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.

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 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 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 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, N. F. Vinatieri.'

This does not charge a fraud or a fraudulent concealment. Primarily this is so because it does not allege that defendant, at the time of making his report to the police, knew that his statement that southbound cars had stopped for him was untrue, or that he did not believe it to be true, or that the statement was not warranted by the information he had. See Civ.Code, § 1572; 23 Cal.Jur.2d § 11, p. 27. The variation between the statements to the police and the trial testimony did not show falsity of the original statements, for the testimony amounted only to an admission of possible mistake in what the witness had originally reported. A bare charge of falsity is not enough. Harding v. Robinson, 175 Cal. 534, 539, 166 P. 808; Morrell v. Clark, 106 Cal.App.2d 198, 201, 234 P.2d 774. Nor is the bald assertion of concealment of a cause of action sufficient. Mere non-disclosure is not concealment in the absence of a fiduciary relationship, Simons v. Edouarde, 98 Cal.App.2d 826, 829, 221 P.2d 203; there must be some affirmative act calculated to obscure the existence of a cause of action and it must be factually alleged. 54 C.J.S., Limitations of Actions, §§ 206, 377, pp. 226-227, 514; 2 Witkin on California Procedure, p. 1334, § 356; Bank of America National Trust & Savings Ass'n v. Williams, 89 Cal.App.2d 21, 25, 200 P.2d 151. So far as intent is concerned it is not alleged that defendant expected or intended that plaintiff should refrain from suing him. His original statement merely amounted to an assertion that he had a defense to any charge of negligence, criminal or civil.

The report made to the police by defendant was not one upon which plaintiff had a right to rely. Her counsel invokes § 484(a), Vehicle Code, which provides: 'The driver of a vehicle, other than a common carrier vehicle, involved in any accident resulting in injuries to or death of any person shall within twenty-four hours after such accident make or cause to be made a written report of such accident to the California Highway Patrol, except when such accident occurs within a city such report shall be made within said twenty-four hours to the police department of such city.' The report, it will be noted, must be in writing. Section 488 of the same code provides that all required accident reports and supplemental reports shall be without prejudice to the individual so reporting and shall be for the confidential use of the Department of Motor Vehicles and the California Highway Patrol, except that certain facts, such as names and addresses, parties and witnesses registration numbers and descriptions of vehicles, etc., may be disclosed to any person having a proper interest therein. It further provides: 'No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident'. Section 488.5 contains this paragraph: 'Upon the termination of any criminal proceedings arising out of a traffic accident, or upon the determination by the proper authorities not to file any criminal charges as a result of such accident, but in all cases upon the termination of a period of six months after the date of the accident, all of the factual data gathered by the officers, together with the signed statements of all witnesses, except the reports signed by the drivers involved in the accident, shall be made available upon request to the interested parties named in Section 488.'

Appellant relies upon cases such as Pashley...