By amended complaint filed in this action appellant sought to recover from respondents damages on account of injuries alleged to be the result of a collision of an automobile driven by respondent Helen Mathews, with a wagon driven by appellant. To this amended complaint each of the respondents filed separate demurrers, motions to strike, and motions to separately state causes of action.
On September 16, 1936, the trial court sustained the general demurrer of Roy E. Mathews; sustained the motion to strike of Roy E. Mathews and also the motion to strike of *Page 19 Farmers Automobile Inter-Insurance Exchange; and sustained the special demurrer of Helen Mathews. On the same day appellant in writing refused to plead further and on September 22, 1936, the trial court entered its judgment dismissing the action, from which this appeal is taken.
Appellant's four assignments of error urge that the court erred in sustaining the demurrers and motions to strike and in entering judgment dismissing the action, which may be resolved into three issues: First, whether the amended complaint stated a cause of action against the Farmers Automobile Inter-Insurance Exchange; second, whether the amended complaint states a cause of action against Roy E. Mathews; and third, whether the allegations of negligence and injury contained in the complaint were sufficient to withstand the assault of the special demurrer of Helen Mathews.
It is urged by appellant that the amended complaint stated a cause of action against respondent Farmers Automobile Inter-Insurance Exchange and that the trial court erred in sustaining the motion of respondent Farmers Automobile Inter-Insurance Exchange and dismissing the action as to said company. I cannot agree with this contention. An examination of the provisions of the insurance policy1 discloses that there is no express or implied provision therein authorizing the bringing or maintaining of an action against *Page 20 the insurance company by an injured party prior to an adjudication of legal liability on the part of the insured. The provisions of the insurance policy do not provide for liability on the part of the insurer until it has been determined judicially that the insured is liable to the third party. No legal liability having been judicially established against the insured the motion to strike was properly sustained and the dismissal of the action was not error. The question involved and above determined is clearly and concisely discussed in the cases hereinafter cited making further discussion of the point involved unnecessary. (Van Derhoof v. Chambon, 121 Cal. App. 118,8 P.2d 925; Conley v. United States Fid. Guar. Co.,98 Mont. 31, 37 P.2d 565; Smith Stage Co. v. Eckert,21 Ariz. 28, 184 P. 1001, 7 A.L.R. 995.) Appellant cites and relies upon Collard v. Universal Auto Ins. Co., 55 Idaho 560,45 P.2d 288, to maintain his position that the Farmers Automobile Inter-Insurance Exchange was a proper party defendant. The case is not in point because the injured plaintiff there had reduced his demands against the insured to a judgment and execution had been returned unsatisfied and the action against the insurance company was to collect such judgment. It is said in the opinion that it has been held that such a policy "creates a primary liability against the insurer in favor of persons injured or damaged." It is obvious that the opinion was speaking of primary or direct liability of the insurance company to the injured party after judgment obtained *Page 21 and execution issued and returned unsatisfied in comparison with secondary liability of the insurance company. It was not held or intended to be held and it is not now held that legal liability arises against the insurer and in favor of persons injured or damaged prior to a judicial determination of such liability under the facts and provisions of the policy considered herein. Under the terms of the policy involved herein it is clear that the injured party must first obtain a judgment against the insured, have execution issued thereon and the execution must be returned unsatisfied as conditions precedent to a right to maintain an action against the insurance company. The foregoing being true, all matters in the complaint with relation to the Farmers Automobile Inter-Insurance Exchange were improper and they were properly stricken from the amended complaint. All such matters were entirely foreign to appellant's case, not relevant and not material under any theory, and all such allegations were irrelevant, all sham, all redundant, all immaterial and all prejudicial.
With relation to the negligence of respondent Helen Mathews the complaint alleges:
"Helen Mathews . . . . coming on from the rear at a rapid and negligent speed drove said automobile in a careless and negligent manner and collided with plaintiff's wagon . . . .
"That said injury to plaintiff and damage . . . . were the direct result and proximate cause of gross careless, negligent, heedless, and reckless operation of the Chevrolet car . . . . that the said defendant Helen Mathews drove the said machine deliberately at a high rate and unsafe speed into the vehicle of the plaintiff, . . . ."
A special demurrer was interposed to the complaint reciting in part:
"That said Amended Complaint is ambiguous in the following particulars:
"(a) In that it cannot be ascertained from the following allegation contained in paragraph II of said complaint:
'and coming on from the rear at a rapid and negligent speed drove said automobile in a careless and negligent manner' *Page 22 at what speed it will be claimed the driver was traveling or in what particulars said driver drove said automobile in a careless and negligent manner, . . . .
"(c) That it cannot be ascertained from the following allegation in paragraph III of said Amended Complaint:
'were wholly due and caused by the defendants' acts and were the direct result and proximate cause of gross careless, negligent, heedless, and reckless operation of the Chevrolet car'
in what particulars it will be claimed the said Chevrolet car was being operated in a careless, negligent, unlawful and/or reckless manner.
"(d) That it cannot be ascertained from the following allegation in paragraph III of said Amended Complaint:
'That the said defendant Helen Mathews drove said machine deliberately at a high rate and unsafe speed into the vehicle of the plaintiff'
at what speed Helen Mathews drove said vehicle and in what manner she drove the same at an unsafe rate of speed."
While general allegations of negligence may be sufficient if not property attacked, the rule would appear to be otherwise when defendant has called for a more definite and certain averment at the appropriate time. (King v. Oregon S. L. R. Co.,6 Idaho 306, 55 P. 665, 59 L.R.A. 209; Crowley v. Croesusetc. Min. Co., 12 Idaho 530, 86 P. 536; Younie v. Blackfoot L.Co., 15 Idaho 56, 96 P. 193; Pullen v. Butte, 38 Mont. 194,99 P. 290, 21 L.R.A., N.S., 42; Osborn v. Carey, 24 Idaho 158,132 P. 967; McMath v. Holekamp Lumber Co., (Mo.App.)259 S.W. 843; Cyclopedia of Automobile Law and Practice, Blashfield, Vol. 9, sec. 5933, page 130.) In King v. Oregon S. L. R. Co.,supra, the rule is stated in the syllabus, by the court, as follows:
"Under subdivision 2, section 4168 of the Revised Statutes (Now, I. C. A., sec. 5-605) which requires the complaint to contain a statement of the facts constituting the cause of action in ordinary and concise language, a general allegation of negligence while good against a general demurrer, is not good against a demurrer on the ground of uncertainty."
In the course of the opinion it is said: *Page 23
"We are aware that there is very respectable authority which holds that a general allegation of negligence is sufficient, . . . . But our Code of Civil Procedure has greatly changed the common law rules of pleading, and requires the facts constituting the cause of action to be set forth in ordinary and concise language. And in the case at bar facts sufficient should have been set forth to inform the defendant what acts or omission constituted the negligence complained of. The judgment of the court below is reversed with instructions to sustain the demurrer, and to give the plaintiff leave to amend his complaint."
See also: Osborn v. Carey, supra. I find no error in the court's action in sustaining the special demurrer of respondent Helen Mathews. The majority opinion ignores the special demurrer of Helen Mathews with relation to the question herein considered, namely whether the complaint was specifically sufficient to allege negligence and withstand the onslaught of the special demurrer for uncertainty, and simply states the rule that where two causes of action are improperly united and commingled in one count of the complaint, the proper remedy to reach that defect is by motion to require the plaintiff to state such causes of actions in different counts. Since the court did not err in sustaining the special demurrer of Helen Mathews to the amended complaint for the reasons above indicated it follows that no cause of action was alleged therein as against respondent Roy E. Mathews, the theory of the case being that Roy E. Mathews is liable solely for and on account of the negligence of respondent Helen Mathews. The court therefore properly sustained the general demurrer and motion to strike filed on behalf of respondent Roy E. Mathews. The complaint negatives the idea that the relationship of principal and agent existed between Roy E. Mathews and Helen Mathews, and no liability could be created against Roy E. Mathews in the absence of allegations and proof that Helen Mathews was acting as his agent or that Roy E. Mathews was liable in some manner for her negligence.
The judgment should be affirmed.
1 "The Exchange agrees to pay on behalf of the Insured when such coverage is designated, Loss and/or Expense resulting from Legal liability imposed upon the Insured resulting solely from an accident occurring while the policy is in force, by reason of the ownership, maintenance, and/or use of the automobile described herein, on account of:
"Clause F — Property Damage
"Damage to property, including the loss of use thereof (except to property owned by, or in charge of the Insured, or property in charge of persons of the same household or in the Insured's service, . . . .
"Clause G — Public Liability
"Bodily injury and/or death, including loss of services, suffered or alleged to have been suffered by any person excepting the insured . . . .
"Clause J — Insolvency or Bankruptcy of the Insured.
"The insolvency or bankruptcy of the Insured shall not release the Exchange from the payment of damages for death, injuries sustained or loss occasioned during the term of the policy. When execution of final judgment against the Insured or Insured's Legal Representative, is returned unsatisfied in an action brought by the judgment creditor then an action may be maintained by the judgment creditor against the Exchange under the terms of the policy for the amount of the judgment, not exceeding the limit of this policy applicable thereto,"
"No suit by the Insured to recover for any loss covered by the policy arising or resulting from claims upon the Insured for damages shall be sustainable unless brought after the amount of damages for which the Insured is liable, by reason of any casualty insured by this policy, is determined by a final judgment against the Insured, . . . ." *Page 24