Eads v. Marks

• Decision Date: 28 October 1952
• Court: California Supreme Court
• Parties: EADS et al. v. MARKS et al. L. A. 22357

Page 257

249 P.2d 257

39 Cal.2d 807

EADS et al. v. MARKS et al.

L. A. 22357.

Supreme Court of California

Oct. 28, 1952.

Robert H. Green, Los Angeles, for appellants.

Jennings & Belcher and George M. Henzie, Los Angeles, for respondent.

CARTER, Justice.

Plaintiffs, Rand Edison Eads, a two year old minor child, through his father and guardian ad litem, Harold Madison Eads, and Harold Madison Eads, sued defendant Creameries of America (sued as Doe One) for damages for personal injuries allegedly suffered by said minor child because of the negligence of defendant, its agents, servants and employees.

Defendant's (Creameries of America) general and special demurrer to plaintiffs' first amended complaint was sustained without leave to amend and judgment thereon was entered in favor of defendant.

In plaintiffs' amended complaint it was alleged (in part): 'That at all times from on or about December 20, 1947 continuously to August 12, 1949, the plaintiffs, Harold Madison Eads, and (sic) been and was a customer of defendants, and at all times there had been a delivery service maintained and conducted by defendants wherein defendants had supplied and delivered to plaintiffs at plaintiffs' said place of residence, milk, cream, butter, eggs and other dairy products for a valuable consideration and at the prices established by defendants therefor.

'That on or about December 1, 1948, at which time the said plaintiff, Rand Edison Eads, was of the approximate age of one year, the defendants and each of them were informed by the plaintiff, Harold Madison Eads, and by Lenore Eads, the wife of said plaintiff, that no dairy products, glass containers, milk or milk bottles were to be left at the said residence of plaintiffs except in the refrigerator in the house, and that all empty milk bottles and glass containers for the defendants would be left within the house. That at said time plaintiff, Harold Madison Eads, and his said wife informed the defendants that if said dairy products or the containers therefor were left within the reach of the minor child that said minor child might be injured by picking up, dropping or tripping over such dairy products and/or the glass containers therefore (sic), and further informed the defendants and each of them that in the absence of plaintiffs, empty glass containers would be placed upon the back porch of said residence with a memorandum or note stating that no milk or dairy products were to be left; and the defendants and each of them (agreed to said request and) informed the plaintiff, Harold Madison Eads, and his said wife that none of said products or glass containers therefor would be left except within said refrigerator, and that empty glass containers would be removed by defendants from the back porch, and not left at said residence upon the regular delivery times; that on or about August 12, 1949, defendants and each of them negligently, carelessly and wrongfully placed, deposited, left, and permitted to remain a glass milk container upon the back porch of said residence, and the said minor plaintiff, picked up said container and fell off the (said) porch, causing the container to break within close proximity to his face; that as a direct and proximate result of the negligent and wrongful acts of the defendants the said Rand Edison Eads was caused to suffer severe and permanent injuries, pain and suffering, all to his damage in the sum of $25,000.00.'

Defendant demurred on the ground that the complaint did not contain facts sufficient to constitute a cause of action, and that it was uncertain in that it did not contain facts showing wherein any duty was owed to the minor plaintiff, in what manner any act or omission of defendant was a proximate cause of plaintiffs' injury, what consideration may have existed to support any agreement with any plaintiff for the removal of empty bottles, whether defendants are charged with placing or depositing the milk bottle on the porch or permitting one to remain there, whether the milk container involved was full (as delivered by defendant) or empty (as having been in the possession of plaintiffs), whether defendant is charged with permitting the milk bottle to remain on the porch and whether the time was a 'milk delivery time.'

The underlined portions of the complaint constitute the amendments made by plaintiffs. Although there is nothing in the record to substantiate the statement, plaintiffs contend that the amendments were made at the direction of the trial court upon the hearing and argument on the original complaint.

Plaintiffs have alleged an agreement made with defendant and, implicit therein, is the allegation that it was made expressly for the benefit of their minor child, the third party beneficiary thereof. Walsh v. Walsh, 42 Cal.App.2d 282, 285, 108 P.2d 760; Le Ballister v. Redwood Theatres, 1 Cal.App.2d 447, 36 P.2d 827. It is true that no consideration for the contract was alleged, but that was a deficiency which plaintiffs might have been able to supply by amendment. The consideration for such agreement may well have been the plaintiffs' promise to continue to buy dairy products from defendant rather than from another firm.

Assuming that there was a valid agreement for the benefit of plaintiffs' minor child, defendant next contends that plaintiffs have no cause of action in tort for the failure to perform. The same act may be both a tort and a breach of contract. L. B. Laboratories, Inc., v. Mitchell, 39 Cal.2d 56, 244 P.2d 385. Even where there is a contractual relationship between the parties, a cause of action in tort may sometimes arise out of the negligent manner in which the contractual duty is performed, or out of a failure to perform such duty. Green v. Hanson, 103 Cal.App. 430, 284 [39 Cal.2d 811] P. 1082; Jones v. Kelly, 208 Cal. 251, 280 P. 942; Wetzel v. Pius, 78 Cal.App. 104, 248 P. 288. Here, the duty of care arose by reason of the contract, and plaintiff has sued in tort for the breach of that duty. The contract is of significance only in creating the legal duty, and the negligence of the defendant should not be considered as a breach of contract, but as a tort governed by tort rules. Rushing v. Pickwick Stages System, 113 Cal.App. 240, 298 P. 150; Basler v. Sacramento, etc., Ry. Co., 166 Cal. 33, 134 P. 993. As was said in Peterson v. Sherman, 68 Cal.App.2d 706, 711, 157 P.2d 863, 866: 'It has been well established in this state that if the cause of action arises from a breach of a promise set forth in the contract, the action is ex contractu, but if it arises from a breach of duty growing out of the contract it is ex delicto. * * *' See, also, Jones v. Kelly, supra, 208 Cal. 251, 254-255, 280 P. 942. Where the cause of action arises from the breach of a contractual duty, the action is delictual notwithstanding that it also involves a...