Massachusetts Bonding & Insurance Co. v. Cudahy Packing Co.

• Decision Date: 14 December 1922
• Docket Number: 3846
• Citation: 61 Utah 116,211 P. 706
• Parties: MASSACHUSETTS BONDING & INS. CO. v. CUDAHY PACKING CO
• Court: Utah Supreme Court

211 P. 706

61 Utah 116

MASSACHUSETTS BONDING & INS. CO. v. CUDAHY PACKING CO

No. 3846

Supreme Court of Utah

December 14, 1922

Appeal from District Court, Third District, Salt Lake County; M. L Ritchie, Judge.

Action by the Massachusetts Bonding & Insurance Company against the Cudahy Packing Company. From a judgment for plaintiff defendant appeals.

AFFIRMED.

C. W Collins, of Salt Lake City, for appellant.

Clawson & Elsmore, of Salt Lake City, for respondent.

THURMAN, J. CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

THURMAN, J.

Plaintiff, a Massachusetts corporation doing business under the laws of Utah, brought this action to recover damages for injuries to certain property situated in Salt Lake City, Utah.

It is alleged in the complaint that on September 3, 1920, the Evona Investment Company, a corporation, was the owner of the premises at No. 22 West First South street in said city; that the premises are on the north side of said street, and that an alleyway runs along the east side of said premises; that the premises on such date were used as a store and had a large plate glass window fronting on said alleyway at its junction with said street. It is then alleged in the complaint that on said date defendant carelessly and negligently operated a certain truck while entering said alley and ran into and broke said plate glass window to the damage of said Evona Investment Company in the sum of $ 124.60. The complaint alleges an assignment of said cause of action to the plaintiff.

The defendant interposed a general demurrer to the complaint and also demurred for uncertainty and unintelligibility, in that the complaint alleged only conclusions of law and stated no fact or facts constituting negligence. The demurrer, except as to unimportant particulars, was overruled.

Defendant answered the complaint and denied every allegation tending to charge liability. It affirmatively alleged, in substance, that at the time of the accident alleged in the complaint the approach from First South street to the alley in question was in a bad condition for travel; that the curb gutter between said street and the north sidewalk thereof which a vehicle would have to cross in order to enter said alley from the street had large holes in it which Salt Lake City had negligently permitted to remain, and that it was impossible for a truck to enter said alley without striking and driving the wheels of said truck into said holes; that said holes were full of muddy water so that the depth and extent thereof could not be seen by a truck driver entering said alley; that it was impossible for a truck driver unfamiliar with said holes to guide and control his truck when the wheels thereof struck said holes, and the impact of striking them frequently jerked the steering wheel completely out of the driver's hands. It is further alleged, in effect, that the sidewalk between the gutter and alley was rough and uneven and had holes several inches deep in the surface thereof, thereby greatly increasing the difficulty of regaining control of a truck after it had passed through the holes in said gutter; that all of said conditions had been by said city negligently permitted to be and remain for a long period of time prior to the accident complained of; that no notice or danger sign had been placed where truck drivers could see the same either by said city or the said Evona Investment Company. Finally, it is alleged that on the date of the accident the defendant's truck driven by an experienced and competent driver, driving carefully, and at a reasonable rate of speed, to wit, from six to eight miles an hour, and with all due caution on his part, started to enter said alley on business; that when a front wheel struck in one of said holes in said gutter the impact or shock wrenched the steering wheel from the driver's control without fault on his part, and before he could regain said control the truck passed over said sidewalk and struck and broke said windowpane, through no fault of the driver, but wholly through the fault of said city and plaintiff's assignor, the Evona Investment Company.

The foregoing is the substance of the pleadings originally filed in the case and upon which the trial proceeded.

At the conclusion of the evidence plaintiff was permitted to amend its complaint by alleging excessive speed as a ground of negligence and also by pleading that it was subrogated to the rights of the Evona Investment Company. The defendant objected to the last amendment on the ground that it was substituting an entirely different cause of action from that alleged in the original complaint.

Defendant was also permitted to amend its answer by alleging that the speed of the truck was from four to five miles an hour upon entering the alley, instead of from six to eight as alleged in the original answer.

The case was tried to the court without a jury. The court found the issues in favor of plaintiff, and judgment was entered for the amount prayed for in the complaint.

Defendant appeals and assigns as error the overruling of its demurrer, the admission of evidence over defendant's objection, the denial of defendant's motion for a nonsuit, and permitting plaintiff to amend its complaint by alleging a right by subrogation. Defendant also assigns as error insufficiency of the evidence to sustain the findings.

It may as well be determined here as at any other stage of the opinion that, unless some of the evidence necessary to sustain the findings was erroneously admitted and was prejudicial to the substantial rights of defendant, the findings of the court are amply sustained by the evidence.

The evidence tends to show that plaintiff as its name indicates, was engaged in a bonding and insurance business; that it insured the Evona Investment Company against damage to the plate glass window in question; that the condition of the gutter, sidewalk and premises was substantially as alleged in defendant's answer; that the defendant on the date of the accident was engaged in delivering meat at some place of business fronting on Main street, between South Temple and First South streets; that the delivery was to be made at the rear end of said place of business through the alley-way in question; that a new driver was driving the truck, but he was accompanied by the old driver, who was sent along to point out the way; that just before they reached the gutter the old driver warned the new driver of the condition of the gutter and the entrance to the alley; that the truck was being driven from eight to ten miles an hour when it started to enter the alley; that after crossing the gutter it turned toward the northwest and against the window, breaking it and causing the damage complained of.

The evidence further tends to show that the damage actually sustained was equal to the amount demanded in the complaint, and that plaintiff, as insurer of the property, indemnified the insured or repaired the loss to the full extent thereof.

There is some conflict in the evidence as to the speed at which the truck was being driven, but there is substantial evidence to sustain the finding that it was running from eight to ten miles an hour.

As conclusion of law the court found that entering the alley at a speed of eight miles an hour was negligence, and that such negligence was the proximate cause of the injury.

The defendant not only demurred to the complaint, as hereinbefore stated, but at the trial objected to any evidence in support thereof. The rulings of the court thereon constitute appellant's first assignment of error. The contention is that no facts constituting negligence are pleaded, and that the allegations of the complaint respecting negligence are mere conclusions of law.

If defendant had stood upon its demurrer and judgment had been entered against it, an appeal therefrom must have resulted in a reversal of the judgment.

One of the best considered cases involving that question decided by this court is that of Chesney v. Chesney 33 Utah 503, 94 P. 989, 14 Ann. Cas. 835. In that case the court reaffirmed the elementary doctrine that facts and not mere conclusions of law must be pleaded in order to state a...