Parks v. Mathews

• Citation: 58 Idaho 8,69 P.2d 781
• Decision Date: 01 June 1937
• Docket Number: 6422
• Parties: JOHN PARKS, Appellant, v. HELEN MATHEWS, ROY E. MATHEWS and FARMERS AUTOMOBILE INTER-INSURANCE EXCHANGE, a Corporation, by FARMERS UNDERWRITERS ASSOCIATION, Its Attorney-in-fact, Respondents
• Court: United States State Supreme Court of Idaho

69 P.2d 781

58 Idaho 8

JOHN PARKS, Appellant, v. HELEN MATHEWS, ROY E. MATHEWS and FARMERS AUTOMOBILE INTER-INSURANCE EXCHANGE, a Corporation, by FARMERS UNDERWRITERS ASSOCIATION, Its Attorney-in-fact, Respondents

No. 6422

Supreme Court of Idaho

June 1, 1937

PLEADING - SHAM AND IRRELEVANT MATTER - COMMINGLING OF TWO CAUSES OF ACTION-MOTION TO STRIKE.

1. In stating cause of action against corporation, allegations of corporate existence, and, if corporation is organized under laws of another state, that it is foreign corporation, are proper.

2. In stating cause of action against insurer for damages sustained in collision with insured automobile, allegation that insurer issued and delivered policy to automobile owner is proper.

3. That allegation relating to insurer's issuance of automobile liability policy to automobile owner, and to liability of insured to plaintiff for damages sustained in collision with insured automobile, could have been more apt, did not make allegations sham, irrelevant, or redundant so as to permit their being struck under statute. (I. C. A., sec. 5-802.)

4. In stating cause of action against insurer for damages sustained in collision with insured automobile, allegations that automobile was registered in certain person's name, that driver was operating automobile with owner's consent, and that damages to property and injuries to person resulted from collision, were proper and relevant.

5. The striking of both irrelevant and relevant allegations from complaint is error, where irrelevant facts are intermingled with and are not separated from the relevant facts.

6. Matter which is foreign to any theory of plaintiff's case is irrelevant and can be stricken, but matter which is relevant on any theory cannot be stricken, even though such latter matter falls short of stating cause of action, since sufficiency of complaints must be tested by demurrer as provided by statute. (I. C. A., sec. 5-607.)

7. In stating cause of action against automobile owner for damage sustained in collision with automobile on theory that driver was owner's agent, allegations as to damage to property and injury to person, as to ownership of automobile, and as to operation of automobile by driver with owner's consent, were relevant in alleging agency.

8. Where two causes of action are improperly united and commingled in one count of complaint, proper remedy to reach that defect is by motion to require plaintiff to state causes of action in different counts.

9. A complaint, which was ambiguous as to whether recovery was claimed on ground of deliberate and unlawful injury or on ground of negligent injury because of commingling of two causes of action in one count, was subject to motion to require causes of action to be separately stated in different counts, and not to demurrer.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Koelsch, Judge.

Action for damages. Judgment of dismissal. Reversed and remanded with instructions.

Reversed and remanded with instructions. Costs awarded to appellant. Petition for rehearing denied.

S. T Schreiber, for Appellant.

A motion to strike out must specify and point out particularly the matter claimed to be sham, irrelevant, and redundant. ( Valley Lumber Co. v. McGilvery, 16 Idaho 338, 340 101 P. 94, 95; People v. Empire Gold & Silver Mining Co et al., 33 Cal. 171; Mullen v. Wine, 9 Colo. 167, 11 P. 54.)

It is a general rule that in accidents for personal injury two or more acts of negligence contributing to the injury complained of may properly be changed in one count in the complaint or declaration. (21 R. C. L., sec. 36, p. 471; Garber v. Whittaker, 174 A. 34; Merriman v. McCormick Harvesting Mach. Co., 86 Wis. 142, 56 N.W. 743.)

One injured in a collision with a motor car may join in the same action the owner of the vehicle and an insurer, there being a primary liability against the insurer in his favor. (A. Rose & Son, Inc., v. Zurich Gen. Acc. & Liability Co., 296 Pa. 206, 145 A. 813; Finkelberg v. Continental Cas. Co., 126 Wash. 543, 219 P. 12; Gugliemetti v. Graham et al., 50 Cal.App. 268, 195 P. 64.)

Elam & Burke, for Respondents.

An insurer cannot be joined with assured in an action by injured party for damages for alleged negligence of assured in absence of statute or policy provision expressly authorizing such joinder. (Van Derhoof v. Chambon et al., 121 Cal.App. 118, 8 P.2d 925; Conley v. United States Fidelity & Guaranty Co. et al., 98 Mont. 31, 37 P.2d 565; Smith Stage Co. v. Eckert, 21 Ariz. 28, 184 P. 1001, 7 A. L. R. 995.)

Insurer under an automobile indemnity policy is not a joint tort feasor with an assured who is alleged to have occasioned damages through negligent operation of motor vehicle. (Van Derhoof v. Chambon et al., supra; Conley v. United States Fidelity & Guaranty Co. et al., supra; Smith Stage Co. v. Eckert, supra.)

Indemnitor cannot be properly joined in an action against indemnitee based on wrongful or negligent act of the latter. (31 C. J. 457; Northam v. Casualty Company of America, 177 F. 981 (Decision by Judge Dietrich); Cummings v. Reins Copper Co., 40 Mont. 599, 107 P. 904; Conley v. United States Fidelity & Guaranty Co. et al., supra.)

HOLDEN, J. Morgan, C. J., and Ailshie, J., concur. Givens, J., BUDGE, J., Dissenting.

OPINION

HOLDEN, J.

--In February, 1936, appellant was driving a draft horse hitched to a loaded wagon on one of the highways of this state. While he was so driving, an automobile driven by Helen Mathews and owned by Roy E. Mathews, ran into the rear of the wagon, killing the horse and allegedly damaging the wagon and injuring appellant. In July following the accident, appellant commenced an action against Helen Mathews, the driver of the car, and her father, Roy E. Mathews, to recover damages alleged to have been sustained on account of the accident, and joined the Farmers Automobile Inter-Insurance Exchange (hereinafter called the Exchange) as a party defendant, upon the theory, apparently, that the Exchange, by the issuance and delivery of an accident policy to respondent Roy E. Mathews, had become liable to appellant for such damages as he had sustained by reason of the accident. Following the filing of an original complaint, appellant filed an amended complaint. To the amended complaint each of the respondents filed separate, general and special demurrers, motions to strike, and motions to separately state causes of action.

The trial court sustained the general demurrer of defendant and respondent Roy E. Mathews, as well as his motion to strike certain allegedly irrelevant, sham, redundant, immaterial, and prejudicial matter from the amended complaint. It overruled respondent Helen Mathews' general demurrer but sustained her special demurrer. The trial court also sustained the motion of the Exchange to strike certain matter from the amended complaint upon the ground that it was irrelevant, sham, redundant, immaterial, and prejudicial, but did not rule upon the general or special demurrers filed by the Exchange.

The record presents three questions for determination, first, whether the court erred in sustaining the motion of the Exchange to strike; second, whether the court erred in sustaining the motion of respondent Roy E. Mathews to strike certain matter from the amended complaint; and, third, whether the court erred in sustaining the special demurrer of Helen Mathews.

These questions will be discussed in the order stated.

It appears that the motions to strike of the respondents are identical. The Exchange moved to strike and the trial court struck from the title to the action:

"Roy E. Mathews and Farmers Automobile Inter-Insurance Exchange (a corporation) by Farmers Underwriters Association, its attorney-in-fact."

It also struck the following matter:

"and that the Farmers Automobile Inter-Insurance Exchange is an insurance corporation, duly organized, existing under and by virtue of the laws of the State of California, with its principales place of business at Los Angeles, and empowered to transact business and issue automobile liability insurance in Idaho, having heretofore complied with the laws of the state relative to foreign corporations doing business in this state, and maintains an office at Boise, Ada County, Idaho."

Also the following matter:

"defendant's Roy E. Mathews', automobile (said Roy E. Mathews being the father of defendant Helen Mathews); and who had given his full consent and permission to drive and use the said car,"

Also the Following:

"which automobile was and is registered in the name of Roy E. Mathews, as owner,"

Also,

"bruising his body and injuring his back, knocking him senseless and permanently crippling and incapacitating him, and leaving him under said wreck by the roadside until released from his predicament by travelers on said highway."

Also,

"by the consent, approbation, and permission of her father, Roy, E. Mathews, the owner of said machine and who had full knowledge of her recklessness and carelessness as a driver and knew or should have known that she was an unsafe person to operate his automobile at any time";

Also paragraph numbered V of the amended complaint, reading as follows:

"That theretofore the said Roy E. Mathews in contemplation for safety from loss by accident, procured a policy of insurance from the defendant Farmers Automobile Inter-Insurance Exchange and paid the premium thereon with a guaranty in case of liability incurred by reason of any accidents of his own or by his agents, servants, or employees, or members of his family in the operation of said car, an accidental loss incurred through and by the said automobile upon the public highway and through and by...