Moe v. Alsop

• Decision Date: 04 April 1950
• Citation: 216 P.2d 686,189 Or. 59
• Parties: MOE v. ALSOP.
• Court: Oregon Supreme Court

216 P.2d 686

189 Or. 59

MOE v. ALSOP.

Supreme Court of Oregon.

April 4, 1950

Argued Feb. 23, 1950.

Allan G. Carson, Salem, argued the cause for appellant. With him on the brief was Wallace P. Carson, Salem.

Orval N Thompson, Albany, argued the cause for respondent. On the brief were Weatherford & Thompson, Albany.

Before LUSK, C. J and BRAND, BAILEY, HAY and LATOURETTE, JJ.

HAY, Justice.

Action for damages for injuries to person and property claimed to have resulted from a collision of two automobiles. The collision occurred on June 14, 1946, at about 5:45 o'clock, p. m. Plaintiff was driving westerly upon the Albany-Sweet Home Highway (U S. 20) and was approaching from the east the intersection of that highway with the Sweet Home-Brownsville Highway (State 228). At that place, U. S. 20 runs in a straight course, nearly due east and west, while State 228 debouches therefrom southwesterly, the intersection forming a 'Y'. Defendant, at the same time, was driving easterly on U. S. 20, and was approaching the intersection from the west. The cars collided at or close to the easterly entrance to the intersection.

Plaintiff charged defendant with negligence, as follows: (1) Failure to have his car under control, (2) failure to maintain a lookout, (3) driving from his right side to his left side of the highway and into the path of plaintiff's car, (4) driving at a high and dangerous rate of speed under the conditions of traffic, roadway, intersection, etc. Defendant countercharged plaintiff with negligence, proximately causing the collision as follows: (1) Failure to have his car under control, (2) failure to maintain a lookout, (3) driving at a speed greater than was reasonable and prudent having due regard to the traffic, surface and width of the highway and the hazard at intersections, etc., (4) turning his car to his right from a direct line toward and into intersecting Highway 228 without first seeing that such movement could be made with safety, (5) failure to give any signal of his intention to make such movement. On these charges and countercharges, issue was joined.

Trial by jury resulted in verdict and judgment for plaintiff in the sum of $5,000. Defendant appeals, assigning as error denial of motions to strike and to make more definite and certain, and the giving and refusing of certain instructions to the jury.

Defendant moved to strike from the complaint, as irrelevant and redundant, the following allegation: 'That defendant negligently drove and turned his automobile from defendant's right half of said Highway #20, which was the south half of said highway, to the north half of said highway directly into the path and immediately in front of the car driven by plaintiff'. He argues that this allegation was an attempt to charge a violation of subsection (a) of section 115-327, O.C.L.A., and that, in failing to negative an exception included within such subsection, it is fatally defective, in legal effect alleges nothing, and so is redundant. The subsection reads, in part, as follows: 'Upon all highways of sufficient width, other than one-way highways, the driver of a vehicle shall drive the same upon the right half of the highway except when the right half is out of repair and for such reason impassable or when overtaking and passing another vehicle. * * *'

The objection that the pleading is irrelevant seems to have been abandoned. The objection of redundancy was hardly sufficient to include failure to negative an exception, which would be the allegation of less, while redundancy is the allegation of more, than is necessary.

However that may be, we think that the so-called exception in this instance is not, strictly speaking, an exception but a proviso. It is sometimes said broadly that, in a pleading based upon the violation of a statute, all exceptions appearing in the enacting clause must be expressly negatived. 'Clause', in this sense, does not mean clause in a grammatical sense, but in the broader sense of 'a portion or a part of the statute separate from the actual enacting clause frequently but not necessarily constituting or contained in a separate sentence, section, subdivision, or paragraph of the enactment.' Anno., 130 A.L.R. 445. The true rule appears to be that it is the character of the exception and not its location that indicates whether or not it is to be negatived. If the offense is clearly defined in the statute without reference to the exception, the latter need not be negatived. State v. Tamler, 19 Or. 528, 530, 25 P. 71, 9 L.R.A. 853; State v. Edmunds, 55 Or. 236, 238, 104 P. 430; State v. Gilson, 113 Or. 202, 205, 232 P. 621; State v. Schriber, 185 Or. 615, 630, 205 P.2d 149; United States v. Cook, 17 Wall. 168, 84 U.S. 168, 176, 177, 21 L.Ed. 538; Ex parte Hornef, 154 Cal. 355, 97 P. 891, 892; State v. Abbey, 29 Vt. 60, 67 Am.Dec. 754. The terms 'exception' and 'proviso' are not important in this connection, as they are used interchangeably. Ex parte Hornef, supra.

The duty imposed upon drivers of vehicles in the statute under consideration is that they shall drive upon the right half of the highway. The exception is merely a matter or condition of privilege or excuse. It is, therefore, a true proviso, and need not be negatived. Phillips, Code Pleading, 2d Ed., section 295; Oregon Liquor Control Commission v. Coe, 163 Or. 646, 652, 653, 99 P.2d 29.

The complaint alleged that defendant drove his car 'at a high and dangerous rate of speed and at such a speed, under the conditions of traffic, roadway, and intersections, that defendant could not stop and control the same so as to avoid injuring the plaintiff and others'. Defendant moved to strike the italicised portion as irrelevant and redundant. His counsel's argument here is that the allegation failed to include matter appearing in the statute which, they contend, limits the driver's duty to maintaining control of his car in such manner as to avoid collision with any person, vehicle or other conveyance on or entering the highway 'in compliance with legal requirements and with the duty of drivers and other persons using the highway to exercise due care'. This omission, they say, has the effect of making defendant liable at all events, irrespective of whether or not plaintiff was lawfully upon the highway and exercising due care. We are of the opinion, however, that the challenged allegation sufficiently stated facts bringing the purported conduct of the defendant within the ban of the statute. Violation of a statutory duty may be alleged in general terms, and it is not necessary to plead the exact language of the statute. Vol. 9, Blashfield Cyc. of Automobile Law, Perm.Ed., § 5952. Moreover, the rules of pleading and evidence do not require a plaintiff in a negligence case to allege or prove his freedom from contributory negligence. 38 Am.Jur., Negligence, section 270; Gentskow v. Portland Ry. Co., 54 Or. 114, 122, 102 P. 614, 135 Am.St.Rep. 821. And the statute under consideration, subd. (a), section 115-327, O.C.L.A., expressly declares that it is not to be construed so as to change the rules of pleading and evidence relating to negligence and contributory negligence.

The complaint used the adverb 'negligently' to characterize each several act charged against defendant. This was preceded by a general allegation of negligence as to all such acts. In like manner, each several specification of injury which plaintiff is alleged to have suffered was stated to have injured him 'permanently', and these specifications were followed by a general allegation that 'each and all of said injuries were and are permanent'. Defendant moved to strike the adverbs 'negligently' and 'permanently', wherever appearing, as irrelevant and redundant. The court struck four out of five of 'negligently', but failed to strike any of 'permanently'.

The pleading, in this connection, is not free from criticism, and the rulings of the trial judge on the motion to strike were mutually inconsistent. However, the complaint was not lengthy, and we do not think that the jury could have been either misled or confused by the unnecessary repetition of which counsel complain. The alleged error was not sufficient to prejudice any substantial right of the defendant, and, therefore, was not reversible. Sections 1-704, 10-810, O.C.L.A.; Kaller v. Spady, 144 Or. 206, 214, 10 P.2d 1119, 24 P.2d 351.

The plaintiff demanded, besides general damages for permanent injuries, special damages of $532 for loss of earnings. Defendant moved to strike the demand for such special damages, on the ground that it was irrelevant and redundant, which motion was denied. It is true that recovery may not be had for both loss of earnings and diminished earning capacity covering the same period of time. 15 Am.Jur., Damages, section 89, text and note 9. The special damages claimed in this connection, however, covered only loss of time for a period of seven weeks prior to the commencement of the action. This was a proper claim, and was not included within the claim for general damages. Adskim v. Oregon-Washington R. & Nav. Co., 134 Or. 574, 584, 294 P. 605; Shaw v. Pacific Supply Co-op., 166 Or. 508, 510, 113 P.2d 627.

It was alleged that the collision crushed and permanently damaged plaintiff's chest and the organs thereof and his abdomen and the organs thereof. Defendant moved to have the complaint made more definite and certain by designating the particular organs so claimed to have been injured. This was denied, and error is assigned thereon. It must be conceded that the allegations were general, but it may very well be that, at the time when the complaint was filed, plaintiff was unable to describe his alleged internal injuries with greater particularity. Stocklen v. Barrett, 58 Or. 281, ...