Rehkamp v. Martin

• Decision Date: 27 February 1923
• Citation: 198 Ky. 34
• Parties: Rehkamp, By, Etc. v. Martin, et al.
• Court: Kentucky Court of Appeals

198 Ky. 34

Rehkamp, By, Etc. v. Martin, et al.

Court of Appeals of Kentucky.

Decided February 27, 1923.

Appeal from Kenton Circuit Court (Criminal, Common Law and Equity Division).

F. J. HANLON for appellants.

JOHN E. SHEPARD for appellees.

OPINION OF THE COURT BY CHIEF JUSTICE SAMPSON — Affirming.

Appellee, Stanley Martin, who conducts an automobile business, was towing the disabled car of appellee Francis Bowen across the bridge over the Ohio river from Cincinnati towards Covington, when the disabled car in charge of its owner, appellee Francis Bowen, by some means struck and injured appellant Rehkamp, who brought this action in the Kenton circuit court against the two appellees, Martin and Bowen, to recover damages. His petition was both indefinite and insufficient as to appellee Martin and was indefinite and uncertain as to appellee Bowen though sufficient to support an action in tort. A general demurrer was filed to the petition by both appellees, Bowen and Martin, and they each filed a motion asking the court to require the plaintiff to make his petition more definite and certain. The general demurrers were overruled but both motions that the court require the plaintiff to make his petition more definite and certain were sustained and appellant given time and an opportunity to make his petition more definite and certain. To this order appellant objected and excepted. Appellant declined to amend his petition and to make it more definite and certain. Whereupon the court dismissed his petion and he appeals.

It is appellant's insistence that the petition, which alleged negligence in general terms, stated facts sufficient to constitute a cause of action against both appellees, and in as much as it stated a cause of action the court had no right to sustain the motion of appellees to make it more definite and certain and on appellant's failure to do so, dismiss his cause.

Appellant cites much authority to sustain the well known rule that under a general allegation of negligence any negligence may be shown; and further a person injured by two negligent acts may rely upon either or both to sustain his action. L. & N. Ry. Co. v. Gaines. 152 Ky. 255; L. & N. Ry. Co. v. Mitchell, 162 Ky. 254. Both of these propositions are conceded by appellees. The substance of the averments of the petition is that appellee Martin was towing, by means of a rope attached to the rear axle of his machine, the disabled machine of appellee Francis Bowen over the bridge when the disabled machine struck and injured appellant. The precise averment is "that the defendant Francis Bowen was in his machine, which was being towed by the defendant Stanley Martin as aforesaid, and that said defendant Francis Bowen was at the wheel of his machine and in control of said machine, steering same at said time and place." Construing the pleading strongest against the pleader, as is the rule, appellant was not injured through or by reason of any negligence on the part of appellant Martin, for his machine did not strike appellant, but appellant was struck by the disabled machine which appellee Francis Bowen owned and in which he was, as it is averred, at the wheel steering and controlling. If he were steering and controlling said machine at the time and place it struck appellant, then he alone was negligent if negligence there were. The general demurrer interposed by appellee Martin should have been sustained.

Reading the petition with reference to the accident...