Stearns v. Graves

• Decision Date: 23 February 1940
• Citation: 61 Idaho 232,99 P.2d 955
• Parties: Saramae Stearns, A Minor, By Arthur J. Stearns, Her Guardian Ad Litem, Appellant, v. Richard L. Graves, Ray v. Chisholm And Great Lakes Casualty Company, Of Detroit, Michigan, A Corporation, Respondents.
• Court: Idaho Supreme Court

99 P.2d 955

61 Idaho 232

Saramae Stearns, A Minor, By Arthur J. Stearns, Her Guardian Ad Litem, Appellant, v. Richard L. Graves, Ray v. Chisholm And Great Lakes Casualty Company, Of Detroit, Michigan, A Corporation, Respondents.

Supreme Court of Idaho

February 23, 1940

AUTOMOBILES-NEGLIGENCE-LIABILITY INSURANCE-ACTION FOR DAMAGES-MISJOINDER-PLEADING, SUFFICIENCY OF.

1. An automobile accident liability insurance policy, providing that insurer agreed to pay on insured's behalf all sums which insured became obligated to pay because of liability imposed by law for damages, was not enforceable by one injured when struck by insured automobile under statute authorizing enforcement of contract made expressly for third person's benefit by such person. (I. C. A., sec. 28-102.)

2. The parties to automobile liability insurance policy could legally contract that no action should lie against insurer on any claim until amount thereof was fixed and rendered certain by judgment against insured or agreement between parties to action thereon with insurer's written consent.

3. Where automobile liability insurance policy provided that no action should lie against insurer on any claim until full amount thereof was fixed by judgment against insured or agreement between parties to action thereon with insurer's written consent, one injured when struck by insured automobile cannot join action against insurer on policy with action against insured to recover damages, as plaintiff cannot demand advantages of insurance contract and refuse to be bound by its disadvantages thereof and court cannot nullify such provision. (I. C. A., sec. 5-606.)

4. The statute providing that any person who has or claims interest in controversy adverse to plaintiff or is necessary party to complete determination or settlement of question involved in action may be made defendant, and statutes authorizing plaintiff to unite several causes of action of specified classes in same complaint and providing that defendant may demur to complaint showing on its face defect or misjoinder of parties or improper uniting of several causes of action must be construed together as in pari materia. (I. C. A secs. 5-313, 5-606; sec. 5-607, subds. 4, 5.)

5. The statute providing that any person having or claiming interest in controversy adverse to plaintiff may be made defendant does not authorize plaintiff to unite causes of action ex contractu and ex delicto in complaint. (I. C. A., sec. 5-313; sec. 5-606, subds. 1, 6, 7.)

6. In action against owner and driver of automobile and owner's liability insurer for injuries to one struck by automobile court properly held that causes of action ex contractu and ex delicto could not be united in complaint and that insurer was improperly joined as party defendant. (I. C. A., sec. 5-313; sec. 5-606, subds. 1, 6, 7; sec. 5-607, subds. 4, 5.)

7. In personal injury suit, plaintiff must allege facts necessary to be shown before defendant's negligence will be presumed, and thus inform defendant of specific facts from which conclusion of negligence is drawn.

8. In personal injury suit, plaintiff must plead particular acts of commission or omission constituting defendant's alleged negligence.

9. In action for injuries to one struck by defendant's automobile driven by codefendant, defendant's special demurrer to amended complaint for uncertainty was properly sustained, where such complaint failed to plead particular acts of commission or omission constituting defendant's negligence alleged generally.

10. The trial court's memorandum opinion, warranting inference that he passed on defendants' general demurrers and on defendant's special demurrers to amended complaint, is not properly part of record on appeal from judgment of dismissal, so that such court's order, ruling on other defendant's special demurrer only, is controlling. (I. C A., sec. 11-212.)

11. Where trial court entered no order sustaining defendant insurance company's special demurrer to amended complaint on ground that action ex contractu on automobile liability insurance contract was improperly united with action ex delicto in tort for injuries to one struck by insured automobile and that such company was improperly joined with automobile owner and driver as party defendant in tort action, judgment dismissing insurance company was premature.

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

Action for damages for personal injuries. Appeal from judgment of dismissal. Reversed and remanded with directions.

S. T. Schreiber, for Appellant.

If the complaint contains one good cause of action, a general demurrer to the whole complaint will not lie. A demurrer must be directed to the whole of the pleading or to a particular statement of a cause of action or defense. It cannot be directed to certain lines thereof. (Locke v. Peters, 65 Cal. 161, 3 P. 657.)

Where a complaint states any cause of action that will put defendant on his defense, it is not subject to general demurrer. (Village of Sandpoint v. Doyle, 11 Idaho 642, 83 P. 598, 4 L.R.A., N. S., 810; Steinour v. Oakley State Bank, 32 Idaho 91, 177 P. 843.)

A general demurrer to a complaint raises only the question of its sufficiency in stating a cause of action. (First Nat. Bank v. Sampson, 7 Idaho 564, 64 P. 890.)

The test is whether there is more than one cause of action stated in complaint, is not whether there are different kinds of relief prayed for or objects sought, but whether there is more than one primary right sought to be enforced or one subject of controversy presented by adjudication. (Pom. Code Remedies, sec. 194; South Bend Chilled Plow Co. v. George C. Cribb Co., 105 Wis. 443, 81 N.W. 675.)

Under the statutes I. C. A., sec. 5-606, the plaintiff may unite several causes of action in the same complaint where they all arise out of, etc. Under a Rhode Island statute it provides for an additional remedy but no additional cause of action. Plaintiff has only one cause of action for which statute gives two remedies. (Martin v. Zurich Gen. Acc. & Liability Ins. Co., 16 F.Supp. 897 (1936); Unfried v. Libert, 20 Idaho 708, 119 P. 885.)

One may insure himself against liability to third persons for automobile accidents. (Gould v. Brock, 221 Pa. 38, 69 A. 1122; Kane v. Mendenhall, 5 Cal. (2d) 749, 56 P.2d 498.)

One injured in a collision with another 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. (American Auto. Ins. Co. v. Struwe, (Tex. Civ. App.) 218 S.W. 534; 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; Milliron v. Dittman, 180 Cal. 443, 181 P. 779; Collard v. Universal Auto Ins. Co., 55 Idaho 560, 45 P.2d 288.)

One who indemnifies another, against an action to be done by the latter, is liable jointly with the person indemnified, and separately, to every person injured by such action. (Pirie v. Tvedt, 115 U.S. 41, 5 S.Ct. 1034, 1161, 29 L.Ed. 331; Lloyd v. Southern R. Co., 166 N.C. 24, 81 S.E. 1003; Sharkany v. Hardware Mut. Cas. Co. et al., 245 A.D. 737, 280 N.Y.S. 111.)

Claimant may sue insurer under an automobile public liability insurance policy which is in legal effect same as ordinary insurance policy. (Williston, Contracts, sec. 369; A. Rose & Son v. Zurich Gen. Acc. Liability Co., supra; Metropolitan Casualty Ins. Co. of N.Y. v. Albritton, 214 Ky. 16, 282 S.W. 187; Merchants Mut. etc. Ins. Co. v. Smart, 267 U.S. 126, 45 S.Ct. 320, 69 L.Ed. 534.) Hawley & Worthwine, for Respondents.

Under the policy involved here legal liability does not arise against the insurer and in favor of the person injured prior to a judicial determination of liability against the insured. It is a contract of indemnity and not liability. (Collard v. Universal Automobile Ins. Co., 55 Idaho 560, 45 P.2d 288; Parks v. Mathews, 58 Idaho 8, 69 P.2d 781; City of Pocatello v. Fargo, 41 Idaho 432, 242 P. 297; Smith Stage Co. v. Eckert, 21 Ariz. 28, 184 P. 1001, 7 A.L.R. 995; Van Derhoof v. Chambon, 121 Cal.App. 118, 8 P.2d 925; New York Indemnity Co. v. Ewen, 221 Ky. 114, 298 S.W. 182; Severns v. California Highway Indemnity Exchange, 100 Cal.App. 384, 280 P. 213.)

Our statute giving a third party a right to sue is not applicable here. (Conley v. U.S. Fidelity & Guaranty Co., 98 Mont. 31, 37 P.2d 565; Van Derhoof v. Chambon, supra; Metropolitan Cas. Ins. Co. of New York v. Colthurst, 36 F.2d 559.)

The carrier of public liability insurance cannot be joined as a party in interest under section 5-313, Idaho Code Annotated. (Secs. 5-606, 5-607, I. C. A.; Kruger v. St. Joe Lumber Co., 11 Idaho 504, 83 P. 695; Dalhquist v. Mattson, 40 Idaho 378, 233 P. 883; Idaho Irr. Co., Ltd., v. Dill, 25 Idaho 711, 139 P. 714; 20 Cal. Jur., sec. 15, p. 502; Kuntz v. Spence, (Tex. Com. App.) 67 S.W.2d 254.)

As against a special demurrer a complaint alleging negligence in general terms is insufficient. (King v. Oregon Short Line Ry. Co., 6 Idaho 306, 55 P. 665, 59 L.R.A. 209; Crowley v. Croesus etc. Co., 12 Idaho 530, 86 P. 536; Younie v. Blackfoot L. & W. Co., 15 Idaho 56, 96 P. 193; Osborn v. Carey, 24 Idaho 158, 132 P. 967; sec. 5-606, I. C. A.; Kruger v. St. Joe Lbr. Co., supra.)

HOLDEN J.

-March 13, 1938, respondent Great Lakes Casualty Company, a corporation, issued an automobile accident insurance policy to respondent Richard L. Graves for a term of one year. The policy covered a Buick sedan owned by Graves. October 21 1938, at about 8:45 P. M., respondent Ray V. Chisholm, while driving the Graves automobile down Overland Avenue in Boise...