Summary
In Archer v. Long, 46 S.C. 292, 24 S.E. 83, although section 345 of the Code provides, that appeals from orders granted at chambers, shall be noticed within ten days from written notice of the granting thereof, this Court held, that the time to appeal did not begin to run, until the order appealed from was filed with the clerk of Court, notwithstanding notice of the granting thereof had been given, in strict accordance with the terms of the statute.
Summary of this case from O'Rouke v. Paint Co.Opinion
No. 27,800.
Filed March 1, 1943.
1. PLEADING — Joint Demurrer — Complaint in Two Paragraphs — One Paragraph Good — Effect. — Where, prior to the adoption of Rule 1-6 of the Supreme Court, a joint demurrer for want of facts was addressed to a complaint in two paragraphs, there was no error in overruling the demurrer unless both paragraphs were bad. p. 192.
2. PLEADING — Complaint — Construction of Terms Used — Meaning of Word "Passenger." — In an action for damages for injuries sustained as a result of an automobile collision, the use of the word "passenger" in the complaint, as describing the relationship between plaintiff and defendant, does not necessarily imply that the plaintiff was a guest within the contemplation of the Guest Statute, since the term "passenger" ordinarily imports some contractual relation between the parties. p. 192.
3. PLEADING — Complaint — Construction of Terms Used — Relationship Between Driver of Automobile and Passenger. — In an action for damages for injuries sustained as a result of an automobile collision, wherein plaintiff alleged in one paragraph of her complaint that she was a "passenger" in the automobile of defendant, it could not be said as a matter of law that such paragraph alleged that plaintiff was a guest within the meaning of the Guest Statute, but it disclosed the existence of some relationship that imposed upon the defendant the duty to exercise ordinary care with respect to plaintiff. p. 192.
4. PLEADING — Motions — Making Complaint More Specific — Duty of Defendant Desiring That Further Information Be Pleaded. — If, in an action by a passenger in an automobile against the operator thereof for damages for personal injuries, defendant is not satisfied with or desires more information with respect to plaintiff's relationship to him as alleged in the complaint, he should move the court that the complaint be made more specific. p. 192.
5. PLEADING — Theory — Inconsistent Theories Pleaded in Separate Paragraphs — Election Not Required. — While inconsistent theories should not be alleged in a single paragraph of complaint, they may be charged in separate and distinct paragraphs, and the plaintiff will not be called upon to make an election between them either before or upon the trial. p. 193.
6. TRIAL — Directed Verdict — Waiver of Error in Ruling by Offer of Evidence. — Error, if any, in overruling defendant's motion for a directed verdict made at the close of plaintiff's evidence, is waived by offering evidence in his own behalf. p. 194.
7. APPEAL — Presentation in Lower Court of Grounds of Review — Directed Verdict Denied — Timely Exception to Tendered Peremptory Instruction Required. — Alleged error in overruling defendant's motion for a directed verdict, made at the conclusion of all the evidence, cannot be presented on appeal by assigning as error the action of the court in overruling the motion, but the error can only be saved by a timely exception to a tendered peremptory instruction. p. 194.
8. APPEAL — Record — Instructions — Failure to Bring in Record — Error Predicated on Exception to Tendered Peremptory Instruction Not Considered. — Where the instructions were not in the record on appeal, error, if any, predicated upon a timely exception to a tendered peremptory instruction, could not be considered. p. 194.
9. PLEADING — Complaint — Conclusions — Demurrer or Motion to Require Facts to Be Pleaded Not Filed — Cause of Action Stated. — Where a paragraph of a complaint alleged that plaintiff was being transported in the automobile of the defendant as a guest of the defendant at his special instance, invitation and request, without payment for the transportation, and that defendant was guilty of willful and wanton misconduct in driving the automobile past a stop light and into an intersecting preferential highway with reckless and unlawful disregard of the stop light and the rights of others, including plaintiff, at a reckless, dangerous, unreasonable and imprudent speed of 25 miles per hour, such paragraph was sufficient to state a cause of action, in the absence of an effectual demurrer for want of facts or a motion to require plaintiff to plead the facts necessary to sustain the conclusions alleged. p. 194.
10. AUTOMOBILES — Injuries — Actions — Complaint — Use of Word "Guest" — Effect — Action Not Necessarily Under Guest Statute. — There may be a common-law liability for injuries sustained by a person while he is being transported in an automobile although the injured party is being transported without paying therefor, and the use of the word "guest" in the complaint does not necessarily impel the conclusion that the action was exclusively under the Guest Statute, since the word "guest" has a broad general meaning, as well as a somewhat narrow legal significance as used in the statute. p. 195.
11. AUTOMOBILES — Injuries — Nature and Grounds of Liability — Agent or Servant as Guest of Principal or Master. — An agent or servant acting in the course and scope of his employment might be properly referred to as the guest of his principal or master, with whom he was riding in an automobile. p. 195.
12. PLEADING — Theory — Paragraph of Complaint Proceeding on Two Theories — Failure of Defendant to File Appropriate Pleading — Effect. — A paragraph of complaint should proceed upon a single and definite theory and a defendant has a right to require that it do so, but it is not fatal to an action that the complaint discloses two theories, where no steps were taken by the defendant to confine the pleadings to a single theory or to separate it into distinct paragraphs. p. 196.
13. APPEAL — Record — Instructions — Failure to Bring in Record — Theory of Action Unknown to Reviewing Court. — Where the instructions given in an action for damages for personal injuries were not in the record on appeal, the Supreme Court could not know whether the action was tried upon the theory of common-law negligence or liability under the Guest Statute. p. 196.
14. AUTOMOBILES — Injuries — Actions — Trial — Answers to Interrogatories — Consistency With General Verdict on Theory Action for Common-Law Negligence Was Pleaded. — Where the jury found by its answers to interrogatories that plaintiff was in the employ of the defendant and acting within the course and scope of her employment, that she was riding in defendant's automobile at his special instance, invitation and request, without obligation to pay for her transportation, and that defendant drove into a preferential highway without looking for approaching traffic thereon, although he saw a stop sign and was warned of its presence by plaintiff in time to have stopped before entering the intersection, such findings were consistent with a general verdict for plaintiff on the theory that the second paragraph of her complaint stated a cause of action for common-law negligence. p. 196.
15. TRIAL — Findings of Fact and Conclusions of Law — Items in Findings Ignored as Conclusions. — Findings of the jury that plaintiff was not the defendant's "guest" in an automobile and that defendant "was guilty of willful and wanton misconduct" as charged in a second paragraph of complaint, which stated a cause of action for common-law negligence, could be ignored as conclusions of the jury. p. 197.
16. AUTOMOBILES — Injuries — Actions — Trial — Answers to Interrogatories — Relationship of Passenger as That of Guest — Function of Jury. — In an action by a passenger in an automobile against the driver thereof for damages for injuries sustained as a result of a collision, it was not the function of the jury by its answers to interrogatories to conclude that defendant was not within the protection of the Guest Statute, or that he was guilty of willful and wanton misconduct, and it performed its full duty in that regard when it found the ultimate facts to which the court could apply the law, although, under some circumstances, a finding that one was or was not a guest might be proper as a finding of an ultimate fact. p. 197.
From the Pulaski Circuit Court; Robert E. Thompson, Judge.
Action by Vina Archer against Fred W. Long and Walter W. Laws for damages for personal injuries sustained in a collision between an automobile operated by defendant Long, in which plaintiff was a passenger, and one operated by defendant Laws. From a judgment for plaintiff against defendant Long and in favor of defendant Laws, defendant Long appealed. (Transferred from the Appellate Court under § 4-209, Burns' 1933, § 1364, Baldwin's 1934.)
Affirmed.
Hemphling Smith, of South Bend, for appellant.
Reidelbach Spangler, of Winamac, and Moore Greenwald, of Gary, for appellees.
This appeal resulted from an action for personal injuries brought by the appellee Vina Archer against the appellant Fred W. Long and the appellee Walter Laws. The complaint was in three paragraphs, which are denominated in the record as the amended second, the amended third, and the fourth, but for convenience we shall refer to them, respectively, as the first, second, and third paragraphs.
Hoffman Street extends east and west and Columbia Avenue north and south, intersecting at right angles, in the City of Hammond. By a city ordinance, Hoffman Street was a preferential thoroughfare, and there were appropriate stop signs indicating that fact to those using Columbia Avenue. The appellee Archer was in an automobile operated by appellant Long, which was proceeding south on Columbia Avenue. That car collided in the intersection with one driven east on Hoffman Street by the appellee Laws, resulting in personal injuries to the appellee Archer.
The first paragraph of the complaint alleged that Mrs. Archer was a "passenger" in Long's automobile but that she exercised no management over it or over him; that with willful, wanton, and reckless disregard of the rights of others, and over her request to discontinue and desist, Long drove his automobile into said intersection at a speed which was high and dangerous considering the density of the traffic, the atmospheric conditions, and the location and width of the street and intersection; and that Long drove said automobile into said intersection without stopping, having said automobile under reasonable control, keeping a lookout for approaching traffic on Hoffman Street, or yielding the right of way to such traffic. The first paragraph further charged the appellee Laws with specific acts of negligence in the operation of his automobile, and it was alleged that the plaintiff's injuries resulted from each of the willful, wanton, and reckless acts of Long and each of the negligent and careless acts of Laws.
The second paragraph of complaint was substantially like the first, except that it was charged in the second that the plaintiff occupied the automobile of Long as his "guest," at his special instance, invitation, and request, and without payment for transportation. It was also alleged in the second paragraph that the plaintiff's injuries were caused by the willful, wanton, and reckless acts of Long, and the negligent and careless acts of Laws "jointly operating and concurring together."
The third paragraph was the same as the first, except that it charged that the plaintiff was in the employ of Long and that she was engaged in the performance of the duties of her employment at the time she was injured.
There was a jury trial resulting in a verdict against the appellee Long and in favor of Laws. The jury also answered interrogatories by which it found that the plaintiff was in the employ of Long and that she was acting in the course and scope of her duties as such at the time of the accident; that Long approached and entered the intersection at a speed of approximately thirty (30) miles per hour, without slowing down and without looking for approaching traffic on Hoffman Street, although he was warned of the stop sign by the plaintiff and saw it in time to have stopped before reaching the intersection; and that, in the exercise of reasonable care, Long could have seen the approach of the Laws car in time to have stopped before entering the intersection. The jury also found that Long was guilty of willful and wanton misconduct as charged in the first and second paragraphs of complaint.
The appellant Long addressed a joint demurrer for want of facts to the first and second paragraphs of complaint prior to the adoption of Rule 1-6, 1940 Revision. There was no error 1-4. in overruling this demurrer, unless both paragraphs of the complaint were bad. Dorsett v. The City of Greencastle (1895), 141 Ind. 38, 40 N.E. 131. The ground for the demurrer set out in the memorandum thereto was that the complaint alleged that the plaintiff was the guest of Long; that as a consequence, Long could not be held liable unless he was guilty of wanton and willful misconduct; and that while the allegations were sufficient to charge negligence, they did not constitute wanton and willful misconduct. The first paragraph of the complaint alleged merely that the plaintiff was a "passenger" in Long's car. The statute provides that the owner or operator of an automobile shall not be responsible for injuries to or death of a guest, while being transported without payment therefor, unless such injuries or death were caused by wanton or willful misconduct. Acts 1937, ch. 259, § 1, § 47-1021, Burns' 1940 Replacement, § 11265, Baldwin's Supp. 1937. The use of the term "passenger" in the first paragraph of the complaint, as describing the relationship between the plaintiff and the appellant, does not necessarily imply that the plaintiff was a guest in the contemplation of the statute. In Puckett v. Pailthorpe (1929), 207 Iowa 613, 616, 223 N.W. 254, it was said:
"`"There are two main elements in the legal definition of a passenger: First, an undertaking on the part of the person to travel in the conveyance provided by the carrier; and second, an acceptance by the carrier of the person as a passenger."'"
The term "passenger" ordinarily imports some contractual relation between the parties. Gale v. Wilber (1934), 163 Va. 211, 175 S.E. 739; Bushouse v. Brom (1941), 297 Mich. 616, 298 N.W. 303. We cannot say, as a matter of law, that the first paragraph of complaint alleged that the plaintiff was a guest within the meaning of the statute, but it disclosed the existence of some relationship that imposed upon the appellant the duty to exercise ordinary care toward and with respect to the plaintiff. If the appellant desired the complaint to be made more specific as to the relation of the plaintiff to him he should have moved that this be done. There was no error in overruling the joint demurrer to the first and second paragraphs of complaint.
Before the trial the appellant made a motion to require the plaintiff to elect as between the three paragraphs of complaint the one upon which she would stand. This motion was renewed 5. at the close of the plaintiff's evidence and again after all the evidence was in. The basis of these motions were the same; namely, that the theories of the several paragraphs of complaint were inconsistent with respect to the relationship alleged to have existed between the plaintiff and the appellant, one charging that she was a guest, another that she was a passenger, and the third that she was an employee. All these motions were properly overruled. While inconsistent theories should not be alleged in a single paragraph of complaint, they may be charged in separate and distinct paragraphs, and the plaintiff will not be called upon to make an election between them either before or upon the trial. § 2-1004, Burns' 1933, § 110, Baldwin's 1934; 1 Watson's Works Practice, § 331; Indiana Rolling-Mill Co. v. Livezey (1911), 47 Ind. App. 396, 94 N.E. 732; Wells v. Wildin (1938), 224 Iowa 913, 277 N.W. 308, 115 A.L.R. 169.
Complaint is made of the action of the trial court in overruling the appellant's motion for a directed verdict in his favor, made at the close of the plaintiff's evidence and 6-8. again at the conclusion of all the evidence. The appellant waived the first motion when he offered evidence in his own behalf. Indiana Insurance Co. v. Handlon (1940), 216 Ind. 442, 24 N.E.2d 1003; Baltimore, etc., R.W. Co. v. Conoyer (1898), 149 Ind. 524, 48 N.E. 352, 49 N.E. 452. The alleged error on the overruling of the second motion is not properly presented. Such an error can only be saved by a proper objection to a tendered peremptory instruction. Cook Bernheimer v. Hagedorn (1925), 82 Ind. App. 444, 131 N.E. 788; Rowlett v. Cockrill (1927), 86 Ind. App. 92, 156 N.E. 181. The instructions are not in the record.
Inasmuch as the general verdict for the plaintiff rests solely on the second paragraph of the complaint, we shall notice particularly the allegations thereof and the answers to the 9. interrogatories relating thereto. This paragraph alleged that the plaintiff "was being transported" in the automobile of the defendant "as a guest of said defendant, . . . at the special instance, invitation and request of the defendant, . . . without payment for such transportation." The alleged willful and wanton misconduct of the appellant was that he drove and operated his automobile past a stop light and into an intersecting preferential highway with reckless and unlawful disregard of said stop light and the rights of others, especially the plaintiff, at the reckless, dangerous, unreasonable, and imprudent speed of approximately twenty-five (25) miles per hour. Elsewhere in said paragraph the aforesaid acts of the defendant were charged to have been negligently done.
In the absence of an effectual demurrer for want of facts or a motion to require the plaintiff to plead the facts necessary to sustain the conclusions alleged the second paragraph 10, 11. of complaint must be held sufficient to state a cause of action. The allegations that the plaintiff was in the automobile "at the special instance, invitation and request of said defendant" disclosed a common-law duty on the defendant to exercise ordinary care not to injure the plaintiff. That the plaintiff was being transported "without payment for transportation" and that she was a "guest" are consistent with the theory that the action was under the Guest Statute, but this does not necessarily follow. There may be a common-law liability although the injured party is being transported without paying therefor, and the use of the word "guest" in the complaint does not necessarily impel the conclusion that the action was exclusively under the statute. The word "guest" has a broad general meaning, as well as a somewhat narrow legal significance as used in the statute. It is quite conceivable that an agent or servant acting in the course and scope of his employment might properly be referred to as the guest of his principal or master. Liberty Mutual Ins. Co. v. Stitzle (1942), 220 Ind. 180, 41 N.E.2d 133.
A paragraph of complaint should proceed upon a single and definite theory and a defendant has a right to require that it do so. It is not fatal to an action, however, that the 12, 13. complaint discloses two theories, where no steps were taken by the defendant to confine the pleadings to a single theory or to separate it into distinct paragraphs. City of Evansville v. Maddox (1940), 217 Ind. 39, 25 N.E.2d 321. Since the second paragraph of complaint was good on the theory of common-law negligence, it is unnecessary for us to consider whether it was also sufficient under the Guest Statute. The instructions are not in the record and we cannot know upon what theory the case was tried.
The jury found by its answers to the interrogatories that the plaintiff was in the employ of the appellant and that she was acting in the course and scope of her employment; that she 14. was riding in the defendant's car at his special instance, invitation and request, without obligation to pay for her transportation; and that the defendant drove into a preferential highway without looking for approaching traffic thereon, although he saw a stop sign and was warned of its presence by the plaintiff in time to have stopped before entering said intersection. These findings are consistent with the general verdict in favor of the plaintiff on the theory that the second paragraph of complaint stated a cause of action for common-law negligence.
The findings that the plaintiff was not the defendant's "guest" and that the defendant "was guilty of willful and wanton misconduct" as charged in the second 15, 16. paragraph of complaint, may be ignored as being conclusions of the jury. While, under some circumstances, a finding that one was or was not a guest might be proper as a finding of an ultimate fact, it was not the function of the jury by its answers to the interrogatories to conclude that the defendant was not within the protection of the Guest Statute, or that he was guilty of willful and wanton misconduct. It performed its full duty in that regard when it found the ultimate facts to which the court could apply the law. Board of Commissioners of Huntington v. Bonebrake (1896), 146 Ind. 311, 45 N.E. 470; Tucker Freight Lines, Inc. v. Gross (1941), 109 Ind. App. 454, 33 N.E.2d 353; 1 Gavit's Indiana Pleading and Practice, §§ 109b and 161d.
The judgment is affirmed.
NOTE. — Reported in 46 N.E.2d 818.