DocketNumber: No. 1211.
Citation Numbers: 150 So. 38
Judges: LE BLANC, Judge.
Filed Date: 10/5/1933
Status: Precedential
Modified Date: 1/11/2023
Plaintiff appeals from a judgment in the lower court under which his suit was dismissed on an exception of vagueness.
The court had sustained the exception to the petition as originally drawn, but had allowed plaintiff ten days in which to amend. A supplemental petition alleging many facts in greater detail was then filed, but on motion of defendants to dismiss on the ground that *Page 39 the original petition had not been amended in every particular as ordered, the court rendered judgment dismissing plaintiff's demands as in case of nonsuit.
It seems almost paradoxical that a petition ten pages long together with a supplemental petition of two pages, the two comprising sixty separately numbered paragraphs, should be dismissed on an exception of vagueness. And yet that is just what occurred in this damage suit, which appears to be one arising out of the usual and ordinary street intersection collision between two automobiles.
To the original petition defendants pleaded vagueness in eight different particulars. In the ruling on this first exception the order of court itself does not specify in which of these the plaintiff was to amend. We presume, however, that it was with respect to all of the complaints, as we find that plaintiff did amend in seven instances, and yet defendants succeeded in having the suit dismissed on plaintiff's refusal to further amend.
From brief of counsel for defendants, appellees, we learn that their remaining complaint against the petition and supplemental petition is that they fail to allege the place where either of the automobiles was struck, how far the car of the principal defendant Silvio was from the intersection when the plaintiff, after stopping his car, started into the intersection, the rate of speed at which plaintiff was proceeding, the point in the intersection where the impact took place, and the location of the cars at the time of the accident, and also that they fail to allege with sufficient certainty how far north in the intersection was the Silvio car when plaintiff proceeded to enter it; the allegation being merely an approximation of between 100 and 300 feet.
With respect to the place where each automobile was struck by the impact, the exact location in the intersection where the impact took place, and the location of the cars after the accident, it strikes us that these are all matters of an evidentiary nature, and the rule of pleading as we understand it is that a plaintiff does not have to set out in his petition all the evidence in support of his demand. "A litigant is not required to make any allegation touching the evidence by which his case is to be supported. He need only allege his cause of action. C. P. art. 172. The evidence by which he is to establish it is an entirely different thing. The laying of a predicate for the admission of secondary evidence is a matter of evidence, not of pleading." Gaiennie v. Druilhet,
With regard to the defendant's complaint that the petition does not state the rate of speed at which plaintiff's car was proceeding, we believe that a sufficient answer is found in paragraph 9 of plaintiff's original petition, wherein he alleges that before entering the intersection he brought his car to a stop and had looked up and down the intersecting streets to see whether it was safe for him to drive across. He then makes allegations to the effect that the Silvio car was sufficiently far enough from the intersection to justify him in the belief that it was safe for him to venture across, all of which allegations, if true, would indicate that he was free of contributory negligence. An automobile starting across a street from a full stop could not, in our opinion, be moving at a rapid rate of speed while still in the intersection. We are of the opinion that the facts and circumstances stated made it unnecessary for the plaintiff to have alleged specifically the rate of speed at which he was going as he went across the street.
Lastly, we take up the complaint that the petition does not state with enough certainty how far north of the intersection the Silvio car was when plaintiff proceeded to enter it. In connection with this complaint, we think it sufficient to state that in the original petition plaintiff alleges that as he looked up and down the street after stopping his car at the intersection, the Silvio car was coming in a southerly direction a "considerable distance" north of the intersection. In his supplemental petition he alleges "that as well as he was able to judge" when he was about to enter the intersection, Silvio's automobile was "approximately between one hundred feet and three hundred feet north of said *Page 40 intersection." We believe that here the plaintiff has made a fair and honest statement of what he takes to be the facts on which he intends to prove negligence against the defendant Silvio. We think it is next to impossible for any one looking at an automobile coming from his right or left side to state with positiveness the number of feet it is distant from him at any given time. We believe that the distance has been stated with suffieient accuracy by the plaintiff here to save his suit from dismissal on the ground of vagueness.
Among other requirements, article 172 of the Code of Practice provides that "the petition must contain a clear and concise statement of the object of the demand, as well as of the nature of the title, or the cause of action on which it is founded." We do not know whether we should use the term "concise" in referring to the statement contained in both the petitions in this case, but we are of the opinion that it is clear and that the cause of action on which the demand is founded is satisfactorily stated.
The judgment of the lower court improperly dismissed plaintiff's suit, and we have concluded that it should be reversed.
For the reasons herein given, it is ordered that the judgment appealed from be, and the same is hereby, set aside, avoided, and reversed, and it is further ordered that the exception of vagueness herein be, and the same is hereby, overruled, and that this case be remanded to the district court to be further tried according to law. Defendants and appellees to pay all costs so far incurred.