GIBSON, J.
This action was commenced in the district court of Tulsa county by defendant in error, hereinafter referred to as plaintiff, against plaintiff in error, hereinafter referred to as defendant, to recover' damages for personal injuries sustained as a result of an automobile collision.
According to the allegations of the petition, the collision occurred on Highway No. 66, northeast of the city of Bristow, when plaintiff attempted to drive her automobile to the left around another car-parked on her side of the pavement; that, in so doing, plaintiff’s car collided with the defendant’s car, which was coming from the opposite direction, resulting in serious injury to plaintiff. Plaintiff alleges negligence on (he part of defendant as follows;
“(a) That the agent and servant of this defendant was driving the said Buick automobile of the defendant at a high, dangerous and reckless rate of speed in violation of the statutes of the State of Oklahoma, to wit: More then 60 miles an hour.
“(b) That the defendant’s agent and servant then and there driving said automobile in the course of his employment by this defendant, was guilty of negligence and carelessness in that he was failing to keep and maintain a proper lookout for persons or automobiles, including the automobile being driven by this plaintiff upon said highway, and failed and neglected to observe either car upon said highway, and the conditions created by the car parked on the south side thereof. * * *
“(d) Plaintiff, pleading in the alternative, alleges that if the defendant’s agent and servant was keeping and maintaining a proper lookout approaching the point of said accident on said highway, he was guilty of negligence in that he failed and neg'ected to check the speed of said automobile, or stop said automobile after discovering the perilous position of said automobile which was passing to the left of said parked automobile on the south side of said pavement.
“(e) That as a direct and proximate result of the acts of negligence and carelessness herein alleged,. this plaintiff sustained the following injuries; * * *”
Verdict .and judgment were for plaintiff, and the defendant has appealed, assigning numerous errors.
The errors comp’ained of are presented under four propositions; the first is as follows :
“The theories of liability for prior negligence and negligence under the last clear chance doctrine are fundamentally inconsistent.
“(1) The petition failed to state a cause of action. '(Errors 1, 2, 4, 6, 8, 15, and 45.1
“(2) The motion to require election should have been sustained. (Errors 3, 5, 7, and 45.)
“(3) Submission of both theories prevented a -(rial of the facts. (Errors 3, 5, 7, 15, 16, 24, 30, 37, 38, 39, 40, 41, 43, 44, and 45.)”
It is called to our attention that recovery is sought in paragraphs “a” and “b” on the theory of neg’igence in excessive speed and failure to observe plaintiff, and
in paragraph “d” on the theory of last clear chance or failure to avoid the collision after discovery of plaintiff’s peril. Defendant contends that the basic elements and proof necessary to support recovery upon one iheory conflict with, rebut, or disprove’ those of the other theory, and therefore said theories are inconsislent and cannot be asserted or mantained together upon a single state of facts. In this connection it is said that under the prior negligence theory the legal duty devolving upon defendant was:
(1) To
drive at such speed as to be able to avoid collision with plaintiff; (2) to observe or discover plaintiff and thus be able to prevent collision. That a breach of such duty was: (1) driving at such speed as to be unable to avoid the collision; (2) failure to discover plaintiff, and therefore inabilify to avoid the collision. That the proximate cause of injury was: (1) Excessive speed; (2) failure to discover plaintiff.
It is further stated that under the last clear chance theory defendant’s legal duty was to avoid collision after timely discovery of plaintiff’s peril, and that a breach of that duty was the timely discovery of plaintiff but failure to avoid collision, and that the proximate cause of injury was defendant’s failure to avoid collision after timely discovery of plain'iff’s peril.
Defendant argues that as
to
speed, under the prior negligence theory, it was necessary to prove facts raising the duty on the part of defendant to drive at such speed as to be able to avoid the collision'; as to the last clear chance, it was necessary to prove facts showing that defendant did drive at such speed as to be able to avoid the collision, and that proof of the latter duty destroys the basis of breach of the former duty. It is further said that the total repugnancy of the two theories is made apparent in the inconsistency of the proof required to estabhsh breach of duty under the two theories. Under the one, it was necessary io prove that yie-fendant drove at such speed as to be unable to avoid collision. Under the other, it was necessary to prove that defendant drove at such speed as to be able to avoid the collision. And, plaintiff says, further repugnancy is shown in that the nonexis-. tence of contributory negligence on plain' tiff’s part was essential on the question of proximate cause under the excessive speed theory, while under the last clear chance theory the existence of contributory negligence upon which plaintiff’s peril arose was assumed in order to apply the doctrine. This argument is based upon the assumption that the petition contains allegations sufficient to support the two theories named. It is contended that the facts alleged and implied are so inconsistent as to be self-refuting and insufficient as a basis of any liability, and, in this respect, failed to state a cause of action.
In seeking redress for her injury, plaintiff has attempted to pursue two distinct remedies. In so doing she has stated two causes of action, each based upon different alleged negligent acts of ' the defendant. The fact that the allegations were in the alternative, and the counts not numbered, makes them nonetheless a statement of two causes of action. Gallemore v. Buzzard, 98 Okla. 104, 224 P. 293. Each count looks, to the same recovery. If either count stated a cause of action, the petition was good as against a general demurrer based upon inconsistency of the allegations of the different counts. Roxana Pet. Co. v. Covington State Bank, 98 Okla. 266, 225 P. 375, 35 A. L. R. 774. In that case it was held that a plaintiff may not be denied a trial on his primary cause of action, although the allegations of the separate counts may be so inconsistent as to be mutually totally destructive of the cause of action stated in each count. 'But this holding was limited more or less to the allegations of inconsistent facts peculiarly within the knowledge of the defendant. This court has never held that the allegations of separate counts, although wholly repugnant to and mutually destructive of each other, render the entire petition fatally defective when challenged by general demurrer.
Free access — add to your briefcase to read the full text and ask questions with AI
GIBSON, J.
This action was commenced in the district court of Tulsa county by defendant in error, hereinafter referred to as plaintiff, against plaintiff in error, hereinafter referred to as defendant, to recover' damages for personal injuries sustained as a result of an automobile collision.
According to the allegations of the petition, the collision occurred on Highway No. 66, northeast of the city of Bristow, when plaintiff attempted to drive her automobile to the left around another car-parked on her side of the pavement; that, in so doing, plaintiff’s car collided with the defendant’s car, which was coming from the opposite direction, resulting in serious injury to plaintiff. Plaintiff alleges negligence on (he part of defendant as follows;
“(a) That the agent and servant of this defendant was driving the said Buick automobile of the defendant at a high, dangerous and reckless rate of speed in violation of the statutes of the State of Oklahoma, to wit: More then 60 miles an hour.
“(b) That the defendant’s agent and servant then and there driving said automobile in the course of his employment by this defendant, was guilty of negligence and carelessness in that he was failing to keep and maintain a proper lookout for persons or automobiles, including the automobile being driven by this plaintiff upon said highway, and failed and neglected to observe either car upon said highway, and the conditions created by the car parked on the south side thereof. * * *
“(d) Plaintiff, pleading in the alternative, alleges that if the defendant’s agent and servant was keeping and maintaining a proper lookout approaching the point of said accident on said highway, he was guilty of negligence in that he failed and neg'ected to check the speed of said automobile, or stop said automobile after discovering the perilous position of said automobile which was passing to the left of said parked automobile on the south side of said pavement.
“(e) That as a direct and proximate result of the acts of negligence and carelessness herein alleged,. this plaintiff sustained the following injuries; * * *”
Verdict .and judgment were for plaintiff, and the defendant has appealed, assigning numerous errors.
The errors comp’ained of are presented under four propositions; the first is as follows :
“The theories of liability for prior negligence and negligence under the last clear chance doctrine are fundamentally inconsistent.
“(1) The petition failed to state a cause of action. '(Errors 1, 2, 4, 6, 8, 15, and 45.1
“(2) The motion to require election should have been sustained. (Errors 3, 5, 7, and 45.)
“(3) Submission of both theories prevented a -(rial of the facts. (Errors 3, 5, 7, 15, 16, 24, 30, 37, 38, 39, 40, 41, 43, 44, and 45.)”
It is called to our attention that recovery is sought in paragraphs “a” and “b” on the theory of neg’igence in excessive speed and failure to observe plaintiff, and
in paragraph “d” on the theory of last clear chance or failure to avoid the collision after discovery of plaintiff’s peril. Defendant contends that the basic elements and proof necessary to support recovery upon one iheory conflict with, rebut, or disprove’ those of the other theory, and therefore said theories are inconsislent and cannot be asserted or mantained together upon a single state of facts. In this connection it is said that under the prior negligence theory the legal duty devolving upon defendant was:
(1) To
drive at such speed as to be able to avoid collision with plaintiff; (2) to observe or discover plaintiff and thus be able to prevent collision. That a breach of such duty was: (1) driving at such speed as to be unable to avoid the collision; (2) failure to discover plaintiff, and therefore inabilify to avoid the collision. That the proximate cause of injury was: (1) Excessive speed; (2) failure to discover plaintiff.
It is further stated that under the last clear chance theory defendant’s legal duty was to avoid collision after timely discovery of plaintiff’s peril, and that a breach of that duty was the timely discovery of plaintiff but failure to avoid collision, and that the proximate cause of injury was defendant’s failure to avoid collision after timely discovery of plain'iff’s peril.
Defendant argues that as
to
speed, under the prior negligence theory, it was necessary to prove facts raising the duty on the part of defendant to drive at such speed as to be able to avoid the collision'; as to the last clear chance, it was necessary to prove facts showing that defendant did drive at such speed as to be able to avoid the collision, and that proof of the latter duty destroys the basis of breach of the former duty. It is further said that the total repugnancy of the two theories is made apparent in the inconsistency of the proof required to estabhsh breach of duty under the two theories. Under the one, it was necessary io prove that yie-fendant drove at such speed as to be unable to avoid collision. Under the other, it was necessary to prove that defendant drove at such speed as to be able to avoid the collision. And, plaintiff says, further repugnancy is shown in that the nonexis-. tence of contributory negligence on plain' tiff’s part was essential on the question of proximate cause under the excessive speed theory, while under the last clear chance theory the existence of contributory negligence upon which plaintiff’s peril arose was assumed in order to apply the doctrine. This argument is based upon the assumption that the petition contains allegations sufficient to support the two theories named. It is contended that the facts alleged and implied are so inconsistent as to be self-refuting and insufficient as a basis of any liability, and, in this respect, failed to state a cause of action.
In seeking redress for her injury, plaintiff has attempted to pursue two distinct remedies. In so doing she has stated two causes of action, each based upon different alleged negligent acts of ' the defendant. The fact that the allegations were in the alternative, and the counts not numbered, makes them nonetheless a statement of two causes of action. Gallemore v. Buzzard, 98 Okla. 104, 224 P. 293. Each count looks, to the same recovery. If either count stated a cause of action, the petition was good as against a general demurrer based upon inconsistency of the allegations of the different counts. Roxana Pet. Co. v. Covington State Bank, 98 Okla. 266, 225 P. 375, 35 A. L. R. 774. In that case it was held that a plaintiff may not be denied a trial on his primary cause of action, although the allegations of the separate counts may be so inconsistent as to be mutually totally destructive of the cause of action stated in each count. 'But this holding was limited more or less to the allegations of inconsistent facts peculiarly within the knowledge of the defendant. This court has never held that the allegations of separate counts, although wholly repugnant to and mutually destructive of each other, render the entire petition fatally defective when challenged by general demurrer.
We think the correct view of this matter, as being more in conformity with the prior decisions of this court, is that where any one count of a petition, taken alone, states sufficient grounds to entitle plaintiff to relief, the petition should be sustained as against a general demurrer. Where the separate counts are inconsistent with, and repugnant to, each other, an election may be required, as stated in Roxana Petroleum Co. v. Covington State Bank, supra. In that case it was held as follows:
“In such case, after issues have been joined, the court will confine the proof to the issues, or, in a proper case, require an election.”
Pleading in the alternative is ordinarily not favored. Several acts of negligence causing the same injury may be pleaded in the conjunctive; but to plead them in the
alternative destroys certainty in pleading (Benelli v. A., T. & S. F. Ry. Co. (Kan.) 243 P. 1004, citing 31 Oyc. 74; 6 Encyc. P. & P. 268; 21 R. C. L. 47). However, alternative pleading is permitted in furtherance of justice, and such pleading is not subject to demurrer on that ground. Garfield Oil Co. v. Crews, 134 Okla. 229, 273 P. 228.
In view of the foregoing, we are of the opinion that the overruling of the general demurrer to the petition was not error.
Although plaintiff’s petition was good as against a general demurrer, defendant’s motion to require an election properly presented the question of inconsistency or re-pugnancy of the allegations in the separate counts. Were the remedies pursued by plaintiff inconsistent and repugnant, or were they cumulative, conjunctive, and consistent? The general rule is that a suitor is not permitted to invoke the aid of the courts upon contradictory principles or theories based upon one and the same set of facts. In such case the pleader is put to his election. 20 C. J. 5; Brown v. Folsom, 94 Okla. 286, 222 P. 246.
In Electrical Research Products Co. v. Hanitotis Bros., 170 Okla. 144, 39 P. (2d) 36, it was said: “When there is one re-dressible wrong, the suitor will not be permitted to choose more than one enforceable remedy.” To the same effect is Lester v. Fields, 171 Okla. 442, 43 P. (2d) 87.
What remedies are so inconsistent with each other as to require an election between them is a matter to be determined by the facts of each case. No arbitrary rule can be announced as a decisive test for all eases. To make them inconsistent, one remedy must allege what the other denies, or the allegations in one must necessarily repudiate or be repugnant to the other. 20 C. J. 9. A determination of the question lies within the sound legal discretion of the trial court. 49 C. J. 748, see. 1048: Mellon v. Fulton, 22 Okla. 636, 98 P. 911; 19 L. R. A. (N. S.) 960.
It appears that a large majority, if not all, of the decisions of this eourt involving this question base the right of a party to pursue inconsistent remedies upon the fact or assumption that there exists on the part of the plaintiff more or less uncertainty as to bis proper grounds of recovery. Mellon v. Fulton, supra; Harris v. Warren-Smith Hdw. Co., 44 Okla. 477, 144 P. 1050; Carter Oil Co. v. Garr, 73 Okla. 28, 174 P. 498. This is especially true where the facts pleaded by plaintiff are peculiarly within the knowledge of defendant and ascertainable by plaintiff only upon proof. Roxana Petroleum Co. v. Covington State Bank, supra.
Under plaintiff’s first count, if she were guilty of con tribu lory negligence, she could not recover. In the second, although admittedly guilty of contributory negligence, she may yet recover on the theory that her negligence was only the remote, and not the proximate, cause of the injury. The doctrine of the last clear chance presupposes negligence on the part of the party pleading it. 45 C. J. 988. By resorting to that doctrine, the plaintiff has acknowledged her own negligence in placing herself in a position of peril. Its very purpose is to provide a remedy for a party, who has himself been guilty of contributory negligence, against the wanton or willful negligence of one who may have avoided the injury by the exercise of reasonable care after his discovery of the injured party’s negligent act. In the case of Atchison, T. & S. F. Ry. Co. v. Bratcher, 99 Okla. 74, 225 P. 941, the purpose of the doctrine is explained as follows:
“In this and other jurisdictions the rigorous application of the rule against recovery where contributory negligence is shown has been ameliorated in proper cases by the adoption and application of what is euphoniously termed the ‘humanitarian’ or ‘last clear chance’ doctrine. This is but a variation of the doctrine of comparative negligence, which has long since been expressly repudiated in" this state. St. Louis & S. F. Ry. Co. v Elsing, 37 Okla. 333, 132 P. 483.”
From this statement of the court it may be seen that the doctrine is useful only where there exists contributory negligence on the part of the injured party.
Under this theory the duties of the party charged with the injury toward the party injured commence at the instant lie discovers the injured party’s perilous situation. After such discovery, and not before, the party charged is required to exercise ordinary care, under the existing circumstances, to avoid the injury. In Oklahoma Ry. Co. v. Overton, 158 Okla. 96, 12 P. (2d) 537, the rule is announced in the first paragraph of the syllabus by the court as follows:
“The rule of the doctrine of last clear chance ‘does not apply in a case unless the danger is actually discovered, because the whole theory of the doctrine is based upon and confined to conduct subsequent to
tlie discovery of the clanger. The action required of the defendant, after discovering the danger is one, as the rule states, of ordinary care, under the circumstances there present.’ Pennsylvania R. Co. v. Swartzel (C. C. A.) 17 P. (2d) 869.”
Thus it may he seen that prior negligence, as contradistinguished from negligence under the last clear chance doctrine, ceases to operate after the position of the plaintiff is discovered. At that instant the negligence of the plaintiff intervenes with the negligence of the defendant to contribute to the proximate cause of the accident. Allegations of negligence occurring prior to discovery of the injured party’s perilous situation are thus rendered inoperative by the injured party’s own allegations of contributory negligence.
The allegations of the two counts are wholly inconsistent and cannot be harmonized, unless other circumstances are such as will permit them both to stand. Can it be said that plaintiff was uncertain as to the facts pleaded in both counts? Were the facts peculiarly within the knowledge of the defendant? Plaintiff may well have been uncertain as to the facts alleged in the first count, but, as to the second, the facts alleged as to her own negligence were peculiarly within her own knowledge. By her allegations she says that she placed herself in a position of peril by her own negligent act. When she employed the two remedies, she may have been uncertain as to which would eventually prevail, if she were allowed to proceed upon both. But when she pleaded facts in one that wholly destroyed her right to recovery on the other, and such destructive facts were peculiarly within her own knowledge, it may not be said that there existed an uncertainty in her own mind as to her right to recover on the first count.
Plaintiff injected this doctrine into the case over the objection of the defendant. Such was wholly within her righ’s. She knew whether or not she was negligent. She says she was negligent. How, then, may her statement be treated as an unproved or uncertain fact? The rule concerning inconsistent pleadings, as stated by the Supreme Court of Kansas (Loschv. Pickett, 36 Kan. 216, 12 P. 822), is recognized by this court in Caldwell v. Baxter, 158 Okla. 76, 12 P. (2d) 509, 515, and is as follows:
“1. A party should be bound by the allegations of his pleadings deliberately made, and should not be allowed to obtain benefits from contradictory and inconsistent allegations therein, even if made in separate coun's.
“2.
The spirit of our Civil Code is that a party shall state in his pleadings the real facts of his ease, and not falsehoods or fiction. A thing cannot be true and untrue at the same lime; and any pleading- containing allegations made by the same party both affirming and denying a particular thing carries falsehood upon its face, and in such a case the court may consider as true such of the allegations as are against the pleader.”
We-have been directed to no decision of this court involving the precise question here under discussion. The general rule as to repugnant remedies may well apply in the present ease. Numerous cases involving the humanitarian doctrine have been before this court, but none of them seem to have involved the question of election of remedies. That the court entertained such actions on appeal is no indication that an action involving the two theories herein mentioned has been approved as proper procedure. No jurisdictional question was involved; the sufficiency of the petition as stating a cause of action was not questioned.
The plaintiff - urges certain decisions of this court sustaining her right to proceed in the alternative upon two inconsistent theories. C., R. I. & P. Ry. v. McIntire, 29 Okla. 797, 119 P. 1008; Southwest Mo. Ry. Co. v. Duncan, 139 Okla. 292, 282 P. 331; Sand Springs Ry. Co. v. McWilliams, 170 Okla. 85, 38 P. (2d) 539. An examination of (hese cases reveals no question of election of remedies. The question of inconsistency arose either on general demurrer or on objection to the introduction of evidence.
Missouri decisions cited by p’ainliff cannot aid in a determination of the question. In that state prior negligence may be cumulative and consistent with the negligence occurring after discovery of plaintiff’s perilous situation under the last clear chance doctrine. Such is not the law in this state. A., T. & S. F. Ry. Co. v. Bratcher, supra.
Other cases called to our attention by plaintiff apparently did not involve the question of election of remedies.
With reference to inconsis'ent defenses which may be set up in an answer, we have said:
“2. Where the defenses set up in an answer are so inconsistent that the proof of one necessarily disapproves the other, the defendant may be compelled to elect on
which defense he will stand, and the proper motion in such case is one to compel an election.” Small v. Comer, 171 Okla. 418, 43 P. (2d) 716.
We do not see that any different rule should apply to inconsistent and repugnant causes of action contained in a petition from that which applies to inconsistent and incompatible defenses contained in an answer.
In the present case defendant’s motion to require plaintiff to elect should have been sustained, and the order overruling such motion constituted prejudicial error.
The judgment of the trial court is reversed and the cause remanded, with instructions to grant defendant a new trial.
RILEY, BAYLESS, BUSBY, and PHELPS, JJ., concur. McNEILL, C. J., OSBORN, Y. C. J., and WELCH and CORN, JJ., dissent.