Stanger v. Hunter

• Decision Date: 25 September 1930
• Docket Number: 5573
• Citation: 291 P. 1060,49 Idaho 723
• Parties: ORVILLE B. STANGER, Respondent, v. A. G. HUNTER and INTERNATIONAL HARVESTER COMPANY OF AMERICA, a Corporation, Appellants
• Court: Idaho Supreme Court

291 P. 1060

49 Idaho 723

ORVILLE B. STANGER, Respondent, v. A. G. HUNTER and INTERNATIONAL HARVESTER COMPANY OF AMERICA, a Corporation, Appellants

No. 5573

Supreme Court of Idaho

September 25, 1930

AUTOMOBILES - COLLISION - ACTION FOR DAMAGES - NEGLIGENCE-PLEADING.

1. Pleading must not only state complete cause of action against defendant, but must also show right of action in plaintiff.

2. Complaint which fails to state facts sufficient to constitute cause of action does not support judgment for plaintiff.

3. Complaint, in action for damages sustained when automobile struck truck parked on highway, containing allegation of negligence of truck driver but not of truck owner, did not state action against owner.

4. Plaintiff must allege all ultimate facts essential to entitle him to recover; otherwise, complaint is demurrable.

5. Great liberality should be indulged in favor of complaint where defendants did not stand on demurrer but answered and went to trial.

6. Complaint will be upheld after verdict and judgment, if cause of action can be gleaned from complaint, however defectively stated.

7. Want of jurisdiction and defect in failing to state cause of action in complaint is not waived by answer (C. S., sec 6693).

8. Judgment on complaint failing to state cause of action could not be sustained on appeal under assignment of error to overruling general demurrer.

9. Negligence in leaving truck parked on highway at night held for jury, in action for damages sustained in rear-end collision.

10. Contributory negligence of motorist striking rear end of truck parked on highway at night held for jury.

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. C. J. Taylor, Judge.

Action in damages resulting from automobile collision. Judgment for plaintiff. Affirmed in part.

Cause remanded with instructions, and judgment reduce against defendant Hunter in the sum of $ 200. Costs to appellant.

H. W Soule, for Appellants.

Contributory negligence of the plaintiff, which is the proximate cause of the injury, is a good defense. (Rippetoe v. Feely, 20 Idaho 619, 119 P. 465.)

If the negligence of the person claiming to recover was a contributory cause of the collision, defendant is not liable. (Hughes v. Luther, 189 N.C. 841, 128 S.E. 145.)

"The driver is chargeable with knowledge of all that a prudent and vigilant operator would have seen and is accordingly chargeable with negligence if he fails to discover a vehicle which, or a driver whom, he would have discovered in time to avoid the injury if reasonable care in keeping a look-out had been exercised." (42 C. J. 44.)

"If he runs into a standing vehicle which he saw, or by the exercise of ordinary care should have seen in time to avoid striking it, he is guilty of negligence resulting in liability for any injury which is proximately caused thereby and precluding any recovery by him for injury to himself or to his vehicle to which such negligence contributed." (42 C. J. 1016, 1017; Hughes v. Luther, supra; Huddy on Automobiles, 7th ed., sec. 396, citing West Const. Co. v White, 130 Tenn. 520, 172 S.W. 301.)

"If the vision of the driver of an automobile is obscured by glaring lights of an approaching car it is his duty to slacken his speed and have his car under such control that he can stop it immediately if necessary." (Berry on Automobiles, 6th ed., sec. 201. See, also, Budnick v. Peterson, 215 Mich. 678, 184 N.W. 493; Hammond v. Morrison, 90 N.J.L. 15, 100 A. 154; Mathers v. Botsford, 86 Fla. 40, 32 A. L. R. 881, 97 So. 282; Downing v. Baucom's Admx., 216 Ky. 108, 287 S.W. 362.)

E. H. Hillman and C. L. Hillman, for Respondent.

A complaint is sufficient on general demurrer, though an essential fact is not alleged, where its existence is necessarily inferred from the existence of other facts necessarily alleged. (Duryee v. Friars, 18 Wash. 55, 50 P. 583; United States v. Skinner & Eddy Corp., 5 F.2d 708.)

In the construction of a pleading for the purpose of determining its effect, its allegations must be liberally construed with a view to substantial justice between the parties. (C. S., sec. 6707; Nobach v. Scott, 20 Idaho 588, 119 P. 295; McCormick v. Smith, 23 Idaho 487, 130 P. 999; The Mode v. Meyers, 30 Idaho 165, 164 P. 91; 1 Ban. Pl., sec. 71, p. 149 (and notes thereunder); Mont. Rev. Code 1921, sec. 9164; Robinson v. F. W. Woolworth Co., 80 Mont. 431, 261 P. 253.) Where a material fact is only stated inferentially, and the pleading is not demurred to specially for this reason, it is good after judgment. (C. S., secs. 668, 6707; Robinson v. F. W. Woolworth Co., supra; MarshallWells Co. v. Kramlich, 46 Idaho 355, 267 P. 611.)

Respondent Stanger, as bailee of the roadster he was driving may recover for the damage thereto under the allegation of possession or ownership, and he is not required to plead the terms of the bailment because he is the real party in interest. ( Pratt v. Northern P. Express Co., 13 Idaho 373, 121 Am. St. 268, 90 P. 341, 10 L. R. A., N. S., 499; Bailey v. Sullivan, 75 Colo. 346, 225 P. 830; Briedwell v. Henderson, 99 Ore. 506, 195 P. 575; Goodwyn v. Tuttle, 70 Ore. 424, 141 P. 1120; Armstrong v. Kubo & Co., 88 Cal.App. 331, 263 P. 365.)

In commenting upon a number of the cases referred to above as cited by appellants, we invite the court's attention to Morehouse v. City of Everett, 141 Wash. 399, 58 A. L. R. 1482, 252 P. 157, where a number of the cases appellants rely upon are cited and criticised by the Washington court.

MCNAUGHTON, J. Givens, C. J., and Budge, Lee and Varian, JJ., concur.

OPINION

MCNAUGHTON, J.

This is an action to recover damages resulting from a rear-end collision wherein a Ford roadster collided with a truck upon a highway in this state. The action is in two counts; the first count claiming for damages to the Ford roadster being driven by plaintiff, and the second claiming personal injuries resulting to plaintiff from the impact.

The action is against two defendants: against the defendant Hunter on the ground that he wrongfully and negligently parked a truck upon the highway in the nighttime without warning lights; against the International Harvester Company as the owner of the truck so wrongfully and negligently parked by the defendant Hunter.

The jury found for plaintiff and against both defendants on both counts. It assessed $ 200 damages under the first count and $ 500 damages under the second count. Judgment was entered on the verdict. A motion for a new trial was denied and the case is here on appeal from the judgment by defendants.

There are nine assignments of error, but the briefs and arguments on them may be fully considered under three general headings: 1. The sufficiency of the complaint to sustain the judgment. 2. The sufficiency of the evidence to establish negligence on the part of the defendant Hunter. 3. The claim of contributory negligence on the part of plaintiff.

It is claimed by both appellants that the complaint wholly fails to state a cause of action in the first count. The International Harvester Company claims the complaint wholly fails to state a cause of action against it in the second count. General demurrers were interposed by defendants separately on these grounds and were overruled by the court. Also, the defendants in their first, second and third "requested instructions" requested the court to instruct the jury to return a verdict for defendants respectively on these grounds, which requested instructions were refused. These rulings of the court are challenged by the appellants under appropriate assignments of error.

In the first cause of action wherein the plaintiff seeks to recover for damage to the Ford car he was driving, there is no allegation that he was the owner of it or that he had any right or interest whatever in it. The complaint was amended by adding to the clause alleging the amount of damages the words: "To plaintiff's damage in said sum." At the trial, over defendants' objection, plaintiff was permitted to testify that by arrangement between himself and his employer, who was owner of the car, he was responsible for the damage and that the appraised value of the car of $ 200 came against him as expenses.

The pleading must not only state a complete cause of action against the defendant but it must also show a right of action in the plaintiff. (21 R. C. L., p. 482, sec. 46; Wells v. Merrill, 204 A.D. 696, 198 N.Y.S. 496.

"If the complaint fails to state facts sufficient to constitute a cause of action . . . ., then it does not support the judgment and the judgment must be reversed." (C. S., sec. 6693; Trueman v. Village of St. Maries, 21 Idaho 632, 123 P. 508, citing with approval, Crowley v. Croesus Gold Min. Co., 12 Idaho 530, 86 P. 536.)

It follows the judgment on the first count cannot be sustained.

A like objection is made against the judgment on the second count by and on behalf of the International Harvester Company. The complaint is short. Paragraph one alleges the corporate existence of the Harvester Company. Paragraph two is as follows:

"That at the times hereinafter mentioned the said International Harvester Company of America was the owner of a certain International Truck, more particularly described as an International one-half ton truck, motor number 124777, Idaho License for the year One Thousand nine hundred and twenty-eight, number T-8312."

Paragraph three is as follows:

"That on or about the third day of December, 1928, between the hours of seven and eight o'clock P. M. in the night-time of said day, at a point approximately three (3) miles southwest from St. Anthony, in the County of Fremont, Idaho on the Yellowstone Highway, the Defendant, A. G. Hunter, did negligently,...