Butler v. Wyman

THE COURT.

An action to recover damages for personal injuries alleged to have resulted from the negligence of defendants.

Plaintiff’s amended complaint alleged, among other things, that on August 23, 1930, ’he was at a certain ranch near Hollister in San Benito County, and “that at said time and place the said H. E. Wyman and the said defendant Charles Hall directed plaintiff to get in and upon a certain Chevrolet truck then and there driven and operated by defendant Joseph Hall, for the purpose of transporting and conveying said plaintiff from said Charles Hall ranch to said town of Hollister”. It was further alleged that plaintiff boarded the truck, whereupon Joseph Hall operated the same in such a grossly negligent manner as to cause injury to plaintiff, and that in so doing defendant last named was the agent and employee of the other defendants, one of whom, namely, Charles Hall, was alleged to have been the owner of the vehicle.

Defendant Wyman filed a general and special demurrer, which was sustained, leave being given to amend. Plaintiff having declined to amend, a judgment dismissing the action as against Wyman was entered. Plaintiff has appealed therefrom and contends that the complaint was sufficient.

The demurrer, among other things, specified that the amended complaint failed to state facts sufficient to constitute a cause of action against demurrant in that it could not be ascertained therefrom “by and under what authority defendant Wyman directed plaintiff to board the truck, or under what duty the plaintiff submitted to the duty alleged”. The demurrer concluded with a paragraph alleging the complaint to be uncertain, unintelligible and ambiguous for the same reasons as stated in other paragraphs thereof.

In ruling upon the demurrer it was the view of the trial court that if plaintiff was an employee of Wyman acting within the scope of his employment at the time "of the injury, his remedy against this defendant would be under the Workmen’s Compensation Act; that the allegation that

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the latter directed him to board the truck made the relationship uncertain, and that this uncertainty should be corrected by an amendment; and the court in so ruling made a reference to the original complaint.