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Kauffroath v. Wilbur

Supreme Court of Arizona

October 14, 1947

KAUFFROATH
v.
WILBUR

Appeal from Superior Court, Maricopa County; T. E. Allyn, Judge.

Judgment affirmed.

V. L. Hash, of Phoenix, for appellant.

Baker and Whitney, of Phoenix, for appellee.

Udall, Justice. Stanford, C. J., and LaPrade, J., concur.

OPINION

Udall, Justice.

[66 Ariz. 154] Joseph H. Wilbur, plaintiff (appellee), instituted this tort action against defendant (appellant) I. W. Kauffroath, seeking

Page 523

damages in the overall sum of $ 1,250. These, plaintiff alleged, arose out of injuries to his person and his motorcycle resulting from a collision with defendant's automobile on the afternoon of August 7, 1945, at a point some four miles east of Phoenix, the intersection of Delano Avenue and East Washington Street.

Plaintiff's complaint contains only a general allegation of negligence set out as follows: "* * * defendant * * * so negligently operated said automobile as to cause the plaintiff and his motorcycle to be thrown to the street and into violent collision with the automobile operated by defendant * * *". In his amended answer, defendant denied that he was negligent claiming the accident to be either entirely the fault of the plaintiff, or that plaintiff was at least guilty of contributory negligence such as would bar his recovery here. Defendant also filed a cross complaint seeking $ 275 to cover damage to his car in answer to which plaintiff denied all responsibility therefor.

At the close of plaintiff's case and again when all the evidence was in, defendant moved for a directed verdict upon the sole ground that the complaint failed to charge him with any act of negligence. Both of these motions were denied and the jury returned a unanimous verdict for plaintiff assessing his damages at $ 250 and denying defendant any relief upon his cross complaint. The court entered judgment in accordance with the verdict and later denied defendant's motion for a new trial. It is from the judgment and order that this appeal is taken. We are limited in our review of the record to the eight assignments of error relied upon by defendant.

At the outset, there is no merit to defendant's first assignment in which he attacks the court's failure to direct a verdict for the reason that the complaint did not state a cause of action in negligence. Under the Federal Rules of Civil Procedure, rule 8(a), (e) (1), 28 U.S.C.A. following section 723c, adopted by this State with but slight change not here applicable, it is provided that:

"A pleading which sets forth a claim for relief * * * shall contain * * * (2) a short and plain statement of the claim showing that the pleader is entitled to relief * * *". Rule 8(a), Sec. 21-404, A.C.A.1939.

"Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required." ...


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