Dwan v. Dixon

• Decision Date: 16 May 1963
• Docket Number: No. 20835,20835
• Citation: 216 Cal.App.2d 260,30 Cal.Rptr. 749
• Parties: Lewis J. DWAN, Administrator of the Estate of Geraid Joseph Loftus, Scott Loftus and Bard Loftus, minors, by their guardian ad litem, Lewis J. Dwan, Plaintiffs and Appellants, v. Frank A. DIXON and Marie Dixon, Defendants and Respondents. Civ.
• Court: California Court of Appeals Court of Appeals

Page 749

30 Cal.Rptr. 749

216 Cal.App.2d 260

Lewis J. DWAN, Administrator of the Estate of Geraid Joseph Loftus, Scott Loftus and Bard Loftus, minors, by their guardian ad litem, Lewis J. Dwan, Plaintiffs and Appellants, v. Frank A. DIXON and Marie Dixon, Defendants and Respondents.

Civ. No. 20835.

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

May 16, 1963.

Hearing Denied July 10, 1963.

Morgan, Beauzay & Holmes, San Jose, for appellants.

Crist, Peters, Donegan & Brenner, Palo Alto, for respondents.

SHOEMAKER, Justice.

This is an appeal by plaintiff Lewis J. Dwan, as administrator of the estate of Gerald Joseph Loftus, and as guardian ad litem for Scott and Bard Loftus, from a judgment of dismissal entered upon the sustaining without leave to amend of the defendants Dixon's general demurrer to his amended complaint for wrongful death and personal injuries.

The action is grounded on an automobile accident that occurred November 1, 1959. Scott Loftus and his parents were riding in a car which collided with a car driven by defendant Froberg, with the result that the parents were killed and Scott seriously injured. The original pleading averred that Froberg was driving while drunk and the defendants Dixon were charged by the allegations of paragraph II with liability in that they had 'procured the intoxication of William Froberg and knowingly permitted him to drive knowing him to be an incompetent, intoxicated driver,' and by paragraph III thereof that Froberg was the agent, servant and employee of these defendants and was acting within the scope of his employment at the time of the accident.

On November 20, 1961, twenty-one months after commencement of the action and two years after the accident, defendants Frank and Marie Dixon submitted written interrogatories requesting that plaintiffs divulge each and every fact upon which the allegations of paragraphs II and III of the complaint were based. On December 7, 1961, plaintiffs replied to these interrogatories, admitting that no facts had yet appeared which indicated the existence of an employer-employee relationship between defendants Dixon and Froberg. In regard to the allegations of paragraph II, plaintiffs stated that the testimony introduced at Froberg's criminal trial was to the effect that defendants Dixon had actively participated in the procuring of alcoholic beverages despite the fact that they knew Froberg had arrived at their home by means of driving an automobile, and further knew from past association with Froberg that he was inclined to drink heavily and be strongly influenced by alcohol, although such influence might not be revealed by his demeanor. Plaintiffs also stated that the testimony at the criminal trial revealed that Froberg's blood contained .22% alcohol immediately after the collision and that he had consumed no additional alcoholic beverages after leaving the Dixon home.

On December 29, 1961, defendants Dixon demurred generally to the original complaint. On the same day, these defendants also filed a motion to strike paragraphs II and III of the complaint on the grounds that the allegations of the former paragraph were sham and irrelevant, and the allegations of the latter were sham and without foundation in fact.

On April 3, 1962, plaintiffs filed a memorandum in opposition to the demurrer and to the motion to strike. Plaintiffs therein stated that pretrial discovery measures (which included the taking of the Dixons' depositions) had failed to establish the existence of any employer-employee relationship between defendants Dixon and Froberg, and that plaintiffs therefore did not resist the motion to strike paragraph III. In regard to paragraph II, plaintiffs denied that the allegations therein set forth were sham, irrelevant, or subject to general demurrer. Plaintiffs' memorandum was supported by the affidavit of their attorney, Robert Morgan, to the effect that the allegations of paragraph II were founded upon sworn testimony given in the case of People v. Froberg (No. 35676 in the files of the Superior Court of Santa Clara County). This testimony, which is set forth at length in the affidavit, may be summarized as follows: Defendant Froberg commenced drinking sometime during the afternoon of October 31, 1959, and continued to consume alcoholic beverages until 7 a. m. on the morning of November 1, 1959, at which time he went to bed and slept for approximately four hours. He then arose and drove to the home of friends, where he drank one beer. Froberg and his three companions then decided that they would go for a drive. Froberg took the wheel of the car and drove from San Francisco toward Los Gatos, stopping once for a hamburger and a beer. At the Los Gatos sign, a member of the party stated that Frank and Maries Dixon lived there, and suggested that they pay them a visit. Froberg then drove to the Dixon home, arriving there at 4:00 or 4:30 in the afternoon. Frank Dixon, although aware that Froberg had been driving, and that his demeanor did not always reveal his state of intoxication, then went to a nearby liquor store and purchased a pint of whiskey and two six-packs of beer. He served Froberg a mixed drink and possibly also a beer. In addition, one of Froberg's companions offered him a straight shot of whiskey, which he drank. Froberg and his party subsequently returned to their car, and Froberg again took the wheel. He then asked Frank Dixon for directions to the Bayshore Highway. Upon receiving these directions, he drove off and thereafter collided with the Loftus car. Although Froberg consumed no further alcoholic beverages after leaving the Dixon home, his blood alcohol content was .22% shortly after the accident.

On April 10, 1962 the court entered its order striking paragraph III pursuant to stipulation of the parties...