*1 VOSSLER, Sr., Minor, By David William Through His Next Best Friend and Kin, Father, Vossler, Appel- His Frank (Plaintiff lant below), PETERSON, Appellee
Delbert (Defendant below). Court Ross, Cheyenne,
Vincent A. for appel- lant. Godfrey, Cheyenne,
Paul B. and PAR- KER, McEWAN, Mr. PARKER delivered the damage Defendant’s motion to dismiss a second amended ground it failed to state a claim upon which relief might granted court, by the plaintiff sustained trial appealed. has Germane to the are action, complaints two arguments in the challenging trial court them, instance, disposition and the in each metamorphosis all of which disclose the litigation up point. original complaint The recited that both David William Vossler Sandra Vos- sler were the defendant and “Sandra of de- herein, during fendant the course of her employment, did drive motor vehicle in a careless and reckless manner driving causing the motor vehicle she was Plaintiff, to run into and injuring Plain- According tiff.” to memoranda in the record, Wyoming defendant contended that recognized the fellow-servant doctrine in & Platinum *2 394 Co., 873-874, supra, an amended 123 P. Platinum filed asserting essentially before saying: “ allegations, but with several additional * ** a statute in the absence of using wording the identical some otherwise, master not providing Engen opinion: damages for an for liable in an action day May, through “4. That on the 5th employé occurring to
injury Wright and to dismiss. part of defendant. Procedure: Civil § built-in defense holding, provides could be an affirmative & failed to state However, followed face exceptions Although the order *jí that there [*] negligence of a mere [*] we that granted because does » to that Leggett assume contention that Miller, Federal Practice and that doctrine. “injury not disclose defense; was no Engen complaint containing a vulnerable claim on the court Rule 1226, p. responsibility of dismissal F.2d Montgomery and fellow servant” it showed 8(c), a basis fellow servant 436, 439; which relief to agreed recognized W.R.C.P., generally a motion pleading for the (1969). on the which Ward with with which said tiff pose of “5. mie that the the Defendant at said time knew that tor vehicles into ances, ligent said motor vehicle would would not Defendant into town for Plaintiff herein was not tiff the Defendant herein directed the Company machinery That County, Wyoming to take said motor reasonably in J. tools taking motor failing the Defendant herein was in the for the start, to repair. and/or work kept dying defective motor vehicles City town to furnish to the Plain- safe reasonably employed for the purpose to and failed to Tyrrell machinery, Cheyenne, repair vehicle, not out; repair; safe taking equipment Chevrolet start and that the nor was repair. Plain- which appli- Lara- keep neg- pur- that mo- Defendant, day with the “6. That the 5th rule to be consistent seems Such a May, as re- directed the Plaintiff and holdings earlier cases specific take said motor ve- Sandra Vossler to gards fellow-servant doctrine: City Cheyenne hicle into the for the “ * * * the plaintiff’s If necessary knowing repairs, the same to that was allegations show defective, and Defendant of a fellow em- caused knew Sandra was incom- sufficient, assuming ployee, qualified cope petent and not to with the the fel- existence problems might in taking arise rule, they show fur- unless low servant town, said motor into De- vehicle and employee was the that such fellow ther employ competent to fendant failed and employer vice representative of the —a employees sufficient with whom Plain- servant principal fellow —and tiff William David Sr. to to exercise care employer failed that the work. of an employment prudence servant, failed to “7. That Defendant estab- incompetent the reten- fellow any rules for lish and enforce reasonable after the him in service tion of regulation of his his in- the safe conduct should have known knew or business, e., i. such as take defective Master and competence.” 53 Am.Jur.2d keep town and to motor vehicles into p. Servant reasonably repair. safe plaintiff acceded to the dis- any event In duty to the Defendant had the attempt to state “8. That an obvious missal reasonably Plaintiff with place the claim within furnish the would criteria which machinery, appliances, tools and rule an- safe exception to the fellow-servant keep same in place work and & nounced litigants arguments of compe- briefs and both here repair, employ reasonably safe that in the contest over both the disclose employees whom and sufficient tent work, and the second amended com enforce reason- to establish and regu- only real raised was the plaints conduct issue for the able rules safe business, person bring of a an action tort and that lation of his *3 the for an against above occa negligent performance of the by spouse, parties assuming his perform the the sioned named duties and failure govern propriety principle liable either alone of the Defendant is of one negligence situation such as the before us. The concurrently with or question liability du- here—the of the em performing the performed by ployer not heretofore been raised should have been ties that —has and elsewhere there is this the Defendant.” unanimity of opinion although stated complaint Against this amended Annotation, 677, 689: A.L.R.3d authority of that on the argued defendant majority of the cases the “In a courts McKinney, 59 McKinney v. held employ- or that an have prohibited from plaintiff was P.2d employee’s is liable his wife for er against his bringing in tort by injury caused was misconceived spouse. This contention acting scope while within husband defendant’s erro it was based on since employment, though even the em- that “the Amended Com neous statement personally from ployee immune suit Vossler is plaint alleges Sandra J. his wife.” allega no such Plaintiff” when wife so, think that the answer to a serious trial We been Even had made. tion nature, question one of first im- predicate its court was entitled to it, including in this merited a pression jurisdiction, fac- upon entire matter before background presentation and a tual of au- and statements of counsel.1 the admissions depth, thorities both which were lack- that San in this instance disclosed ing here. was in fact wife dra plaintiff.2 further pro- The cause is remanded for ceedings. attempted to meet defend Plaintiff and remanded. Reversed by filing a sec last raised objection
ant’s ond almost identical McEWAN, except (concurring). one addition single stated paragraph wherein was majority The statement made in the insurance, had carried
that defendant
present
opinion that the members of the
opinion
concurring
which a
circumstance
not agree
court do
that if the defendant
McKinney case,
P.2d at
possible
carried insurance it could be a
factor,
possible
be a
dicta with
indicated to
factor,
concurring opin-
as set forth in the
present
do
members of the
court
which the
McKinney
ion
At this
I
case.
time
agree.
agree
disagree
know if
do not
I
argu
McKinney concurring
the comments in the
The burden of
therefore,
I,
as
ments in the trial court
well as
reserve
D.Nev.,
Cavanaugh
McKenzie,
fellow-employee
1.
F.
v.
Insofar
doc-
Supp. 555, 557, affirmed, Cavanaugh
judged
concerned,
pleading,
v.
trine
Long,
Cir.,
959;
applicable
United
252 F.2d
the liberal
standards
Machinery Corporation
interpretation
patterned
rules
States Hoffman
after
W.D.Mo.,
F.Supp.
Richa,
courts,
a claim
those of the federal
stated
appeal
by stipulation,
granted.
on which relief could
Miller,
Wright
; 5
versa, in- liability if there insurance protect
demnity party sued. *4 Lynn PARSONS, minor,
Penny next a guardian, Shirley Parsons, friend Appellant (Plaintiffs below), JOW, doing
Lew L. business as The Teak Lounge, Appellee (Defendant below). Court of Rawlins, Keldsen, appellant.
K. W. Rooney & Horis- Horiskey, of James key, Cheyenne, PARK- ER, McEWAN delivered McINTYRE Chief Justice minor, Appellant, sought to state a bar, against appellee, claim owner of a theory that of the bar liquor intoxicating owner sold to Lee McCall, minor; that McCall be- another liquor and while came intoxicated on the liquor drove under the influence of such manner; negligent as a in a automobile result which McCall collided with causing bodily injuries building school passenger guest plaintiff, who was vehicle. McCall defendant, the district motion On plaintiff’s complaint court