 637, 63 P. 763; Watson, Personal Injuries, § 698. This is particularly so when the manner of the commission of the negligent act is peculiarly within the knowledge of the defendant. In the latter case the plaintiff will not be required to set out the details. Louisville & N. R. Co. v. Crunk, 119 Ind. 542, 21 N.E. 31, 12 Am. St. Rep. 443. Whether the stick of wood which caused the injury to the...