Barr v. Carroll

Defendant’s appeal from a judgment entered on a jury verdict in favor of plaintiff presents only one question: in view of the allegations of the original and first amended complaints, alleging guest status of plaintiff in defendant’s automobile and wilful misconduct of defendant, did the first count in the second amended complaint alleging involuntary passenger status of plaintiff and negligence of defendant, set up a new and different cause of action?

The court instructed the jury, in effect, that if it should find that plaintiff was a guest of defendant, plaintiff could not recover unless defendant was guilty of wilful misconduct, but if it should find plaintiff was an involuntary passenger, then he. could recover if defendant was negligent. The jury brought in a general verdict for plaintiff for $5,000. In special interrogatories submitted the jury found (1) that defendant was not guilty of misconduct; (2) that plaintiff was an involuntary occupant of defendant’s car. Thus, it must be assumed that the jury found defendant guilty of negligence only, and hence plaintiff’s recovery was only on the first count in the second amended complaint. Therefore the question of the validity of the action of the court in permitting the filing of this count becomes vital. If it was a cause of action not included in that alleged in the original complaint it would be barred by the statute of limitations, as both the first and second amended complaint were filed more than one year after the accident. (See Code Civ. Proc., § 340, subd. 3.)

As no contention is made that the evidence does not support the findings of the jury, no discussion of the evidence will be made.

Was There A Different Cause op Action ?

In determining this question it is well to bear in mind some of the general principles of law relating to amendments of complaints.

(a) The courts are very liberal in allowing amendments in order that, if possible, no litigant be deprived of his day in court because of mere technicalities of pleading. (See Frost v. Witter (1901), 132 Cal. 421 , 424 [ 64 P. 705 , 84 Am.St.Rep. 53 ].)

(b) It is well settled that the commencement of an action upon a given cause does not stop the running of the statute of limitations against a wholly different cause of action, and hence amendments attempting to set up such different cause of action should not be allowed. (Atkinson v. Amador & S. Canal Co., 53 Cal. 102 ; Lambert v. McKenzie, 135 Cal. 100 [ 67 P. 6 ]; Ridley v. Young, 64 Cal.App.2d 503

In Castro v. Singh, 131 Cal.App. 106 [ 21 P.2d 169 ], a guest passenger sued the driver for his injuries, alleged to be caused by the latter’s gross negligence. The statute then provided for recovery under such circumstances. Before judgment, the statute was amended restricting a guest’s recovery, as now, to wilful misconduct and intoxication. The defendant contended that a guest’s right to recover for injuries due to the manner of driving of his host was a statutory one, and that the repeal of that portion of the section allowing recovery for gross negligence without a saving clause, destroyed the plaintiff’s remedy theretofore existing. In holding to the contrary of this contention, the court approved the ruling in the Krause ease above mentioned, and said p. 110) : “The guest statute is to be considered merely as statements of the requisites of negligence or wrongful act which neither repeals nor amends the right to recover as it existed

In Smith v. Pope, (1942) 53 Cal.App.2d 43 [ 127 P.2d 292 ], where the plaintiff was injured while entering the defendant’s automobile, it was held that section 403, Vehicle Code (the present guest law section), béing in derogation of the common law, must be strictly construed and “only those persons who were guests within the definition adopted by the Legislature may be considered to have been deprived of the right to recover except for injuries due to the wilful misconduct or intoxication of the driver.” (Pp. 48-49.) Thus an invited guest, who, through no fault of his own, becomes an involuntary guest, is no longer deprived of his common law right to sue the driver (if it be deemed that the section deprives an1 invited guest of the common law right), nor is he longer put to the proof required by that section. In Benton v. Sloss (1952), 38 Cal.2d 399 [ 240 P.2d 575 ], it was held that section 403, Vehicle Code, “does not limit the common-law liability of the owner of a vehicle for his own negligence as owner.” (P.403.)

We can see no reason, then, why the cause of action in the original complaint, namely, plaintiff being an invited guest, and injured because of defendant’s driving with disregard to the probable consequences, is so basically different from the facts in the amended complaints, namely, that due to defendant’s acts the guest status changed from a voluntary to an involuntary one, and that the driving with disregard to the probable consequences, was not wilful.

The difference between the facts of the original and the amended complaints here is no greater than in the following cases where it was held that the amended complaints, though entitling the plaintiff to different relief than from the original complaints, did not state different causes of action:

Wennerholm v. Stanford Univ. Sch. of Med., supra (1942), 20 Cal.2d 713 , where the original and three amended complaints charged defendants with negligently making certain representations. The.fifth complaint charged that the representations were fraudulently made. The court said:“. . . the only substantial difference between the factual situations set forth in the original and the fifth amended complaint is that the former charged that the representations were negligently made while the latter charges that they were made with

knowledge of their falsity. Despite the change in legal theory from an action for negligence to one for fraud, it cannot be said that an entirely different cause of action is stated. Therefore the latter complaint is not barred by the statute of limitations.” (P. 718.) Certainly a change of legal theory from invited guest to involuntary guest is no greater than that from negligence to fraud.

Rosemead Co. v. Shipley Co. (1929), 207 Cal. 414 [ 278 P. 1038 ]. There the court said (p. 420): “Both complaints count upon the same state of facts; the difference is in the prayer for relief, the original prayer being for a money judgment and the amended prayer being for the equitable relief given. There is but one form of action in this state and a plaintiff may not be dismissed by the court merely because he is mistaken in the nature of the relief to which he is entitled. ’ ’

Wells v. Lloyd IV (1936), 6 Cal.2d 70 [ 56 P.2d 517 ]. There the court held (p. 88) : “Appellant bank was made a defendant by the original complaint. Bach complaint set up the same transaction and sought recovery of damages. The amended complaint was but an amplification of the original. A change of theory as to the basis of recovery or as to the measure of damages is not a change of cause of' action or the substitution of a new and different action for the original. ’ ’

Mackroth v. Sladky, 27 Cal.App. 112 [ 148 P. 978 ]. Concerning the change by amendment from a cause of action for moneys had and received to one upon a written contract to divide commissions, the court said (p. 116): “The fact that the proof required to support the cause of action stated in the amended complaint might be different from that offered and received in support of the original complaint, would not necessarily tend to show that the amended complaint stated a new and an entirely different cause of action.”

Union Lbr. Co. v. J. W. Schouten & Co. (1914), 25 Cal. App. 80 [ 142 P. 910 ]. There, the original complaint was solely for goods sold and delivered. After the statute of limitations would have run were a new cause of action added, plaintiff filed an amended complaint adding a cause of action alleging an account stated and an erro'r therein, and asked for equitable relief. The court held (pp. 82-83) : “Both causes of action were to recover the value of the same consignment of lumber, the charge for which, through an inadvertence, was omitted from the account as stated. Both

“ ‘The new count, offered under leave to amend, must be consistent with the former count or counts, that is, it must be of the like kind of action; and such as might have been originally joined with the others. It must be for the same cause of action, that is, the subject matter of the new count must be the same as of the old; it must not be for an additional claim or demand, but only a variation of the form of demanding the same thing. ’

“As both complaints were for the recovery of the price of the same lot of goods, the action itself, irrespective of the theory on which the right to recover is based, must be regarded as having been commenced when the original complaint was filed. There is no merit therefore in defendant’s point that the Statute of Limitations had run against the cause of action set forth in the amended complaint. [Citations.] ”

This case is particularly applicable here. All our complaints were for the recovery of damages for injury resulting to plaintiff from defendant’s driving. Paraphrasing the above decision, “all complaints were for the recovery of damages for the same injury irrespective of the theory on which the right of recovery was based.”

Schaad v. Barceloux (1919), 42 Cal.App. 337 [ 183 P. 716 ]. There the court said (p. 347): “In the original complaint plaintiff sought to recover the value of the shares which it was alleged defendant received and converted to his own use. In the amended complaint he sought to recover the shares or their value. Technically the amended complaint might be said to ‘sound in tort, ’ but in reality the amended complaint sets forth the defendant’s obligation, as did the original complaint, and the obligation was the cause of action in both pleadings.”

Brooks v. E. J. Wiling Truck Transp. Co. (1953), 40 Cal. 2d 669 [ 255 P.2d 802 ], was an action for death caused by defendants’ truck in which the original complaint simply charged that the defendants were negligent in the operation and control of a truck, as a result of which negligence Brooks was injured and died. More than one year after

Defendant quotes from Johnson v. Marquis, 93 Cal.App.2d 341 [ 209 P.2d 63 ] (hear, den.) (p. 348): “Plaintiffs had

In Hollingum v. Moore, 102 Cal.App.2d 509 [ 227 P.2d 845 ], the fact so far as the plaintiff’s insistence, after discovering the manner of the driving, that the driver let him out of the car, were similar to those in the case at bar. The action was for injuries due to the wilful misconduct of the driver. It is interesting to note that the reviewing court stated: ‘1 The case might well have been tried on the theory that plaintiff was not a guest and hence defendant was liable for ordinary negligence ...” because “When defendant took plaintiff against his will in a direction away from the destination agreed upon it would appear that he was not a guest since one cannot be a guest without his consent.” (P. 511.)

Defendant cites Kastel v. Stieber, 215 Cal. 37 [ 8 P.2d 474 ], holding that whenever the element of wilfulness enters into the act, it ceases to be negligence, and becomes at least “wilful misconduct” (p. 47) : Tognazzini v. Freeman, 18 Cal.App. 468 [ 123 P. 540 ], holding that “there is a decided and well-defined distinction between mere ‘negligence’ and ‘willfulness’ ” (p. 473); and Albers v. Shell Co., 104 Cal.App. 733 [ 286 P. 752 ], to similar effect. Defendant contends that because the original complaint here used the terms “wilfully” and “wantonly” and “wilful misconduct” a theory of recovery based on negligence constitutes a different cause of action. But, as we have heretofore pointed out, these terms, incompatible though they may be, do not in themselves constitute the cause of action. They may be the “theory of recovery” upon the facts which show the basis of the cause of action. In none of these cases discussing the incompatibility of these terms was it held that by bringing an action upon the

In Frost v. Witter, supra, 132 Cal. 421 , the court stated (p. 426): “ ‘An action is nothing else than the right or power of prosecuting in a judicial proceeding what is owed to- one,’— which is but to say, an obligation. . . . The action therefore springs from the obligation, and hence the ‘cause of action’ is simply the obligation. . . . The ‘cause of action’ is therefore to be distinguished, also, from the ‘remedy,’-—which is simply the means by which the obligation or the corresponding action is effectuated,—and also from the ‘relief’ sought.” Applying these definitions to the ease at bar, it is clear that the cause of action set up in the original complaint and that set up in the amended complaints is simply the obligation sought to be enforced, namely, the obligation of defendant to pay plaintiff for the injuries caused by defendant’s driving.

The fact that there may be a difference in the proof of the defense of contributory negligence in a wilful misconduct case as that in an ordinary negligence case (see Schneider v. Brecht, 6 Cal.App.2d 379 [ 44 P.2d 662 ]; Johnson v. Marquis, supra, 93 Cal.App.2d 341 , 345) does not make the different theories of recovery, different causes of action.

Defendant cites Durbin v. McCully, 280 Ill.App. 81 , and Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567 [ 200 N.E. 843 , 119 A.L.R. 646 ], and other eases from outside jurisdictions, some of which hold to the contrary of the result we have reached. We do not deem it necessary to discuss them, for the reason that our conclusion is based upon the law of California as well established by the cases of this state.

The judgment is affirmed.

Peters, P. J., and Wood (Fred B.), J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied December 3, 1954.