H. A. REINHARDT, Appellant,
MARY E. R. DOYLE, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Affirmed.
Messrs. Baker & Whitney, for Appellant.
Messrs. Baxter & Carpenter, for Appellee.
[39 Ariz. 319] ROSS, J.
This action was brought by Mary E. R. Doyle against H. A. Reinhardt and another, against whom the action was dismissed, to recover damages to her automobile alleged to have been sustained in a collision caused by the defendant's negligence and carelessness in operating his car. Defendant met the charge with a general denial and a plea of contributory negligence. Upon the issues thus formed, the case was tried before a jury. A verdict was returned against defendant Reinhardt in favor of plaintiff for $298.10, upon which judgment was rendered.
Defendant has appealed assigning as ground therefor that the complaint failed to state facts sufficient to constitute a cause
of action and the absence of competent proof of damages.
It will be noted that defendant did not question sufficiency of the complaint by demurrer, motion, or any other pleading whatsoever. If he believed the complaint insufficient to state a cause of action, he should have raised the question in the manner prescribed by the statute, that is, by demurrer. Section 3776, Rev. Code 1928. Defendant undertook to make the same point by objecting to the introduction of any evidence in support of the complaint, and while this may be done if all the facts pleaded furnish no cause of action, it cannot avail as against a defective statement of a good cause of action. At best, the objection to the introduction of evidence because no cause [39 Ariz. 320] of action is stated amounts to no more than a general demurrer. Any mere defect of form cannot be reached by either.
The complaint, in substance, omitting conclusions, alleges: That, while the plaintiff was driving her automobile at a reasonable and proper speed on a public highway, in an easterly direction and on the right-hand side thereof, she met defendant driving thereon in the opposite direction at a rate of speed to endanger the safety of property, and that the defendant in passing another car going in the same direction drove over the center of the road and on to plaintiff's side, which was not free of on-coming traffic, and collided with her automobile, damaging it.
Section 1592, Revised Code of 1928, makes it the duty of the driver of a motor vehicle to drive on the right half of the road when of sufficient width. Section 1593 provides that the drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving the other at least one-half of the main-traveled portion of the road as nearly as possible. And 1594 prohibits the driver of a vehicle from driving on the left side of the center line of the highway in overtaking and passing another vehicle proceeding in the same direction, unless such left side is clearly visible and is free of on-coming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety.
We think under these provisions of the statute the complaint clearly states a cause of action and that the court properly permitted plaintiff to introduce evidence in support of her complaint.
The damages to plaintiff's automobile were enumerated in the complaint and alleged to be the sum of $400, "the reasonable difference between the market value of said motor vehicle immediately before and immediately after said collision." The only evidence [39 Ariz. 321] of damage was that of the reasonable cost of repairs to the car. Plaintiff, testifying as a witness, was asked the market value of the car before it was damaged, to which she answered, "About fifteen hundred dollars," but, when she was asked its value after the damage, she was not permitted, the defendant objecting, to answer the question, the court saying: "She couldn't tell what it was worth after the accident without knowing what it cost to repair it." After this ruling the plaintiff put upon the witness-stand H. L. Michener, service manager of the Apache Buick Company, who testified that the cost of putting the plaintiff's Buick sedan into the condition it was before the accident was approximately $300. To this witness also was exhibited an itemized bill of the cost of reconditioning the automobile, and he testified that all of the work done and materials furnished were under his supervision and that the charges therefor were reasonable.
It is contended (1) that the reasonable cost of repairs is not the proper measure of damages; and (2) that the itemized bill was not sufficiently identified because the witness did not himself do all the repairs or make the entries. The last objection is not good for the reason that the witness, independent of the itemized bill, testified that the cost of repairs was approximately $300. He also identified the items of work ...