Breceda v. Gamsby
| Decision Date | 04 November 1968 |
| Citation | 72 Cal.Rptr. 832,267 Cal.App.2d 167 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Victor E. BRECEDA, Plaintiff and Appellant, v. Jay F. GAMSBY, Defendant and Respondent. Civ. 11592. |
Crow, Phillips, Clements & Lytle, by Richard E. Crow, Sacramento, and Charles E. Hurley, Yreka, for plaintiff-appellant.
Sedgwick, Detert, Moran & Arnold, San Francisco, Mitchell & Henderson, Eureka, by Roger Sleight, San Francisco, for defendant-respondent.
This is a pleading case. The trial court held that the statute of limitations had barred the action against the defendant Jay F. Gamsby. The original complaint was filed before the running of the applicable statute of limitations (Code Civ.Proc. § 340, subd. 3--one year). Doe defendants were named under Code of Civil Procedure section 474, which permits unknown defendants to be sued originally under fictitious names with their true names substituted when ascertained. Gamsby was named, substituted and served as a Doe defendant, and two amended complaints were filed, all more than one year after the accident-producing injuries had occurred. The court found the procedure adopted as applied to Gamsby was improper. We disagree. Preceded by basic facts our reasoning, supplemented by additional facts, will be discussed under appropriate headings below.
Under the original complaint filed May 9, 1962, plaintiff, Victor E. Breceda, alleged that on May 23, 1961, while working for Arcata Lumber Services, Inc., he suffered injuries when a large stack of lumber fell upon him. He alleged the lumber fell due to the 'dangerous and defective' condition of a forklift. The injuries were serious. It appears in the record that proceedings were had for benefits under the workmen's compensation law, such proceedings being against Arcata's insurer, State Compensation Insurance Fund (hereafter 'Fund'). The original complaint filed in this superior court action also was centered against Fund. It was alleged that Fund had undertaken to make safety inspections in its contract of insurance with Arcata and had breached its contract (of which Breceda was a third party beneficiary) by its failure to do so. That cause of action is not involved in these proceedings. 1 In that same count of the original complaint, plaintiff essayed another claim of relief. He named ten Doe defendants under the standard allegation, averring that when their true names were learned the complaint would be amended 'to show their true names and capacities when the same have been ascertained.' Also alleged is 'that each of the defendants designated herein as DOE is negligently responsible in some manner for the events and happenings herein referred to and negligently and proximately caused the injury and damage to plaintiff herein alleged.'
On December 18, 1963, plaintiff filed an amended complaint. In it Gamsby was alleged to be the person originally sued as Doe I. It alleged that plaintiff was operating the forklift when he was injured. It was also averred that Gamsby was secretary-treasurer of Arcata and was in full charge of the lumber yard and that, 'in reckless disregard of the health and safety of plaintiff * * * and with a calculated and conscious willingness to expose plaintiff * * * to the risk of injury from falling lumber,' Gamsby had ordered that a guard designed to protect the operator be removed from the forklift. A second amended complaint was filed November 27, 1964. It merely added that Gamsby had also 'permitted' the removal of the guard from the forklift. The purpose of the two amendments was to state a cause of action under Labor Code, section 3601, subdivision (a)(3). That subdivision preserves the right of an injured employee to bring an action against a fellow employee when the act of the latter 'evinces a reckless disregard for the safety of the employee injured, and a calculated and conscious willingness to permit injury * * * to such employee.'
Gamsby's answer pleaded the bar of the statute of limitations. 2 2 A separate trial on the issue of the bar of the statute was ordered under Code of Civil Procedure section 597. At such separte trial the trial court ruled as stated and entered judgment in favor of Gamsby. The appeal is from that judgment.
The critical question to be determined is the bona fides of the substitution of Gamsby by name for a fictitiously-named defendant under Code of Civil Procedure section 474. Several hurdles must be cleared before that question is reached. We approach the first.
In Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, on page 600, 15 Cal.Rptr. 817, on page 819, 364 P.2d 681, on page 683, it is stated: 'The modern rule with respect to actions involving parties designated by their true names in the original complaint is that, where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings On the same general set of facts.' 3 (Italics ours.) At the outset it will be noted that the phrase 'on the same general set of facts,' which defines the limit of relation back in Austin, and the language 'conduct, transaction, Or occurrence' (note use of the disjunctive) in the federal rule offer considerable room for judicial disagreement in their application. In the Austin case the original complaint alleged that the 'defendants' (which included 'Does') acted as brokers and agents for plaintiffs and refused to deliver securities and moneys which they had received on behalf of plaintiffs. The amended complaint alleged the same defalcations but sued the surety company ('Massachusetts') on a faithful performance bond which it had written as required by law. Massachusetts was substituted for a Doe defendant. In Wennerholm v. Stanford University School of Medicine (our fn. 3) the original complaint, in its relation to the defendant manufacturer of a drug, alleged that said manufacturer had negligently failed to disclose that a drug prescribed for obesity was dangerous. In the amended complaint it was alleged that advertisement of the drug in medical journals, etc., was fraudulent.
We approach application of the rule just enumerated to the facts of the case before us with two policies of the law in mind. One must be weighed against the other. Statutes of limitation are statutes of repose. They prevent the assertion of stale claims. Properly applied they are meritorious defenses. They 'promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.' (1 Witkin, Cal.Procedure, Actions, § 89, pp. 593--594.) The countervailing policy is alluded to in Austin v. Massachusetts Bonding & Insurance Co., supra, 56 Cal.2d 596, at page 603, 15 Cal.Rptr. 817, 364 P.2d 681. It is the policy that the law favors the decision of cases on their merits.
In the case before us in the original complaint there is an allegation of negligence and injury as the proximate result of that negligence against All of the Doe defendants. True, at the outset plaintiff did not appear to know precisely in what manner the defendants other than the Fund were responsible because he alleged the Does were 'negligently responsible In some manner' for the 'events and happenings' which caused injury. (Italics ours.) One such event was described in the original complaint. It was there alleged that the forklift 'became dangerous and defective.' In contrast, the amended complaint (although repeating that phrase) pleaded a more serious tortious wrong, an act which, as we later hold, amounted at least to serious and wilful misconduct.
Gamsby, invoking the statute of limitations, unsuccessfully demurred to the amended complaint. On appeal he argues that the amendment alleged a Statutory cause of action entirely different from the allegations of negligence contained in the original complaint. From this Gamsby contends that the amended complaint showed on its face that it was barred by limitations, that one may not state a statutory cause of action as an amendment to an action for negligence. Regardless of Gamsby's conclusion his premise fails. Labor Code section 3601, subdivision (a)(3), did not create a statutory cause of action. It preserved an employee's common-law right to recover against a fellow employee for acts evincing a reckless disregard of the plaintiff's safety. (Lowman v. Stafford (1964) 226 Cal.App.2d 31, 39, 37 Cal.Rptr. 681 (hearing denied).) (See our fn. 2.)
We compare the change from negligence to the type of wilful misconduct pleaded in the case before us with the change from defalcations by brokers to an action on the faithful performance bond in Austin, with the change from negligence to fraud in Wennerholm, and with the change from negligence to wilful misconduct in both Esrey v. Southern Pac. Co. (1894) 103 Cal. 541, 546, 37 P. 500, and Saari v. Superior Court (1960) 178 Cal.App.2d 175, 2 Cal.Rptr. 856.
We hold that the recovery sought in both pleadings was on the same general set of facts and that the amended pleading related back to the original complaint under the cases cited.
The rule of relation back, as we have discussed it thus far in this opinion, has been considered in its aspect of application to defendants truly named in the original complaint (although the Austin case, like this case, involved a Doe defendant substitution). We now proceed to the next question.
Gamsby was secretary-treasurer and in full charge of the operations at the lumber yard. That, for some purposes,...
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