Nadeau v. Fogg
| Decision Date | 06 January 1950 |
| Citation | 70 A.2d 730,145 Me. 10 |
| Parties | NADEAU v. FOGG. WATIER v. FOGG. |
| Court | Maine Supreme Court |
Gendron & Gendron, Sanford, for plaintiffs.
William B. Mahoney, Portland, for defendant.
Before MURCHIE, C. J., THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.
Two cases come before this Court on exceptions by the defendant to the overruling of the first cause set forth in two special demurrers filed by the defendant, said special demurrers being similar in each case. The actions are in tort and purport to charge the defendant with negligence. The special demurrers in each case assigned several causes of demurrer, but, according to the bill of exceptions and briefs, only one cause of special demurrer remains in each case to which the defendant's exceptions now apply.
Both actions were entered at the May Term 1949 of the Superior Court for York County and on the first day of said Term the defendant filed a special demurrer in each case alleging that the declaration was vague, indefinite and uncertain and that defendant was not reasonably informed as to what he would be obliged to meet in the trial of the action in that it did not appear from said declarations whether the plaintiffs claimed that plaintiffs' intestates were riding in the motor vehicle as guest passengers or were being transported in said motor vehicle under contracts of carriage with the defendant. The presiding justice in each case overruled the first cause of defendant's special demurrer which was set forth in the first paragraph of said special demurrer to which ruling defendant excepted. Certain other causes of demurrers to the declaration were sustained and the plaintiffs amended their declarations in both cases so that the issue now raised in both cases by the special demurrers may be said to concern the sufficiency of the form of plaintiffs' claim as stated in the declarations. The declaration in each case alleges, among other pertinent facts, that plaintiff's intestate 'was riding as a passenger in a certain motor vehicle, to wit, a 1947 Plymouth Sedan then being operated by its owner, Robert N. Fogg' (defendant in both cases), etc. The second paragraph of the declarations sets forth the facts with respect to a certain motor vehicle with which defendant's motor vehicle collided and its location, etc. In other paragraphs the plaintiffs set forth proper allegations of due care on the part of plaintiffs' intestates as well as specifications of the defendant's negligence and also the damages to plaintiffs' intestates. Under such a situation as described above the defendant asks this Court to sustain his exceptions in each case to the overruling of his special demurrer asserting that there is sufficient uncertainty in the declaration so that it may be successfully attacked by a special demurrer such as was filed in these cases. The demurrer in the instant cases attempts to point out a particular imperfection in the declarations and under the decisions of this Court when the defect in the declaration is a matter of form and not of substance it must be specially set forth. In other words, there must be special demurrers such as have been filed in these cases. See Neal v. Hanson, 60 Me. 84 at page 86. It is the opinion of this Court, however, that it does not necessarily follow that because uncertainty in a declaration may be attacked by a special demurrer, it necessarily is true that in all cases of alleged uncertainty a special demurrer may be filed when, as it seems to the Court in these cases, a motion for particulars or specifications should and could have been filed in the Superior Court before trial. This is particularly true of the declarations in the instant cases after the allowance of the amendments which in the opinion of this Court set out a cause of action. The only complaint that the defendant now has, according to his bills of exceptions and his briefs, is the failure of the plaintiffs to allege whether or not their intestates were guest passengers or were being transported under contracts of carriage with the defendant. These matters, it appears to this Court, go to the proof rather than to the cause of action. They are incidental facts which the defendant could have ascertained by a motion for particulars or specifications, although it might be pertinent to add at this point that the knowledge as to whether or not the plaintiffs' intestates were passengers for hire or gratuitous passengers...
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Beaulieu v. Beaulieu
...Avery v. Thompson, 1918, 117 Me. 120, 103 A. 4. There are no degrees of care and no degrees of negligence in this State. Nadeau v. Fogg, 1950, 145 Me. 10, 70 A.2d 730. Furthermore, at the time of the accident, Maine had enacted a comparative negligence statute, which permits a person who su......
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Cianchette v. Cianchette
...a defendant could not reasonably be required to frame their answer to a pleading because of its vagueness or ambiguity. Nadeau v. Fogg, 145 Me. 10, 70 A.2d 730 (1950); Brown v. Rouillard, 117 Me. 55, 102 A. 701 (1917). motion for a more definite statement under Rule 12(e) is not designed to......
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Reid v. Reid
...Clayton suggests that the various cases cited by the Plaintiff to support her argument are inapposite. First, Clayton attempts to distinguish Nadeau, explaining that in that case the injuries complained of occurred when the defendant was actually driving a motor vehicle, unlike the present ......
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Blanchard v. Bass
...state. The significance of the term 'ordinary care' varies with the attendant and surrounding circumstances.' Nadeau v. Fogg (Watier v. Fogg), 145 Me. 10, 14, 70 A.2d 730, 732. 'While the law of negligence on the civil side of the court in this state knows only one degree of care, namely, d......