Gresh v. Wanamaker
Gresh v. Wanamaker
Opinion of the Court
Opinion by
The judgment from which this appeal was takén was for the defendants on their demurrer to the plaintiff’s statement in an action against them for personal injuries sustained by her through the alleged negligence of one of their servants or employees. No opinion was filed by the court below in sustaining the demurrer, and we cannot,.therefore, tell why it .concluded that the statement did not disclose a cause of action against the appellees.
The original statement was amended and, as amended, was again amended. With three attempts made by the pleader to set forth his client’s alleged cause of action, he ought to have succeeded, if she had one. The crude original statement was
J udgment reversed and defendants directed to plead.
Reference
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- Negligence — Pleadings—Statement of claim — Demurrer. In an action against dealers in automobiles to recover damages for personal injuries, plaintiff in her statement of claim averred that an automobile which she had purchased from the defendants some months before had broken down on the road and could not be operated; that she requested defendants to furnish her a competent machinist and chauffeur to accompany her to the country to repair the broken automobile, and bring it to the city where she lived; that in pursuance of this request defendants furnished a man who went with her to the machine and proceeded to repair it so as to bring it back with her to the city; that the man in repairing the machine and bringing it back to the city had absolute and exclusive charge and control of it for and on behalf of the defendants; that defendants’ duty was to furnish plaintiff a careful and efficient man and one familiar with operating an automobile, but, while they sent her one of their servants, or employees, representing him to be a skilled and thoroughly competent machinist and chauffeur, he was unskilled and incompetent to repair the machine, and negligent, careless and reckless in operating it; that when plaintiff was informed by the said employee that the automobile was repaired, she entered it for the purpose of being taken in it by him tó the city, but he operated it in such an incompetent, negligent and careless manner as to cause it, in a very short time after they started, to be violently overturned and broken, and the plaintiff, who was riding therein, was violently thrown out upon the roadway and' under the machine and seriously and grievously injured. Held, (1) that the statement of claim was sufficient to show a good cause .of action, and was not demurrable; and (2) that it was not necessary for plaintiff to aver in her statement that she had promised to pay the defendants for the services of their employee.