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Costello v. Cording

Superior Court of Delaware, New Castle County

August 1, 1952

COSTELLO
v.
CORDING.

[47 Del. 323] Motion to dismiss complaint under Superior Court Rule 12(b)(6) on the ground that it fails to state a claim upon which relief can be granted under the provisions of Paragraph 5713 of the Revised Code of Delaware, 1935. (Automobile Guest Statute.)

Page 183

This is a suit for damages for personal injuries alleged to have been sustained as a result of an automobile collision. The plaintiff has alleged in his complaint that on May 7, 1950, at about the hour of 8:30 p. m. he was riding as a guest passenger in the back seat of a 1948 Ford Convertible Coupe, being operated at the time by the defendant on and over the Paper Mill Road approximately one-quarter of a mile west of Newark, Delaware; that the defendant was driving at an excessive rate of [47 Del. 324] speed into a curve in said road at which time he lost control of the automobile causing it to leave the roadway and strike an electrical transformer pole; that said collision was caused by the defendant's willful or wanton disregard of the rights of the plaintiff in the following respects:

(a) He drove at an excessive rate of speed to wit, at the rate of 70 to 85 miles per hour.

(b) He drove into a curve in the road at an excessive rate of speed to it, at the rate of 70 to 85 miles per hour.

(c) With a reckless indifference to the consequences, he consciously and intentionally did not keep his automobile under proper control.

(d) With a reckless indifference to the consequences, he consciously and intentionally did not keep a proper lookout.

The defendant has filed a motion to dismiss the complaint under Superior Court Rule 12(b)(6) on the ground that it fails to state a claim against him upon which relief can be granted under the provisions of our automobile guest statute, being Paragraph 5713 of the Revised Code of Delaware (1935).

The pertinent Superior Court Rule and statute involved are as follows:

Rule 8(a): 'Claims For Relief. A pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim or third-party claim shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which he deems himself entitled. * * *'

Paragraph 5713 of the Revised Code (1935): 'No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a [good] cause of action for damages against such owner or operator for injury, death or loss, in case of accident, [47 Del. 325] unless such accident shall have been intentional on the part of such owner or operator or caused by his wilful or wanton disregard of the rights of others.'

The defendant under his motion contends that the epithetical language employed in the complaint does not enlarge the allegations into willful or wanton disregard of the plaintiff's rights, and, if the complaint is deleted by striking the epithetical language, nothing remains that can be said to be more than ordinary allegations of negligence which do not form the basis for an action under the statute.

The plaintiff contends the motion to dismiss should be denied unless it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim.

Henry van der Goes (of Young & Wood), of Wilmington, for plaintiff.

John S. Walker, of Wilmington, for defendant.

TERRY, Judge.

The meaning of the phrase 'willful or wanton disregard of the rights of others' as used in our guest statute has been defined upon several occasions by the Courts of this State. Gallegher v. Davis & Law, 7 W.W.Harr. 380, 183 A. 620; Tyndall v. Rippon, 5 Terry 458, 61 A.2d 422. Negligence as that term is properly understood in the law is eliminated as a basis of liability. Willful or wanton misconduct under the statute is evidence by a display of conscious indifference to circumstances in the operation of a motor

Page 184

The theory in part in adopting our new rules of civil procedure was to discard the niceties and technicalities of pleading, that theretofore prevailed, by doing away with the troublesome burden of revealing the facts and settling the issues in dispute. These functions are now disposed of by the deposition-discovery procedure and pre-trial hearings. Thus, the underlying purpose of Rule 8(a) is to give to the adverse party a clear indication of the precise nature of the pleader's claim in simple, plain, and understandable language.

[47 Del. 326] The use of epithetical language in a complaint is not prohibited under Rule 8(a) if the complaint in its entirety, including such language, states a claim upon which the pleader is entitled to relief and at the same time gives to the opposing party notice of the precise nature thereof, Cox v. Kroger Co., D.C., 9 F.R.D. 78; and in this respect a complaint which affords a generalized summary of the pleader's case is sufficient.

Under Rule 8(a) the pleader is not required in a statement of claim to narrate facts sufficient to constitute a cause of action, nor is he required to spell out the definite verbiage of the wrongs complained of if the missing elements, or element, follow, or may reasonably be inferred from the facts that are alleged. Hollander v. Davis, 5 Cir.,120 F.2d 131. If the complaint states any claim upon which the pleader might recover, the complaint should not be dismissed without a trial or motion for summary judgment. Dioguardi v. Durning, 2 Cir.,139 F.2d 774. In the present case, therefore, unless it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim, the complaint should not be dismissed. Morgan v. Wells, Del.Ch.1951,80 A.2d 504; Maher v. Voss, Del.Super.1951, 7 Terry ----,84 A.2d 527; U. S. v. County of Cattaraugus, D.C.,67 F.Supp. 294.

The defendant relies strongly upon the case of Tyndall v. Rippon, supra, decided by me after the adoption and promulgation of our new rules of civil procedure in January, 1948. The decision in that case has no direct application to the question to be determined in the present case. True it concerned a motion to dismiss under Superior Court Rule 12(b)(6) an amended complaint filed under Superior Court Rule 8(a) wherein the present guest statute was involved. Although the reported decision does not so indicate, the action in that case, however, was originally brought in 1947, at which time our governing rules of civil procedure were those of the common law. In that case a declaration was filed by the plaintiff. The defendant demurred to the declaration. Richards, J., then sitting, sustained the demurrer[47 Del. 327] and granted to the plaintiff general leave to amend. Subsequent to the time the demurrer was sustained and before the rule day for the filing of the plaintiff's amended declaration, we adopted and promulgated our new rules of civil procedure. The plaintiff instead of amending his declaration in accordance with the common law rules filed an amended complaint under Rule 8(a) of our present rules. The defendant then made a motion to dismiss the complaint under Rule 12(b)(6) of our present rules. Since the case was originally brought under the common law rules and the declaration tested by demur under the principles thereof, it was determined properly to treat the amended complaint and the defendant's motion to dismiss as if they were, in fact, a common law declaration and a demurrer ...


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