Hesse v. Vinatieri

• Citation: 145 Cal.App.2d 448,302 P.2d 699
• Court: California Court of Appeals
• Decision Date: 26 October 1956
• Parties: Clara HESSE, Plaintiff and Appellant, v. N. F. VINATIERI et al., Defendants and Respondents. Civ. 21916.

Page 699

302 P.2d 699 145 Cal.App.2d 448 Clara HESSE, Plaintiff and Appellant,
v.
N. F. VINATIERI et al., Defendants and Respondents. Civ. 21916. District Court of Appeal, Second District, Division 2, California. Oct. 26, 1956.
Rehearing Denied Nov. 19, 1956.
Hearing Denied Dec. 19, 1956.

Page 701

[145 Cal.App.2d 449] David I. Lippert, Los Angeles, for appellant.

Parker, Stanbury, Reese & McGee, Los Angeles, for respondents.

ASHBURN, Justice.

Plaintiff, having been injured on September 11, 1951, sued defendants Vinatieri and Ducommun Metals and Supply Co. on November 7, 1955. She attempted to excuse the delay and the bar of the statute of limitations, Code Civ.Proc., § 340, subd. 3, upon the ground of fraudulent concealment by Vinatieri of the existence of a cause of action against him. Demurrer to her second [145 Cal.App.2d 450] amended complaint was sustained with leave to amend within ten days. Plaintiff elected to stand upon her complaint. Judgment of dismissal was entered pursuant to Code of Civil Procedure, § 581, subdivision 3, and plaintiff appeals therefrom.

The complaint alleges that plaintiff was standing on the southwest corner of Eighth and Alameda Streets in the city of Los Angeles; that defendant Vinatieri, who was driving a car owned by Ducommun Metals and Supply Co., as its agent, so negligently drove same as to cause one Seemann 'to depart from the roadway and run upon the sidewalk where plaintiff was standing and to strike plaintiff with great force and violence.' By way of excuse for delay in suing Vinatieri plaintiff alleges that she brought action against Seemann alone, that the case came on for trial, after certain excusable delays, on September 28, 1955, and resulted in a verdict for defendant Seemann. She alleges that Vinatieri was a witness at that trial and she then learned for the first time of the fraud he had perpetrated upon her; that had she known the true facts she would have sued him, as well as Seemann, on August 6, 1952.

In her effort to charge fraud to Vinatieri she alleges that 'said N. F. Vinatieri and Ulrich Max Seemann had a legal duty to report the facts of the said accident to the Los Angeles Police Department under the provisions of Section 484 of the California Vehicle Code and did so report at the time of the said accident.' She relied on said reports 'as made to the Los Angeles Police Department' by Vinatieri and Seemann and concluded that the accident was solely due to the negligence of Seemann, as the police themselves had done. Vinatieri's report to the police is alleged to have said that he was northbound on Alameda and making a left turn to go west on Eighth Street;

Page 702

that the signal was green for him and the southbound traffic had stopped to yield the right of way; that after he had crossed two southbound lanes he saw a southbound car next to the curb on Alameda about 50 feet north of the intersection which was going about 30 miles an hour, that he saw it was not going to stop so he stopped and the other car swerved to the right, struck the curb and stop sign and a woman standing on the southwest corner. 'That plaintiff believed and relied upon the said statements of defendant, N. F. Vinatieri, as to the cause of the accident and particularly upon his statement that other south bound traffic had stopped to yield to him.' The [145 Cal.App.2d 451] complaint further alleges that at the trial one of the principal issues was whether traffic had stopped to yield the right of way to said Vinatieri; that he then testified that he could not remember whether opposing traffic had stopped or was in motion, could not say whether southbound cars passed through the intersection prior to the time he started his left turn, and further stated that such southbound cars may have been rolling slowly. This testimony, according to plaintiff, 'established the negligence of N. F. Vinatieri.' It is further alleged: 'That the said N. F. Vinatieri falsely stated the facts to the Police Department, as aforesaid, and concealed from it and plaintiff the facts thereafter stated in his said testimony in said trial. That such false statement and concealment were made and effected with intent to exonerate himself and his co-defendants from any charge of negligence as joint tort-feasors with said Ulrich Max Seemann or otherwise and plaintiff was thereby misled and deceived by the said statement of defendant,...