Wright v. Intermountain Motor Car Co.

• Decision Date: 20 November 1918
• Docket Number: 3235
• Citation: 53 Utah 176,177 P. 237
• Court: Utah Supreme Court
• Parties: WRIGHT v. INTERMOUNTAIN MOTOR CAR CO., et al

177 P. 237

53 Utah 176

WRIGHT v. INTERMOUNTAIN MOTOR CAR CO., et al

No. 3235

Supreme Court of Utah

November 20, 1918

Rehearing Denied January 6, 1919.

Appeal from the District Court of Salt Lake County, Third District Hon. P. C. Evans, Judge.

Action by Mary Josephine Wright against the Intermountain Motorcar Company and C. N. Carruthers.

Judgment on verdict for plaintiff against both defendants, and they separately appeal.

REVERSED as against defendant company and AFFIRMED as against the individual defendant.

Allen T. Sanford and Bagley & Ashton for appellants.

Moore Mitchell & Maginnis and George C. Buckle for respondent.

FRICK, C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

The plaintiff brought this action against the defendants to recover damages for personal injuries which she alleged she suffered from the negligence of the defendants in driving an automobile against the plaintiff, knocking her down and severely injuring her. After alleging the necessary matters of inducement, etc., plaintiff alleged that on the 23d day of December, 1916, at about nine twenty o'clock p. m., while she was crossing the intersection of certain streets in Salt Lake City, "an automobile owned and controlled by Intermountain Motor Company, one of the defendants herein, and directed, operated, and driven by or under the direction or control of the defendant C. N. Carruthers, was driven along," etc. She then alleges that the automobile was driven at an unlawful rate of speed; that she was run against and knocked down, and she then describes her injuries and alleges her damages and prays for judgment. Defendants each filed a general demurrer to the complaint. The demurrers were overruled, and the defendants then filed a joint answer, in which they denied that portion of the complaint we have quoted, denied the alleged negligence, and pleaded contributory negligence on the part of the plaintiff. Upon these issues a trial to a jury resulted in a verdict in favor of plaintiff against both defendants. Judgment was duly entered on the verdict, from which the defendants have taken separate appeals and have separately assigned numerous errors.

We shall consider such assignments of error as we deem material, regardless of the order in which they are assigned or argued in counsel's brief.

It is contended that the court erred in overruling the general demurrers. We do not deem it necessary to make an analysis of the allegations of the complaint. It is no doubt true that the allegations respecting the purpose for which the automobile was being used and on whose behalf it was used at the time of the accident are meager and somewhat doubtful. Under our statute we, however, are required to construe the allegations of a pleading liberally. When, therefore, we consider, as we must, that a general demurrer admits every material fact as well as every legitimate inference deduced from such facts, and if the allegations of the complaint are liberally construed, we think the complaint, although far from being a model pleading, is, nevertheless, sufficient to withstand a general demurrer. If a special demurrer had been interposed requiring a more specific statement of particular facts, the question might well be different.

At the close of plaintiff's evidence the defendants interposed separate motions for a nonsuit. The motions were denied, and the defendant corporation, hereinafter designated company, now insists that the court erred in denying its motion for a nonsuit. At the close of all of the evidence the defendants, again in separate motions, asked the court to direct the jury to return separate verdicts in their favor. The court also denied those requests. The company now assigns the foregoing rulings of the court as error. We shall consider the two assignments referred to together.

We are of the opinion that so far as the company is concerned the court erred in denying both of those motions. The undisputed evidence, so far as material to the decision of the two assignments just referred to, is, in substance, as follows: One Brannen, who was not made a party to the action, was interested in a corporation which was engaged in the automobile business in Idaho. He and defendant Carruthers were acquaintances, and on the 23d day of December, 1916, the day of the accident, Brannen called on Carruthers at the company's place of business. The company was engaged in the business of buying, selling, and dealing in automobiles and accessories at Salt Lake City, and the defendant Carruthers was its manager. On the evening of the day aforesaid Brannen and Carruthers had dinner together with one or two others, and after dinner, about eight thirty p. m., Brannen suggested, as he puts it, to Carruthers that the latter go with Brannen to call upon a young lady, an acquaintance of Brannen's, and who, it seems was also an acquaintance of Carruthers. Carruthers consented to go, and took an automobile belonging to the company, which was being used in its business as a "demonstrator car." The two accordingly took the car, Carruthers driving it, to where the young lady lived, which, it seems, was not a great distance from the company's place of business. They arrived at the home of the young lady a little before nine o'clock and left there a little after that hour to come up town. On entering the car Brannen, over Carruthers' protest, entered the front seat to drive the car. Carruthers asked that he be permitted to drive the car, but Brannen insisted that he would drive it, whereupon Carruthers and the young lady took the rear seat, and Brannen drove the car up town. They had not gone very far on their way up town when, in crossing State street on Fourth South street, the car collided with the plaintiff, and she was seriously injured in the collision. The automobile, after striking plaintiff, did not stop, but proceeded nearly a block farther, where Brannen, Carruthers, and the young lady alighted from the car and entered the New Grand Hotel. Brannen had asked the young lady to attend a dance with him at the Newhouse Hotel, which was only a short distance from the New Grand Hotel, and, it seems, she had consented to do so, but, in view of the accident, it seems, they did not go to the Newhouse Hotel nor attend the dance, but entered the New Grand Hotel as before stated. Brannen, it seems, immediately left the hotel, and Carruthers then took the young lady to her home, not using the car, however. The company with which Brannen was connected in Idaho at different times had business dealings with the company, but on the day in question had no business transactions of any kind, either with the company or with Carruthers. Brannen had, it seems, however, during the day, called on Carruthers. In visiting the young lady Brannen went for the sole purpose of inducing her to attend the dance, as aforesaid, and Carruthers went with him merely because Brannen had asked him to go, and Carruthers took the car to accommodate Brannen and the young lady, if she should consent to go to the dance, and for no other purpose. There was a great deal of snow on the ground at the time, and it was difficult to drive motorcars on the street. There was no design or purpose on the part of either Brannen-or Carruthers to use the car except for the purpose stated, and the company was neither related to nor had any interest in or connection with the enterprise in which Carruthers and Brannen were engaged at the time of the accident.

Other evidence was also produced by the plaintiff, over the objection of the company, respecting the custom of automobile dealers in extending courtesies to their customers by driving them about in automobiles. It was also shown, over like objections, that the company had at times extended such courtesies to some of its customers. In view, however, that the evidence is clear-cut and undisputed with regard to why the car was taken by Carruthers at the time and what the purpose of the young men was in taking it, and what it was being used for at the time of the accident, all the inferential evidence becomes wholly immaterial. Where it appears, as in this case, that the instrumentality which causes an accident and injury was, at the time of such accident, in the custody and control of a servant or agent...