On this appeal, the appellants’ sole contention is that it was improper for the trial court to summarily dismiss appellants’ second cause of action. The question presented is whether the sufficiency of a cause of action alleging rights as a third party beneficiary pursuant to a public works construction contract can properly be tested by a motion to strike. We conclude that a cause of action cannot be tested by a motion to strike.
On the night of January 3, 1966, Ivan Stewart was driving his propane gas delivery truck on Garfield Street in Idaho Falls. The street was undergoing certain construction in that Arrington Construction Company (respondent herein), was installing sewer pipe pursuant to a contract with the City of Idaho Falls. Due to the presence of a trench in the north lane, traffic was forced to use only the south lane for a distance of about 200 yards. Half way down this stretch of road, Stewart encountered a car coming in the opposite direction. Stewart pulled off to his left to let the car pass and as he did so, an outcropping of rock struck certain piping under his truck, knocking it off, and allowing the propane gas to escape. The gas ignited, possibly as a result of contacting the hot exhaust pipe on the truck, and a holocaust ensued in which the truck was destroyed and Stewart badly burned. Stewart died, as a result of these burns, some 17 days later.
Appellants, decedent’s wife and child, brought this action to recover damages for the destruction of the truck and the death of the husband and father. The original complaint stated two causes of action, one in tort and one in contract. By the first count appellants alleged that respondent was negligent in not maintaining proper warning devices for the benefit of the traveling public. The second count, in contract, alleged the same facts concluding that respondent breached its contract with the city by not maintaining proper warning devices and that appellants were third party beneficiaries of that contract.
On a motion to strike made prior to answer, the district court summarily dismissed the second cause of action. The cause proceeded to trial on the tort theory alone. The result was a general verdict in favor of the respondent.
In disposing of this case, we first turn to the procedural question. We feel compelled to discuss the procedure at some length, due to the apparent misunderstanding of the proper motion to test the sufficiency of a complaint. Since our rules of civil procedure are substantially similar to the Federal Rules of Civil Procedure, cases construing the federal rules are persuasive. However, it must be borne in mind that the I.R.C.P. are subject to the interpretation of this court.
I.R.C.P. 12(f) provides:
“Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within [twenty] 20 days after the service of the pleading upon him or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” (emphasis added)
The wording of this rule indicates that a motion to strike is not the proper or authorized method for securing the
dismissal
of a complaint. Note I.R.C.P. 12(b). A 12(f) motion is the proper motion for at
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tacking an insufficient defense. 1948 Notes of the Advisory Committee on Rules for Civil Procedure, 3A Barron and Holtzoff, Federal Practice and Procedure 438 (1958). A motion to strike can be used, with respect to a complaint, only to eliminate unnecessary or objectionable verbage. A complaint or a defense will still stand after a 12(f) attack, stripped only of redundant,
1
immaterial,
2
impertinent,
3
or scandalous
4
matter. Motions to strike will not be granted if the result would render the complaint meaningless. 1A Barron and Holtzoff, Federal Practice and Procedure 469 (1960). Allegations in a complaint which allege one ground of relief will not be stricken upon a motion to strike if the ground is sufficient to claim relief on
any
other ground. American Foods v. Dezauche,
A complaint may be dismissed by a motion made pursuant to I.R.C.P. 12(b). This motion, consisting of several subsections, is essentially divided into two main categories: 12(b) (6) motions and all others. All motions made pursuant to 12(b) must state with particularity the grounds upon which relief is sought. I.R.C.P. 7(b) (1). This is necessary in order that a .complaint not be dismissed prematurely on improper or vague grounds. Both the complaint and the 12(b) motion must be liberally construed so as to do substantial justice. I.R.C.P. 8(f). Doubts should be resolved in favor of the complaint. With the exception of 12(b) (6), “particularity” presents no problem since the remaining subsections are directed to specific insufficiencies.
Subsection (6) of Rule 12(b) presents peculiar problems, since it is couched in rather vague terms. This rule is itself divided into two parts, resulting in two optional approaches to the sufficiency of a claim. The first approach is the true 12(b) (6) procedure. The second approach is the Rule 56 or summary judgment procedure.
Pursuant to the true 12(b) (6) approach, the court does not accept affidavits, but it may consider uncontroverted facts in the pleadings which establish an affirmative defense, such as the statute of frauds. 1A Barron and Holtzoff, Federal Practice and Procedure 303-05. Where other matters are incorporated by reference in the pleadings, the court may properly consider such matters in passing on the motion attacking the pleadings. Henry v. United States Trucking Corp.,
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It is at this point, with the true 12(b) (6) motion, that the distinction must be drawn between “failure to state a claim upon which relief may be granted” and the historical “failure to state a cause of action.” All that 12(b) (6) alone requires by way of a complaint is a generalized statement of facts from which the defendant may frame a responsive pleading; thus, if a bona fide complaint is filed that charges every element necessary to recovery, summary dismissal is not justified. New Home Appliance Center v. Thompson,
The validity of a complaint is more properly tested by the summary judgment procedure of I.R.C.P. 56. The motion to dismiss serves its most useful purpose where from the pleadings and documented proof available no controverted fact issue remains and only questions of law are to.be decided.
When a 12(b) (6) motion is made, supported by affidavits and other materials which the court chooses to consider, the motion is then properly treated as one for summary judgment. I.R.C.P. 12(b) and 56; Rush v. G-K Machinery Co.,
Thus, it is apparent that pursuant to a 12(b) (6) motion, the court has the option to consider only the complaint or to consider the entire record. 2A Moore’s Federal Practice 2256 (2d Ed. 1968). The difference is a test of law as distinguished from a test of facts. Furthermore, the moving party has the option to test the law and reserve a right to test the facts, i. e., by making a 12(b) (6) motion, reserving a Rule 56 motion.
In accord with the foregoing, we hold that dismissal of the second count of appellants’ complaint was improper. Appellants alleged that they had third party beneficiary rights by virtue of the agreement between the contractor and the city. This court has previously ruled that such a right can exist. Davis v. Nelson-Deppe, Inc.,
It is the summary dismissal which requires reversal here, not the denomination as a “motion to strike.” Substance governs, not form. Golaris v. Jewel Tea Co.,
Since this case must be • reversed and remanded for a determination of the manifested intent of the contract between respondent construction company and the City of Idaho Falls making appellants third party beneficiaries, we shall discuss some of the issues which must be considered. I.C. § 1-205. To begin with, the contract itself must express an intent to benefit decedent or appellants. I.C. § 29-102. Absent a manifested intent to the contrary, construction contracts between a contractor and a state or other public body are generally not considered as being for the benefit of third persons. They are for the benefit of the state and the contractor. Davis v. Nelson-Deppe, Inc.,
In order to recover as a third party beneficiary, it is not necessary that the individual be named and identified as an individual although that is usually sufficient; a third party may enforce a contract if he can show he is a member of a limited class for whose benefit it was made. Johnson v. Holmes Tuttle Lincoln-Mercury, Inc.,
Judgment reversed and cause remanded for further proceeding in accordance with the opinion expressed herein. Costs to appellants.
Notes
. Facts which are wholly foreign to the issue, needless repetition of immaterial averments. Burke v. Mesta Mach. Co.,
. Matter having no essential or important relationship to the averments or unnecessary particulars, history and description, or allegations which have previously been eliminated by way of summary judgment. Burke v. Mesta Mach. Co., supra; County of Bonneville v. United Bonding Ins. Co.,
. Statements which do not pertain and are not necessary to the issues in question. Schenley Distillers Corp. v. Renken,
. Unnecessary matter or facts derogatory to a person referred to in the pleading. Hughes v. Kaiser Jeep Corp.,
. At this point it is worthwhile to note that in pleading a contract it is possible to incorporate the contract by reference. Furthermore, it is desirable, but not mandatory, to attach a copy of the contract to the complaint as an exhibit. Note Form 12 of the Federal Forms.
. “A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.”