# Courtell v. McEachen > California Supreme Court · February 2, 1959 · 51 Cal. 2d 448 URL: https://www.frixlaw.com/law-library/cases/9608844 ## Case - **Full name:** DONNA JEAN COURTELL, a Minor, Etc., Respondent, v. HAZEL M. McEACHEN Et Al., Appellants - **Court:** California Supreme Court - **Decided:** February 2, 1959 - **Citations:** 51 Cal. 2d 448; 334 P.2d 870; 1959 Cal. LEXIS 267 - **Precedential status:** Published - **Opinion:** Concurring in part by Carter - **Judges:** Carter, Gibson, Spence - **Cited by:** 53 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9608844 ## Opinion text CARTER, J., Concurring and Dissenting.—I agree with that portion of the majority opinion which determines the issue of liability of the defendants in this case but disagree with the discussion and the conclusion with respect to the issue of contributory negligence of the plaintiff, Donna Jean Courtell. From my examination of the record in this case it appears clear that contributory negligence is not an issue for the following reasons: First, there is no sufficient allegation in the answer of any of the defendants to raise an issue of contributory negligence of any of the plaintiffs. Second, there is no basis for the conclusion that the issue of contributory negligence is available to defendants because no testimony was offered on this issue and the case was not tried upon the theory that contributory negligence was an issue. The record discloses that all of the testimony offered on behalf of plaintiff was testimony relating to her conduct, which was necessarily a part of her case in chief. *465 It is true that in the second affirmative defense of the answer of defendants there is an attempt to plead contributory negligence generally. A demurrer and motion to strike this defense were interposed. The demurrer was overruled and the motion to strike denied. Under the settled law of this state plaintiffs’ attack upon this defense should have been sustained. From this state of the record it cannot be said that contributory negligence was pleaded or that the pleadings were sufficient to give rise to the issue of contributory negligence. No testimony was offered by either party on the issue of contributory negligence and the fact that instructions were submitted on this issue is of no consequence. While it is my view that it is within the province of the trial judge to determine in the first instance whether a child of tender years may be guilty of contributory negligence, for the reasons above stated, it is not necessary for this court to determine in this ease whether the trial judge abused his discretion in holding as a matter of law that plaintiff Donna Jean Courtell was not capable of exercising care to avoid the particular danger encountered by her which resulted in her injury and that she could not, therefore, be guilty of contributory negligence. In California, as a general rule, a defendant must specially plead contributory negligence of the plaintiff in order to rely on that defense. (Kenny v. Kennedy, 9 Cal.App. 350, 351 [ 99 P. 384 ] ; Kofoid v. Beckner, 70 Cal.App. 624, 630 [ 234 P. 113 ]; Hoffman v. Southern Pac. Co., 84 Cal.App. 337, 346 [ 258 P. 397 ].) But where plaintiff’s contributory negligence appears from the allegations of the complaint or evidence introduced in his behalf, the defense is available to the defendant though not pleaded in his answer. (Green v. Southern Pac. Co., 132 Cal. 254 [ 64 P. 255 ] ; Hall v. City & County of San Francisco, 188 Cal. 641 [ 206 P. 459 ]; Kenny v. Kennedy, supra, 9 Cal.App. 350 .) Another exception to the general rule exists where it appears from the record that the issue of contributory negligence was actually and intentionally tried by the introduction of pertinent evidence, provided it is shown that the parties consciously participated or acquiesced in such trial as if the issue had been made by the pleadings. (Ortega v. Cordero, 88 Cal. 221, 227 [ 26 P. 80 ] ; Lein v. Parkin, 49 Cal.2d 397, 400-401 [ 318 P.2d 1 ].) The plea must set forth the facts on which the defense of contributory negligence is predicated and not merely state *466 the conclusion of the pleader that the plaintiff was guilty of negligence contributing to the injury. (Crabbe v. Mammoth Channel Cold Min. Co., 168 Cal. 500, 505 [ 143 P. 714 ].) “It is not necessary to use the specific term of contributory negligence, although a concise statement of the facts indicating the commission or omission of acts which would be required of one under similar circumstances in the exercise of ordinary care and which would appear to directly contribute to the injuries complained of must be alleged. It is not sufficient to merely allege in the form of a conclusion that the acts complained of were due to the negligence or carelessness of the plaintiff.” (Hoffman v. Southern Pac. Co., 84 Cal.App. 337, 347 [ 258 P. 397 ].) Where an improper pleading is shown to exist it is at the very least subject to a special demurrer (see Campbell v. Genshlea, 180 Cal. 231, 217 [180 P. 336]; Fleischmann v. Loitito, 6 Cal.2d 365, 367 [ 57 P.2d 922 ]), and some cases have held that a general demurrer should be sustained (Foerst v. hobro, 125 Cal.App. 476, 479 [13 P.2d 1055]; Callaway v. Novotny, 128 Cal.App. 166, 169 [ 16 P.2d 1013 ]). Applying these rules to the case at bar, the question for determination is whether defendant’s allegations in his second special defense constitute an adequate plea of contributory negligence. If not then the demurrer to this defense should have been sustained or the motion to strike the same should have been granted. For the reasons stated below it appears that the allegations contained in this pleading are insufficient to state a valid plea of contributory negligence. The plea reads in part “That if in fact plaintiffs . . . were injured . . . then said injuries and damages, if any . . . are due to the negligence and carelessness of the plaintiffs . . . and that said negligence and carelessness . . . proximately and concurrently contributed to and brought about whatever injuries and damages plaintiffs . . . may have sustained.” It is at once evident in reading this pleading that there are no facts included therein that indicate the commission or omission of acts which would be required of one under similar circumstances in the exercise of ordinary care and which would appear to directly contribute to the injuries complained of. Failure to allege any fact or facts from which the negligence occurred renders the complaint fatal (Church v. Headrick & Brown, 101 Cal.App.2d 396 [ 225 P.2d 558 ] ; Potter v. Richards, 132 Cal.App.2d 380 [ 282 P.2d 113 ]) for the reason that there is a failure to show a causal connection between *467 the act and injury. Furthermore there is no evidence which would support a finding of contributory negligence. Although these complaints are concerned with negligent acts of the defendant the same rules apply when defendant pleads contributory negligence. (Hoffman v. Southern Pac. Co., supra.) Thus, defendant’s failure to describe any acts of negligence on the part of the plaintiff to show a causal connection between them and the injury is fatal. I would, therefore, affirm the judgment. Respondent’s petition for a rehearing was denied March 4, 1959. Carter, J., was of the opinion that the petition should be granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9608844. Public record. Not legal advice.