Parks v. Mathews

HOLDEN, J. In February, 1936, appellant was driving a draft horse hitched to a loaded wagon on one of the highways of this state. While he was so driving, an automobile driven by Helen Mathews and owned by Roy E. Mathews, ran into the rear of the wagon, killing the horse and allegedly damaging the wagon and injuring appellant. In July following the accident, appellant commenced an action against Helen Mathews, the driver of the car, and her father, Roy E. Mathews, to recover damages alleged to have been sustained on account of the accident, and joined the Farmers Automobile Inter-Insurance Exchange (hereinafter called .the Exchange) as a party defendant, upon the theory, apparently, that the Exchange, by the issuance and delivery of an accident policy to respondent Roy E. Mathews, had become liable to appellant for such damages as he had sustained by reason of the accident. Following the filing of an original complaint, appellant filed an amended complaint. To the *11 amended complaint each of the respondents filed separate, general and special demurrers, motions to strike, and motions to separately state causes of action. The trial court sustained the general demurrer of defendant and respondent Roy E. Mathews, as well as his motion to strike certain allegedly irrelevant, sham, redundant, immaterial, and prejudicial matter from the amended complaint. It overruled respondent Helen Mathews’ general demurrer but sustained her special demurrer. The trial court also sustained the motion of the Exchange to strike certain matter from the amended complaint upon the ground that it was irrelevant, sham, redundant, immaterial, and prejudicial, but did not rule upon the general or special demurrers filed by the Exchange. The record presents three questions for determination, first, whether the court erred in sustaining the motion of the Exchange to strike; second, whether the court erred in sustaining the motion of respondent Roy E. Mathews to strike certain matter from the amended complaint; and, third, whether the court erred in sustaining the special demurrer of Helen Mathews. These questions will be discussed in the order stated. It appears that the motions to strike of the respondents are identical. The Exchange moved to strike and the trial court struck from the title to the action: “Roy E. Mathews and Farmers Automobile Inter-Insurance Exchange (a corporation) by Farmers Underwriters Association, its attorney-in-fact.” It also struck the following matter: “and that the Farmers Automobile Inter-Insurance Exchange is an insurance corporation, duly organized, existing under and by virtue of the laws of the State of California, with its principal place of business at Los Angeles, and empowered to transact business and issue automobile liability insurance in Idaho, having heretofore complied with the laws of the state relative to foreign corporations doing business in this state, and maintains an office at Boise, Ada County, Idaho.” Also the following matter; *12 “defendant’s Roy E. Mathews’, automobile (said Roy E. Mathews being the father of defendant Helen Mathews) ; and who had given his full consent and permission to drive and use the said car, ’ ’ Also the following: “which automobile was and is registered in the name of Roy E. Mathews, as owner,” Also, “bruising his body and injuring his back, knocking him senseless and permanently crippling and incapacitating him, and leaving him under said wreck by the roadside until released from his predicament by travelers on said highway.” Also, “by the consent, approbation, and permission of her father, Roy E. Mathews, the owner of said machine and who had full knowledge of her recklessness and carelessness as a driver and knew or should have known that she was an unsafe person to operate his automobile at any time”; Also paragraph numbered V of the amended complaint, reading as follows: “That theretofore the said Roy E. Mathews in contemplation for safety from loss by accident, procured a policy of insurance from the defendant Farmers Automobile Inter-Insurance Exchange and paid the premium thereon with a guaranty in case of liability incurred by reason of any accidents of his own, or by his agents, servants, or employees, or members of his family in the operation of said car, an accidental loss incurred through and by the said automobile upon the public highway and through the operation of said ear that the same be indemnified fully and that the said Farmers Automobile Inter-Insurance Exchange agreed in consideration of the premium paid and to be paid to insure the said defendant as named herein for an initial term of six months from twelve o’clock noon, Standard Time, at insured’s stated address on the effective date shown and set out in the application and for such succeeding terms of six months as the guaranty deposit is maintained and required by the policy and the application therefor while the automobile heretofore described is and remains within the limits of the continental limits of the United States.” *13 Also paragraph numbered VI of the amended complaint, reading as follows: “That the said Farmers Automobile Inter-Insurance Exchange, defendant, is a foreign corporation, licensed to engage in the insurance business in the state of Idaho, and as such corporation insures against liability to others by reason of the operation of motor vehicles; that prior to the time of said accident, heretofore set forth, defendant Farmers Automobile Inter-Insurance Exchange at Boise, Ada County, Idaho, did issue and deliver a policy of' automobile liability insurance to defendant Roy E. Mathews for a valuable consideration, upon an application duly made, copies of which application and insurance policy are hereto attached and impleaded and made a part of this complaint and marked exhibit ‘A,’ upon which application the policy was issued covering and by which it agreed to pay any liability incurred on account of injury to property or persons of others by reason of the operation of the automobile owned and operated by defendant or members of his family, agents, or servants, with his consent; also any person while using the automobile or any person or organization legally responsible for the use thereof, all of which facts are more fully set out in the original policy which is in defendants’ possession; that said policy of insurance was in full force and effect on the 22d day of February, 1936, the day and time the accident in question occurred, and by reason and by virtue of the terms of said policy said defendant Farmers Automobile Inter-Insurance Exchange is liable to the plaintiff for damages caused by said accident because of the negligence of the defendants, Helen Mathews and Roy E. Mathews within the specified limitations and terms in said policy in the sum not to exceed ten thousand dollars.” Also paragraph numbered VII of the amended complaint, reading as follows: “Plaintiff further upon information and belief alleges: that assured has fully complied with any and all the conditions contained in policy on his part to be performed prior to the bringing of this action.” Section 5-802, I. C. A., provides that: “Sham, and irrelevant matter. — Sham and irrelevant answers, and irrelevant and redundant matter inserted in a *14 pleading, may be stricken ont, upon such terms as the court may in its discretion, impose.” The motion of the Exchange to strike the above-quoted matter from the amended complaint was made upon the ground that it was “irrelevant, sham, redundant, immaterial and prejudicial. ’ ’ Bespondent Exchange did not, in its motion, move to strike any of the above-quoted matter upon the single ground that it was “sham,” nor upon the single ground that it was “irrelevant,” nor upon the single ground that it was “redundant.” It moved to strike such matter from the amended complaint upon but one ground, to wit, that it was all “irrelevant”; that it was also all “sham”; that it was also all “redundant”; that it was also all “immaterial”; and that it was also all “prejudicial.” In other words, the Exchange moved to strike, the said matter from the amended complaint upon the ground that it was all equally “irrelevant, sham, redundant, immaterial and prejudicial.” No attempt was made to separate the “sham” matter, if any, from the “irrelevant,” if any, nor the “irrelevant” matter, if any, from the “redundant,” nor was any attempt made to separate the “sham, irrelevant, and redundant” matter, if any, from the relevant matter, if any. We are not required to determine whether the amended complaint states a cause of action against the Exchange, because the trial court did not pass upon the general demurrer of the Exchange challenging the sufficiency of that complaint. To repeat, the question is, Did the trial court err in sustaining the motion to strike made by respondent Exchange f In stating any cause of action, no matter what it might be, against a corporation, it is proper and usually necessary, to allege its corporate existence and, if organized pursuant to the laws of another state, it is also proper to allege that it is a foreign corporation; nevertheless, the trial court struck from the amended complaint the matter alleging the corporate existence of the Exchange. And in stating a cause of action against a surety company for damages sustained in .an automobile accident on account of the negligence of an agent of an insured car owner, upon the theory that the insurer undertook and prom *15 ised that it would pay to any person or persons who might be injured through the carelessness or negligence of the insured car owner, or his agent, in operating the automobile, the amount of damages suffered, not exceeding the amount stated in the policy, it is both proper and relevant to allege that the company issued and delivered a policy to the ear owner, in that until a policy has been issued and delivered, there is no contract and, therefore, no liability on its part either to a third person or to any one else. The trial court, however, struck from the amended complaint the allegation that the Exchange issued a policy of insurance to respondent Eoy E. Mathews prior to the accident. Conceding, for instance, that the fact of the issuance of the policy, as well as the allegations of the complaint touching the alleged liability of the Exchange to appellant for the damages he claims to have suffered, could have been alleged in añore apt laaaguage, it does not follow that such matter is, on that accouaat, either sham, or irrelevaaat, or reduaadaait. Moreover, in statiaag such a cause of action, it is proper and relevant to allege, for example, that an automobile involved in an accideait is registea’ed in the aaarne of a certain pea’son, as a circuanstance tending to show ownership, and it is proper aaad relevaaat to allege that the person driviaag the car at the time of the accident was driving it with the consent of the owaier, in that such coaisent is one of the oiecessary elemeaits of “agency,” and it is likewise proper and relevant to allege damage to property aaad injuries to the persoaa, if any, iai that unless damages of some character are sustained, none can be recovered, no matter what the terms of the accident policy may be; nevertheless, the trial court struck all such matter from the amended complaiait. Some of the matter stricken from the amended complaint is, aio doubt, irrelevant, but respondeaat Exchange did aiot, in its motion to strike, separate that matter from the relevant matter. This court held in Valley Lumber Co. v. McGilvery, 16 Ida. 338, 101 Pac. 94, that, “Where some parts of the matter attempted to be stricken out from a pleadiiag upon the grouaid that the same is sham, redundant aaad irrelevaaat, are intermingled with facts which are relevant and proper, it is not error to overrule said *16 motion, as it is necessary to separate, in the motion, the particular parts claimed to be sham, irrelevant and redundant from those which are relevant and proper.” And, in a later case, Maxwell v. Twin Falls Canal Co., 49 Ida. 806, 810, 292 Pac. 232, this court adhered to the above-quoted rule. The converse of that rule is, that where, as in the ease at bar, irrelevant facts are intermingled with relevant, and the irrelevant are not separated from the relevant, it is error to strike both the irrelevant and the relevant. Where matter alleged in a complaint is foreign to any theory of plaintiff’s case, it is, of course, irrelevant, and may be stricken, but where it is relevant upon any theory, it is error to strike even though the matter falls short of stating a cause of action, in that the sufficiency of complaints must be tested by demurrer as provided by section 5-607, I. C. A. The trial court, upon the motion of respondent Roy E. Mathews, also struck all of the above-quoted matter from the amended complaint. There is enough alleged in the amended complaint to make it apparent that appellant seeks to recover damages from respondent Roy E. Mathews upon the theory that the relationship of principal and agent existed between him and respondent Helen Mathews at the time of the accident. Again, there is no question raised by the motion as to whether the matter stricken sufficiently alleges “agency.” The question is, Is such matter relevant in alleging that such a relationship actually existed ? An instance or two will serve to illustrate the relevancy of some of the matter stricken. It must be conceded that it would be both proper and relevant to allege the ownership of the car in question, that the person driving it at the time of the accident was driving it with the consent of the owner, as well as the damage to property and injury to person, if any. And allegations of that nature are as relevant in alleging “agency” against a car owner as they are against a surety company, where it is sought to recover damages upon the theory hereinbefore mentioned. In closing our discussion of the first and second questions, we desire to emphasize the fact that we are not by any means holding that the amended complaint sufficiently alleges that *17 the relationship of principal and agent existed between respondent, Roy E. Mathews, and respondent, Helen Mathews, at the time of the accident, nor that such complaint states a cause of action against respondent Exchange, but only that some of the matter stricken was relevant to the theory upon which appellant seeks to recover. We come now to the third question presented by the record. Did the trial court err in sustaining the special demurrer of respondent Helen Mathews ? It is alleged in the amended complaint that, “Helen Mathews .... coming on from the rear at a rapid and negligent speed drove said automobile in a careless and negligent manner and collided with plaintiff’s wagon .... “That said injury to plaintiff and damage .... were the direct result and proximate cause of gross careless, negligent, heedless, and reckless operation of the Chevrolet car . . . . that the said defendant Helen Mathews drove the said machine deliberately at a high rate and unsafe speed into the vehicle of the plaintiff, .... ” It will be observed the allegation that respondent Helen Mathews deliberately drove the machine at a high rate of speed into the vehicle of the plaintiff, and the allegation that “Helen Mathews .... coming on from the rear at a rapid and negligent speed drove said automobile in a careless and negligent manner and collided with plaintiff’s wagon . . . . ” and the allegation “That said injury to plaintiff and damage .... were the direct result and proximate cause of gross careless, negligent, heedless, and reckless operation of the Chevrolet car .... ” are commingled in one count of the amended complaint. Respondent Helen Mathews demurred specially upon the ground, among others, that the complaint was ambiguous in that it could not be ascertained from such allegations as to whether the damages sought to be recovered “were wholly due and caused by the defendants’ acts and were the direct result and proximate cause of gross careless, negligent, heedless, and reckless operation of the Chevrolet car,” or whether appellant sought to recover damages upon the ground “that the said defendant Helen Mathews drove said machine de *18 liberately at a high rate and unsafe speed into the vehicle of the plaintiff.” Where, as here, two causes of action are improperly united and commingled in one count of the complaint, the proper remedy to reach that defect is by motion to require the plaintiff to state such causes of action in different counts (Darknell v. Coeur d’Alene etc. Transp. Co., 18 Ida. 61, 108 Pac. 536; Labonte v. Davidson, 31 Ida. 644, 175 Pae. 588). In most instances the commingling of two or more causes of action in one count of a complaint would render the pleading uncertain as to whether a recovery would be claimed upon the ground, as in the case at bar, of a deliberate and unlawful injury, or upon the ground of a negligent injury; nevertheless, where the ambiguity or' uncertainty arises, as in the instant case, by reason of such commingling, the remedy is by motion to require that the causes of action be separately stated in different counts. The judgment is reversed and the cause remanded with instructions to the trial court to deny the motions to strike of respondents Exchange and Roy E. Mathews, and to overrule the special demurrer of respondent Helen Mathews, and generally for further proceedings in harmony with this opinion. Costs awarded to appellant. Morgan, C. J., and Ailshie, J., concur. Givens, J., dissents. Petition for rehearing denied.