Brown v. Green & Flinn, Inc.

Superior Court of Delaware

Brown v. Green & Flinn, Inc.

100 A. 475, 29 Del. 449, 6 Boyce 449, 1917 Del. LEXIS 18

CourtSuperior Court of Delaware

DecidedMarch 9, 1917

DocketNo. 25

StatusPublished

Cited by6 cases

This text of 100 A. 475 (Brown v. Green & Flinn, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Green & Flinn, Inc., 100 A. 475, 29 Del. 449, 6 Boyce 449, 1917 Del. LEXIS 18 (Del. Ct. App. 1917).

Pincite

Opinion

Boyce, J.:

[1] The averment in the first and second counts is that:

“The said plaintiff, while, then and there, in the exercise of due care and caution on his part, lawfully riding along the said road” (Rockland) “upon a motorcycle, by and through the negligence of the said defendant in permitting its said” (automobile or motor) “truck to be operated upon said road by an unskilled and incompetent servant, as aforesaid, was run into by the said truck and thereby struck with great force,” etc.

The negligent act averred in these two counts is in permitting the motor truck to be operated upon the road by an unskilled, and incompetent servant, and thereby ran the truck into the plaintiff and injured him. It is the opinion of the court that the act of negligence complained of is sufficiently described, it being also alleged that the injury was caused by reason of such negligent act. The counts are good.

[2, 3] The averment in the third count is that:

“The said plaintiff * * * by and through the negligence of the said defendant in permitting its said servant to operate said truck upon said road without a license authorizing him so to do, was run into,” etc.

The act of driving the motor truck without a license is prohibited by statute, and it is held in negligence cases to constitute negligence per se. But the act itself does not constitute actionable negligence. Between the violation of the statute and the injury complained of there must be shown a causal connection or relation. Nothing of this sort is averred in the count, and it is insufficient. Lindsay v. Cecchi, 3 Boyce, 133, 80 Atl. 523, 35 L. R. A. (N. S.) 699. Whether in an action for negligence the owner, or driver, had a license or not, authorizing him to drive the truck, is in itself a vain thing. The vital question is whether the act described was negligently done.

The demurrer is overruled as to the first and second counts, but sustained as to the third.

Free access — add to your briefcase to read the full text and ask questions with AI

Boyce, J.:

[1] The averment in the first and second counts is that:

“The said plaintiff, while, then and there, in the exercise of due care and caution on his part, lawfully riding along the said road” (Rockland) “upon a motorcycle, by and through the negligence of the said defendant in permitting its said” (automobile or motor) “truck to be operated upon said road by an unskilled and incompetent servant, as aforesaid, was run into by the said truck and thereby struck with great force,” etc.

The negligent act averred in these two counts is in permitting the motor truck to be operated upon the road by an unskilled, and incompetent servant, and thereby ran the truck into the plaintiff and injured him. It is the opinion of the court that the act of negligence complained of is sufficiently described, it being also alleged that the injury was caused by reason of such negligent act. The counts are good.

[2, 3] The averment in the third count is that:

“The said plaintiff * * * by and through the negligence of the said defendant in permitting its said servant to operate said truck upon said road without a license authorizing him so to do, was run into,” etc.

The act of driving the motor truck without a license is prohibited by statute, and it is held in negligence cases to constitute negligence per se. But the act itself does not constitute actionable negligence. Between the violation of the statute and the injury complained of there must be shown a causal connection or relation. Nothing of this sort is averred in the count, and it is insufficient. Lindsay v. Cecchi, 3 Boyce, 133, 80 Atl. 523, 35 L. R. A. (N. S.) 699. Whether in an action for negligence the owner, or driver, had a license or not, authorizing him to drive the truck, is in itself a vain thing. The vital question is whether the act described was negligently done.

The demurrer is overruled as to the first and second counts, but sustained as to the third.

William H. Duty, Jr., and Raymond International, Inc. And Peter Kiewitt Sons Company and Tidewater Construction Corporation, a Joint Venture D/B/A Raymond-Kiewitt-Tidewater, Intervening v. East Coast Tender Service, Inc., William H. Duty, Jr., and Raymond International, Inc. And Peter Kiewitt Sons Company and Tidewater Construction Corporation, a Joint Venture D/B/A Raymond-Kiewitt-Tidewater v. East Coast Tender Service, Inc.

660 F.2d 933 (Fourth Circuit, 1981)

Duty v. East Coast Tender Service, Inc.

660 F.2d 933 (Fourth Circuit, 1981)

Beacom v. Fraim

172 A. 447 (Superior Court of Delaware, 1934)

Rounds, Admr. v. Phillips

170 A. 532 (Court of Appeals of Maryland, 1934)

Rocca v. Steinmetz

214 P. 257 (California Court of Appeal, 1923)

Hersman v. County Court of Roane County

102 S.E. 810 (West Virginia Supreme Court, 1920)

Cite This Page — Counsel Stack

Bluebook (online)

100 A. 475, 29 Del. 449, 6 Boyce 449, 1917 Del. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-green-flinn-inc-delsuperct-1917.

Opinion

Related

Cite This Page — Counsel Stack