Wiley v. Cole

SHAW, J.

In this action plaintiff sought to recover damages alleged to have 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 complaint after an order made by the court sustaining a demurrer interposed upon 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 miles 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 northerly 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 plaintiff’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 insufficient 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, does 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,