Wasilchak v. National Biscuit Co.

This is an action in trespass brought in behalf of a minor by a guardian to recover damages for personal injuries as a result of a collision between two motor vehicles. Defendant has *532taken a rule to show cause why a more specific statement of claim should not be filed; among the grounds alleged for the rule are the following:

(a) That plaintiff fails to give the name of the owner of the Chevrolet automobile which was driven by the minor at the time of the accident.

We are of the opinion that the name of the owner of the Chevrolet automobile is not necessary to be set forth in plaintiff’s statement of claim as the same is merely evidence and has no place in a pleading.

(b) Defendant alleges that plaintiff has failed to set forth relationship, if any, of plaintiff to the minor plaintiff or in what manner the said Steve Demich became guardian of the minor, whether by appointment or will, and if by either of these methods the statement fails to contain a reference to the record of such appointment.

It is not necessary to set forth the manner of the appointment of the guardian in the first instance in plaintiff’s statement. The appointment of the guardian in the instant case is in accordance with the practice set forth in the Rules of Civil Procedure adopted by the Supreme Court. Should the occasion arise after recovery of a judgment by plaintiff against defendant, the courts are always open to protect defendant against payment to an improper guardian of the minor plaintiff. At the present time it does not lie in the mouth of defendant to challenge the averment as to the appointment of a guardian.

(c) As to the failure to set forth the items of damages incurred by plaintiff in the statement of claim.

The court is not impressed with the reasons set forth as the greater portion of the damages alleged in plaintiffs’ statement will be incurred in the future and the same is incapable of itemization. The statement discloses a sufficient cause of action set forth with sufficient certainty to enable defendant to prepare a defense.

Now, January 20,1941, rule for a more specific statement is discharged.