Wiley v. Cole

May 12, 1921

Civ. No. 3504.

Reporters:: , ,
Before:: Shaw

SHAW, J.

In this аction plaintiff sought to recover damages alleged to havе been sustained as the result of defendants’ negligence in operating an automobile.

The appeal is from a judgment in favor of defendants which was entered upon plaintiff’s refusal to amend his complаint after an order made by ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the court sustaining a demurrer interposed uрon the ground that the complaint not only failed to state a cause of action but was uncertain.

The allegations of the complaint material to the discussion are: That on or about the tenth day of August, 1919, *618 the defendants above named drove and operated their certain automobile in a southerly direction on that certain public highway known as Grand Avenue, approximately one and one-half milеs south of Buena Park, Orange County, in such a careless, negligent, reckless, wrongful, and unlawful manner that the defendants’ said ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍automobile collided with the automobile of the plaintiff which was then and there being driven in a northеrly direction on said highway, thereby damaging plaintiff’s automobile in the sum of $397.19, being the usual and reasonable charge for making repairs to plаintiff’s automobile made necessary by said collision.

In our opinion, the complaint is not obnoxious to the demurrer upon either ground specified therein.

[1] The argument of respondents is that, while the complaint charges defendants with operating their car in a negligent manner, it is insuffiсient to state a cause of action because it does not state the particular acts constituting the negligence imputed to defendants in the operation of the automobile; in other words, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍dоes not set out evidentiary matter. No principle seems to be better settled in this state’ than that “negligence may be charged in general terms; that is, what was done being stated, it is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent. ” (Smith v. Buttner, 90 Cal. 99, [27 Pac. 29]; Stein v. United Railroads, 159 Cal. 368, [113 Pac. 663]; Bergen v. Tulare County Power Co., 173 Cal. 709, [161 Pac. 269].) [2] Neithеr is the complaint defective in failing to allege facts showing that defendants’ negligence was the proximate cause of the injury. It clearly appears from the allegation that defendants were operating their automobile in a negligent manner, and that by reason оf such negligence their automobile collided with that of plaintiff and thereby caused the injury.

[3] Respondents also argue that, since plaintiff, in addition to the use of the word “negligent,” alleged that defendants’ operation of the automobile was wrongful and unlawful, he should have specified ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍particularly what law was violated and wherein their act was wrongful. No authorities are cited in support of this contention, and we аre unable to perceive any merit therein. Clearly, as shown *619 by the complaint, the action is based upon defendants’ negligent act in оperating their automobile, and the words “careless, reckless, wrongful, and unlawful” are nothing more than other expressions of the allegеd act of negligence, and since their use neither adds to nor their omission detracts from the sufficiency of the complaint, they should, wherе used in this connection, be disregarded as surplusage. If defendants’ act was negligent, it was likewise wrongful and unlawful in that by such negligent act they, without right or warrant of law, caused damage to plaintiff.

The complaint, if true, shоws that defendants were guilty of negligence in operating their automоbile, and that as a result of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍such negligence they caused it to collide with that of plaintiff, which was the proximate cause of the injury complained of.

The court erred in sustaining the demurrer.

The judgment is reversed.

Conrey, P. J., and James, J., concurred.