Wilde v. Hansen

• Decision Date: 01 November 1949
• Docket Number: 7543
• Citation: 211 P.2d 153,70 Idaho 8
• Parties: WILDE v. HANSEN
• Court: Idaho Supreme Court

211 P.2d 153

70 Idaho 8

WILDE v. HANSEN

No. 7543

Supreme Court of Idaho

November 1, 1949

A. A Merrill, Idaho Falls, Merrill & Merrill, Pocatello, for appellant.

Defendant offered to prove that plaintiff was not the real party in interest. Objection was made and sustained to this offer, and in this the court erred. Carrington v. Crandall, 63 Idaho 651 at page 656, 124 P.2d 914, 149 A.L.R. 824, and cases cited. MacLeod v. Stelle, 43 Idaho 64 at 71 249 P. 254.

A real party in interest, within the meaning of the provisions of the code, is the person who will be entitled to the benefits of the action if successful, one who is actually and substantially interested in the subject matter. Carrington v. Crandall, 63 Idaho 651 at page 658 124 P.2d 914, 149 A.L.R. 824.

Alvin Denman, Idaho Falls, for respondent.

The defect in naming parties defendant, if any exists, can not be raised by general demurrer going to the sufficiency of the complaint, but must be raised by special demurrer on the grounds of defect or misjoinder of parties defendant. I.C § 5-611; Bonham Nat. Bank of Fairbury v. Grimes, Pass Placer Min. Co., 18 Idaho 629, 111 P. 1078.

Cross-examination for the purpose of showing plaintiff was protected by insurance is improper. 9 Blashfield Cyc. of Automobile Law & Practice, § 6291, pp. 748, 749; Bow v. R. & N. Co., 43 Idaho 80, 251 P. 295; Kralick v. Shuttleworth, 49 Idaho 424, 436, 289 P. 74; Burdell v. Nereson, 28 Idaho 129, 135, 152 P. 576.

Holden, Chief Justice. Porter, J., and Glennon, D. J., concur. Givens and Keeton, JJ., concur in the conclusion.

OPINION

Holden, Chief Justice.

June 8, 1947, an automobile owned and driven by Melvin A. Wilde and an automobile owned by Joseph Hansen, driven by his son Lynn (at the time of the accident about 14 years of age), collided on the Grant and Lewisville highway in Jefferson county. Both were residents of that county. September 20, 1947, Wilde filed a complaint against Hansen in the justice court of Idaho Falls precinct, in Bonneville county, to recover certain alleged damages to the Wilde car. September 26, 1947, Hansen demurred to the complaint on the ground it did not state a cause of action. Thereafter, the record does not show when, Hansen filed both a general and special demurrer. Later, Wilde moved to strike certain paragraphs of the special demurrer set forth in such amended demurrer, on the ground the questions thereby raised had been waived. October 24, 1947, an order was entered overruling "defendant's [Hansen's] Demurrer" without specifying the demurrer overruled, whether the general or amended demurrer. November 12, 1947, Hansen answered. December 19, 1947, the cause was tried. January 19, 1948, judgment was rendered dismissing the action on the ground the driver of the Hansen car was not made a party to the action. Thereafter Wilde appealed to the district court on questions of law alone.

July 9, 1948, the district court vacated and set aside the said judgment of the justice court and ordered that court to enter judgment on the evidence adduced on the trial of the cause in said justice court. August 19, 1948, the justice court rendered judgment against Wilde and in favor of Hansen. September 11, 1948, Wilde appealed to the district court on questions of both law and fact. February 24, 1949, the cause was tried in the district court by the court sitting with a jury. On the same day the jury returned a verdict in favor of Wilde and against Hansen for $ 95.43, whereupon judgment was duly and regularly entered thereon. February 26, 1949, Wilde filed a memorandum of costs. February 28th Hansen moved to strike the memorandum of costs on the ground the judgment was for less that $ 100. March 10, 1949, the motion to strike was denied. April 18, 1949, Hansen prosecuted an appeal to this court.

We have examined the many contentions made by appellant. From these we have sifted those deemed to be sufficiently material to merit discussion. They will be discussed and disposed of in the following order:

1. That the complaint does not state facts sufficient to constitute a cause of action, in that, it is contended, it appears therefrom appellant's son was driving appellant's car at the time of the accident and that the son was not made a party as provided by subd. 3 of section 49-1004, I.C. That subdivision reads as follows:

[Subd. 3] "Operator to be made party defendant -- Recourse to operator's property. In any action against an owner on account of imputed negligence as imposed by this section the operator of said vehicle whose negligence is imputed to the owner shall be made a party defendant if personal service of process can be had upon said operator within this state. Upon recovery of judgment, recourse shall first be had against the property of said operator so served."

The purpose of the legislation is clear. That purpose, and the only purpose, was, that in the matter of the satisfaction of a judgment, recourse must first be had against the property of the operator and in order to so subject the property of the operator, it would be necessary, of course, to make him a defendant. While it is true subdivision 3, supra, provides an operator may be made a party defendant, the preceding section, which should be considered in connection therewith, to wit, 49-1003, provides:

[Sec. 49-1003] "Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years to drive such vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damage caused by the negligence of such minor in driving such vehicle."

It will be observed the last above quoted section expressly creates a joint, as well as a several liability, where an owner, as in the case at bar, permits a minor to drive his car, and the minor negligently operates the car to the damage of another. The liability being both joint and several, an action may be prosecuted against either or both.

We here point out that appellant's specification of error, under discussion, does not present the question as to whether respondent's complaint, in its statement of facts constituting his cause of action, is sufficient. Appellant's contention is that the complaint does not state a cause of action because the operator was not made a party defendant as required, as appellant contends, under subd. 3, supra. There is no merit in that contention. Whether, then, that contention being held without merit, appellant waived any further objection arising out of the failure to make the operator a party defendant, is not important.

2. That the district court was without jurisdiction in that the action in the justice court was brought in the wrong county.

Section 16-201, I.C., provides, among other things, concerning actions in justices' courts:

[Sec. 16-201] "Place of trial. -- Actions in justices' courts must be commenced, and subject to the right to change the place of trial as in this chapter provided, must be tried:

1. * * *

2. * * *

3. In cases of injury to the person or property: in the precinct or city where the injury was committed, or where the defendant resides."

And section 16-1002, I.C., provides:

[Sec. 16-1002] "Judgment of dismissal. -- Judgment that the action be dismissed, without prejudice to a new action, may be entered with costs, in the following cases:

1. * * *

2. * * *

3. * * *

4. When it is objected at the trial, and appears by the evidence, that the action is brought in the wrong county, or precinct, or city, but if the objection is taken and overruled, it is cause only of reversal on appeal, and does not otherwise invalidate the judgment; if not taken at the trial it is waived." [Emphasis added.]

While it appears from the record appellant moved in the justice court to dismiss the action, it further appears the motion was made upon the ground the operator was not made a party not upon the ground the action...