Coulson v. Aberdeen-Springfield Canal Co. , 39 Idaho 320 ( 1924 )

Concurring Specially. — At the close of appellant's testimony respondent made the following motion for nonsuit:

"We move for a nonsuit of this case for the reason that the complaint herein fails to state a cause of action; for the further reason that the proof fails to establish any negligence on the part of the defendant, and there is an entire absence of sufficient or any proof to establish any liability on the part of the defendant; for the further reason that the evidence shows conclusively that the plaintiff herein is guilty of such negligence, if there is any negligence in the case whatever, he is guilty of such negligence — of contributory negligence as will preclude his recovery."

C. S., sec. 6830, specifies the grounds upon which an action may be dismissed or a judgment of nonsuit entered, and the insufficiency of the complaint to state a cause of action is not one of the grounds specified in such statute. (Ludwig v.Ellis, 22 Idaho 475, 126 P. 769; Strong v. Western Union Tel.Co., 18 Idaho 389, 407, Ann. Cas. 1912A, 55, 109 P. 910, 30 L.R.A., N.S., 409.)

The rule is well established that a motion for a nonsuit upon the ground that the proof fails to establish any negligence on the part of the defendant, that there is an entire absence of sufficient proof to establish liability on the part of the defendant, or that the evidence shows conclusively that the plaintiff is guilty of contributory negligence, without specifying wherein the evidence fails to establish any negligence or wherein and in what particular there is an entire absence of sufficient proof to establish liability or in failing to point out in what particulars the plaintiff was guilty of contributory negligence, is too general to be considered and should be overruled. (38 Cyc. 1552, and cases therein cited.) The rule announced by this court in the case ofIdaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 62 P. 925, is in harmony with the rule above stated, wherein this court held: "A motion for a nonsuit must specify particularly the point relied upon for such nonsuit, and thus call the attention of the court and opposing party to the grounds of the motion," the court observing: "The reason of the rule is obvious. If the attention of the court and opposing party is called to the specific point relied upon, opportunity might be then and there given for the removal of the objection relied upon for the nonsuit and the objection removed."

In the case of Barlow v. Salt Lake U. R. Co., 57 Utah, 312,194 P. 665, it is held that:

"A motion for nonsuit should be specific, and a motion stating that the evidence fails to show negligence or carelessness is too general to be considered."

In In re Soale, 31 Cal. App. 144, 159 P. 1065, we find the rule stated as follows:

"Motion for nonsuit, if in general terms, failing to specify any particular defect in the evidence, should be disregarded."

Also, in Security Inv. Co. of San Bernardino v. Bartram,54 Cal. App. 540, 202 P. 337, it is held:

"A motion for a nonsuit on the ground 'that plaintiff has wholly failed to prove his case' is insufficient, as it does not call attention to the particular matters relied on."

It will be observed from a reading of the motion that the statements made therein are mere conclusions and in order for this court to determine the correctness of the conclusions so stated it would be necessary to examine the entire record to ascertain whether the same are correct, and this we are not called upon to do.

The motion for nonsuit should have been overruled for the reasons herein given.