33 Cal.App.2d 581, 10722, Cook v. Maier

Docket Nº10722
Citation33 Cal.App.2d 581, 92 P.2d 434
Party NameCook v. Maier
Case DateJune 30, 1939
CourtCalifornia Court of Appeals

Page 581

33 Cal.App.2d 581

92 P.2d 434

WILELMINE COOK, Appellant,

v.

AUGUSTA MAIER et al., Respondents.

Civ. No. 10722.

California Court of Appeal, First District, First Division

June 30, 1939

Page 582

COUNSEL

Phillips &amp Munck and James H. Phillips for Appellant. Charles V. Barfield for Respondents

OPINION

[92 P.2d 435] Ward, J.

This is an appeal from a judgment entered after an order sustaining a demurrer to a first amended complaint, without leave to amend.

The complaint alleges that defendant Benjamin Unger, an employee of defendant Augusta Maier, acting within the course and scope of his employment, so carelessly and negligently drove and operated her automobile that it collided with a second automobile; that as a proximate result of said collision, and the negligence of Unger in operating the vehicle, it ran up and "on to" a vacant lot, the property of plaintiff adjoining her home, where with a loud noise and crash, it collided with a trash burner, thereafter running into a rock and board fence and the corner of her house, all within fifteen feet of her, and causing rocks and parts of the fence "to be thrown and scattered over plaintiff's said property in the direction of plaintiff and about the person of plaintiff" who was on her way to the trash burner. The complaint further alleges that as a proximate result of the movements of the automobile, plaintiff became fearful of her own safety and suffered certain personal injuries, including fright, shock, sickness of body and mind and "loss of feeling for a considerable period of time in her left arm and causing her to be confined to her bed."

The contention of respondents, namely, that appellant by reason of her failure to apply to the trial court for permission to amend, may not complain, should be disposed of prior to the consideration of the merits of the demurrer. The general rule is that when a defective complaint may be cured by amendment, if no request to amend is presented, it is not reversible error to sustain the demurrer without leave to

Page 583

amend. (Haddad v. McDowell, 213 Cal. 690 [3 PaCal.2d 550]; Consolidated R. & P. Co. v. Scarborough, 216 Cal. 698 [16 PaCal.2d 268].) This rule is, of course, subject to the exception that when the pleader elects to stand or fall upon the allegations of the complaint, without seeking to amend, a request to do so would be an idle...

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20 practice notes
  • 973 F.2d 1490 (9th Cir. 1992), 90-55224, In re Air Crash Disaster Near Cerritos
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • September 1, 1992
    ...she was standing. The plaintiff was not hit by the truck, but she feared for her own safety. Webb, 4 P.2d at 533. In Cook v. Maier, 33 Cal.App.2d 581, 92 P.2d 434 (1939), the California Court of Appeals held that a plaintiff stated claims for emotional distress which she allegedly suffered ......
  • 179 S.W.2d 151 (Ark. 1944), 4-7318, Chicago, Rock Island & Pacific Railway Co. v. Caple
    • United States
    • Arkansas Supreme Court of Arkansas
    • April 3, 1944
    ...314, 112 N.W. 267; Hunter v. Fleming (Mo.), 7 S.W.2d 749; McCardle v. Geo. B. Peck Co., 271 Mo. 111, 195 S.W. 1034; Cook v. Maier, 33 Cal.App.2d 581, 92 P.2d 434. Annotation in 23 A. L. R. 361 and White on "Personal Injuries on Railroads," vol. 1, § 171. See, also, 15 Am. J. 513 a......
  • 22 Cal.App.4th 1398, E010924, Bro v. Glaser
    • United States
    • California California Court of Appeals
    • February 24, 1994
    ...not, of itself, fatal to her attempt to state a cause of action." (59 Cal.2d at p. 299, fn. omitted, citing Cook v. Maier (1939) 33 Cal.App.2d 581, 584-585 [92 P.2d 434].) However, the court went on to rule that the plaintiff could not state a cause of action for her emotional distress......
  • 68 Cal.2d 728, 7816, Dillon v. Legg
    • United States
    • California Supreme Court of California
    • June 21, 1968
    ...the impact rule becomes even less defensible. We have, indeed, held that impact is not necessary for recovery (Cook v. Maier (1939) 33 Cal.App.2d 581, 584.) The zone-of-danger concept must, then, inevitably collapse because the only reason for the requirement of presence in that zone lies i......
  • Request a trial to view additional results
20 cases
  • 973 F.2d 1490 (9th Cir. 1992), 90-55224, In re Air Crash Disaster Near Cerritos
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • September 1, 1992
    ...she was standing. The plaintiff was not hit by the truck, but she feared for her own safety. Webb, 4 P.2d at 533. In Cook v. Maier, 33 Cal.App.2d 581, 92 P.2d 434 (1939), the California Court of Appeals held that a plaintiff stated claims for emotional distress which she allegedly suffered ......
  • 179 S.W.2d 151 (Ark. 1944), 4-7318, Chicago, Rock Island & Pacific Railway Co. v. Caple
    • United States
    • Arkansas Supreme Court of Arkansas
    • April 3, 1944
    ...314, 112 N.W. 267; Hunter v. Fleming (Mo.), 7 S.W.2d 749; McCardle v. Geo. B. Peck Co., 271 Mo. 111, 195 S.W. 1034; Cook v. Maier, 33 Cal.App.2d 581, 92 P.2d 434. Annotation in 23 A. L. R. 361 and White on "Personal Injuries on Railroads," vol. 1, § 171. See, also, 15 Am. J. 513 a......
  • 22 Cal.App.4th 1398, E010924, Bro v. Glaser
    • United States
    • California California Court of Appeals
    • February 24, 1994
    ...not, of itself, fatal to her attempt to state a cause of action." (59 Cal.2d at p. 299, fn. omitted, citing Cook v. Maier (1939) 33 Cal.App.2d 581, 584-585 [92 P.2d 434].) However, the court went on to rule that the plaintiff could not state a cause of action for her emotional distress......
  • 68 Cal.2d 728, 7816, Dillon v. Legg
    • United States
    • California Supreme Court of California
    • June 21, 1968
    ...the impact rule becomes even less defensible. We have, indeed, held that impact is not necessary for recovery (Cook v. Maier (1939) 33 Cal.App.2d 581, 584.) The zone-of-danger concept must, then, inevitably collapse because the only reason for the requirement of presence in that zone lies i......
  • Request a trial to view additional results