Ching v. Dy Foon

• Decision Date: 16 July 1956
• Citation: 143 Cal.App.2d 129,299 P.2d 668
• Court: California Court of Appeals Court of Appeals
• Parties: Geneva CHING (Yee), Plaintiff and Appellant, v. Eugene DY FOON, Defendant and Respondent. Civ. 16723.

Page 668

299 P.2d 668

143 Cal.App.2d 129

Geneva CHING (Yee), Plaintiff and Appellant, v. Eugene DY FOON, Defendant and Respondent.

Civ. 16723.

District Court of Appeal, First District, Division 2, California.

July 16, 1956.

Rehearing Denied Aug. 15, 1956.

Hearing Denied Sept. 13, 1956.

White & White, San Francisco, for appellant.

Bledsoe, Smith & Cathcart, Leighton M. Bledsoe, Joseph W. Rogers, Jr., San Francisco, of counsel, for respondent.

KAUFMAN, Justice.

This is an appeal from a judgment in favor of defendant and appellant after jury verdict in a personal injury action by a guest for injuries received in an automobile accident in Los Angeles on September 7, 1951.

Appellant, Geneva Ching, Esther Wong, another guest, and Eugene Dy Foon, the driver and owner of the automobile in which the three were riding, were on their way from Farmers' Market to Knott Berry Farm, when respondent fell asleep at the wheel and crashed into the rear of another vehicle which had stopped for a stop signal at an intersection on Figueroa Street. Appellant, riding beside the respondent, was asleep when the accident happened. She was thrown against the dashboard sustaining severe facial cuts about the mouth and chin and the loss of several teeth.

Respondent Dy Foon had been dating appellant occasionally for some months prior to this trip. Appellant, who was to attend a bowling tournament in Los Angeles, left San Francisco in the company of Mrs. Wong and Elsie Chang, in respondent's car prior to the Labor Day week end. They visited San Diego and Tiajuana before Labor Day, attended the bowling tournament on Labor Day in Los Angeles, and probably on Tuesday. On Monday or Tuesday evening they went to a dance. Leaving Los Angeles Wednesday evening they drove at night, reaching Las Vegas, Nevada, in the morning. Respondent did most of the driving but was occasionally relieved by Elsie Chang. The evidence does not show whether or not respondent slept while Elsie drove, but no stops were made for sleep. Elsie rested in the car while the other three walked around town. They then drove to Hoover Dam where they rested in a park for a couple of hours. Appellant believed that they all took naps.

In the evening of the same day, Thursday, September 6, the group headed back for Los Angeles, respondent doing all the driving on this trip. Respondent stopped the car once to sleep. Appellant did not know how long the stop had been as she awoke as the car started up again. They arrived in Los Angeles at about daylight Friday.

After leaving the women at their quarters, respondent went to his sister's home. Some time later in the morning he took a girl friend of appellant's to work, drove around Los Angeles with appellant, picked up appellant's girl friend, and went with them to the Farmers' Market for lunch. They left the Farmers' Market at about 2:00 p. m. to go to Knott Berry Farm. Appellant had asked respondent to take her there as she had seen some slippers there which she wanted to buy. She asked respondent if he was tired or sleepy because she thought he would be, saying they could have dinner first if he wished. He said no he wasn't, that he could do it. Appellant felt wide awake at the time, but was asleep when the accident happened.

Respondent testified that appellant and Mrs. Wong asked him twice if he was sleepy on leaving Farmers' Market, that he was not at that time, having just had a cold drink. He nodded his head a couple times in drowsiness prior to the accident, but shook himself and felt awake and able to drive.

Respondent pleaded the defense of assumption of risk. A special demurrer to this plea was overruled. At the commencement of the trial, appellant's motion to strike the special defense was denied and instructions on this defense were given to the jury.

The complaint herein filed August 22, 1952, alleged that on September 7, 1951, at about 3:30 p. m., plaintiff was a guest in defendant's automobile which was being operated in a southerly direction on Figueroa Street in Los Angeles; that defendant caused said automobile to collide with an automobile ahead of him which had stopped in compliance with an automatic stop signal; that the collision and the injuries sustained resulted from defendant's wilful misconduct in operating the automobile in that 'knowing he was in a drowsy and sleepy condition, and knowing he was napping or dozing at the wheel and knowing to continue to drive in said drowsy condition was a dangerous thing to do, he continued to drive said automobile with reckless disregard of the consequences and recklessly and wantonly took a chance with the knowledge that probable serious injury would result to plaintiff from said misconduct.' The answer denied generally the allegations of the complaint and set up the following affirmative defense: 'This defendant alleges that plaintiff Geneva Ching voluntarily rode in the automobile mentioned in said complaint, and voluntarily assumed all of the risks [incident] to riding in said automobile at the time and place in question and under circumstances existing when she elected to ride with defendant.'

Appellant asserts that error was committed by the trial court in denying her motion to strike the affirmative defense, since no facts were pladed showing appellant's knowledge of the danger, or her appreciation of the danger, or that the danger known and appreciated by appellant were the proximate cause of appellant's injuries.

It is well established that assumption of risk and contributory negligence may be pleaded as affirmative defenses in wilful misconduct cases. (7 Cal.Jur.2d 239, sec. 340, and cases there cited.) If the plea in question was good against a general demurrer, it was good against a motion to strike, for even if the special demurrer had been improperly overruled, granting the motion to strike in such case would be equivalent to sustaining a special demurrer without leave to amend, a ruling which is unquestionably an abuse of discretion. Zakaessian v. Zakaessian, 70 Cal.App.2d 721, 161 P.2d 677; Duffy v. Duffy, 82 Cal.App.2d 203, 186 P.2d 61.

The defense is good against general demurrer for it alleged that she voluntarily rode in the automobile mentioned in the complaint, and voluntarily assumed all of the risks incident to riding in said automobile at the time and place in question and under the circumstances existing when she elected to ride with defendant. The only risk alleged in the complaint is respondent's driving in a drowsy condition. Therefore the answer sufficiently advised appellant that respondent would attempt to prove that appellant assumed the risk of respondent's knowingly driving in a sleepy condition. Under the present liberal rules of pleading, negligence may be alleged in very general terms, the pleader alleging only the act which caused injury, stating that it was done negligently. Stephenson v. Southern Pacific Co., 102 Cal. 143, 148, 34 P. 618, 36 P. 407; Griswold v. Pacific Electric Railway, 45 Cal.App. 81, 87, 187 P. 65.

It also appears that no prejudicial error could have resulted from the overruling of the special demurrer. Such a demurrer will not be sustained when the allegations make sufficiently clear the issues which the adverse party must meet. People v. Lim, 18 Cal.2d 872, 118 P.2d 472; Brea v. McGlashan, 3 Cal.App.2d 454, 39 P.2d 877. No reasonable person could be in doubt as to what risk respondent had alleged that appellant had assumed since the complaint alleged only one--knowingly driving while sleepy. On trial, this was the only risk respondent attempted to prove appellant had assumed under this defense. Furthermore, a demurrer for uncertainty will not be sustained where the facts claimed to be uncertain or ambiguous are presumptively within the knowledge of the demurring party. Merlino v. West Coast Macaroni Mfg. Co., 90 Cal.App.2d 106, 108, 202 P.2d 748.

Appellant complains that there is no statement in the defense that appellant knew of and appreciated the risk. Pleading that she voluntarily assumed the risk of respondent's knowingly driving in a sleepy condition necessarily implies these elements. It is not necessary to plead all the evidentiary facts. Although the defense could have been more specifically stated, no prejudice could result in overruling the demurrer where the facts were all presumptively within the knowledge of the demurring party. Merlino v. West Coast Macaroni Mfg. Co., supra; Salas v. Whittington, 77 Cal.App.2d 90, 174 P.2d 886; 2 Witkin, California Procedure 1599.

Respondent's counsel offered at the opening of the trial to amend his defense, but appellant's counsel demanded a ten day continuance in order to plead that the defense was sham if leave to amend should be granted by the court. The court denied the continuance but assured appellant that additional time would be granted her at any time during trial if she should be surprised and need time to obtain additional evidence. No such request was made.

It is contended that appellant was entitled to a directed verdict in her favor. Under the evidence in this case it was a factual question whether or not respondent was guilty of wilful misconduct. It was also a factual question as to whether or not appellant had assumed the risk of respondent's misconduct, if any. We know of no case which holds as a matter of law that it is wilful misconduct to continue to drive after having experienced 'premonitory symptoms' of sleep. It has been held that where a driver goes to sleep at the wheel of an automobile and after awakening continues to drive and an accident results from him falling asleep again, it is a question of fact for the jury as to whether the driver was guilty of wilful misconduct in thus continuing to drive. Erickson v. Vogt, 27 Cal.App.2d 77, 80 P.2d 533; Pennix v. Winton, 61 Cal.App.2d 761, 143 P.2d 940, 145 P.2d 561; Halstead v. Paul, 129 Cal.App.2d 339, 340, 277 P.2d 43. It was therefore not error to refuse to...