Wealth v. Renai, 637

• Decision Date: 02 March 1955
• Docket Number: 1954,No. 637,637
• Citation: 49 Del. 289,114 A.2d 809,10 Terry 289
• Parties: , 49 Del. 289 Jacob WEALTH and H. V. Higley, Administrator of Veterans' Affairs, an Officer of the United States of America, Plaintiffs, v. Frank J. RENAI, Defendant. Civil Action
• Court: Delaware Superior Court

Page 809

114 A.2d 809

10 Terry 289, 49 Del. 289

Jacob WEALTH and H. V. Higley, Administrator of Veterans' Affairs, an Officer of the United States of America, Plaintiffs, v. Frank J. RENAI, Defendant.

Civil Action No. 637, 1954.

Superior Court of Delaware, New Castle County.

March 2, 1955.

Defendant's motion to strike paragraph from complaint. denied.

Plaintiff, Wealth, has sued defendant for injuries due to defendant's alleged negligence. One of the specifications of negligence (Par. 3(a) of the complaint) is that defendant violated Title 21, § 4133(e) Delaware Code, which prohibits automobiles passing other machines proceeding in the same direction at intersections. The language of the section is as follows:

'The driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any railway grade crossing or at any intersection of highways unless permitted so to do by a traffic or police officer.'

Plaintiff, a pedestrian, alleges that he was struck by defendant's machine as he was crossing at the intersection of Front and West Streets in this city and at the time defendant's car was passing another machine.

For the purposes of this motion, defendant concedes that the paragraph in question properly charges defendant with negligence per se as the result of a statutory violation but he argues that it fails to show any causal connection between the breach of the statute and the injury complained of. Or to state it differently, the defense is that the section was designed, not for the protection of pedestrians, but rather for the prevention of collisions between vehicles at intersections.

Louis J. Finger, Wilmington, for plaintiffs.

William Prickett, Wilmington, for defendant.

LAYTON, Judge.

Plaintiff interposes two grounds of objection to defendant's motion to strike, (1) that such a motion is improper and (2) that inasmuch as it is not clear that the section in question excludes pedestrians from its scope, defendant's motion must be denied.

Plaintiff is clearly correct in objecting to the form of defendant's motion. A motion to strike under Superior Court Rules, Civil rule 12(f), Del.C.Ann., is not proper where it seeks the dismissal of one of the causes of action in a complaint as a matter of law. This was the function of the old demurrer, now abolished by the new Rules of Civil Procedure. A motion to dismiss one or all the causes of action asserted in the complaint, depending upon the case is proper. The very reading of the Rule indicates the impropriety of attempting to use a motion to strike in the instant case.

'(f) Motion to Strike. Upon motion made by a party * * * the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.'

Defendant's motion to strike is denied as a matter of form but for the sake of brevity will be considered as a motion to dismiss. I now turn to the merits of the argument.

It is settled law that when one violates the provisions of a statute enacted for the safety of others, he is guilty of negligence per se. However, in order to be actionable, there must be a causal connection between the statutory violation and the injury complained of. Lindsay v. Cecchi, 3 Boyce 133, 80 A. 523, 35 L.R.A.,N.S., 699. A clear illustration of the principle may be observed in Brown v. Schendelman, 4 W.W.Harr. 50, 143 A. 42, 44, where a child playing on a vacant lot fell into a fire, which was lighted within 50 yards...