Jackson v. Pacific Gas & Elec. Co.
| Decision Date | 20 December 1949 |
| Citation | 95 Cal.App.2d 204,212 P.2d 591 |
| Court | California Court of Appeals Court of Appeals |
| Parties | JACKSON v. PACIFIC GAS & ELECTRIC CO. Civ. 7660. |
L. C. Smith, Redding Pugh & Pugh and Wm. H. Stoffers, Red Bluff, for appellant.
Robert H. Gerdes, John J. Briare, and W. R. Dunn, San Francisco, Carr & Kennedy, Redding, for respondent.
The plaintiff has appealed from a judgment which was rendered against him pursuant to an order sustaining a demurrer to the second amended complaint without leave to amend the pleading, and from an order refusing to permit the filing of a third amended complaint, application for which was made, upon due notice, under Section 473 of the Code of Civil Procedure.
This is a suit for damages for personal injuries received by plaintiff when a derrick attached to a truck upon which plaintiff was riding came in contact with the high-power electric wires maintained by the defendant. Plaintiff was seriously injured by the electricity which passed through his body. The original complaint inadvertently alleged that plaintiff was employed by and under the supervision and control of defendant, thus barring him from maintaining this action, since the Workmen's Compensation Act, Labor Code, sec. 3601, provides for the exclusive remedy when the relationship of employer and employee exists between the parties. Before the defendant made an appearance plaintiff filed an amended complaint under Section 472 of the Code of Civil Procedure, omitting all reference to his employment by the defendant. To that complaint the defendant filed a demurrer which was sustained with permission to amend the pleading. Plaintiff filed a second amended complaint in which he alleged that, at the time of the accident by was 'the employee of E. B. Bishop Company', but that, pursuant to a contract between that company and the defendant, the employees of the Bishop Company were 'acting under the immediate direction, supervision and control of defendant', and that plaintiff was injured through the negligence of Frank Gerhard who was operating the truck with the attached crawler-crane, upon which plaintiff was riding at the time of the accident. A demurrer to that complaint was sustained without leave to amend the pleading. In sustaining that demurrer without leave to amend, the court asserted that it had a right to consider the allegations of the original complaint which contained a statement against interest with regard to plaintiff's employment, which he would not be permitted to contradict in the amended pleading and which previous statement precluded him from maintaining this action. In effect, the court held that the plaintiff was bound by his inadvertent statement against interest in his original complaint, regardless of his effort to correct the alleged mistake and to explain the reasons therefor in an amended pleading.
The plaintiff then moved, upon due notice, under Section 473 of the Code of Civil Procedure, to modify and set aside the last order sustaining the demurrer without leave to amend, and to permit him to file a third amended complaint, a copy of which was attached to the notice of motion. That proposed verified amended complaint was presented at the hearing and is endorsed, 'Filed July 19, 1948.' Upon hearing, the court denied the motion to modify the last order sustaining the demurrer to the second amended complaint, and denied the application to file the proposed third amended complaint, on the stated ground that 'plaintiff did plead himself out of court' in his various attempts to amend his complaint. From the judgment sustaining the demurrer to the second amended complaint and denying the application to file a third amended complaint the plaintiff has appealed as previously stated.
The appellant contends that the second amended complaint states a valid cause of action, and that the court erred in sustaining the demurrer thereto, especially without leave to amend the pleading, and that the court abused its discretion in denying his application under Section 473 of the Code of Civil Procedure for modification of the judgment sustaining the demurrer and denying him permission to file the third amended complaint.
An appeal lies from an order sustaining a demurrer without leave to amend, even though 'no request to amend such pleading was made.' Code of Civil Procedure, sec. 472c; MacIsaac v. Pozzo, 26 Cal.2d 809, 816, 161 P.2d 449.
The original complaint clearly failed to state a valid cause of action for the reason that it stated that, at the time of the accident, the plaintiff was, in effect, an employee of the defendant. It is true that when an employee of the defendant sustains injuries in the course of his employment which is compensable under the Workmen's Compensation Act, that act provides his exclusive remedy, and he may not maintain an action for the tort in any other tribunal. Fitzpatrick v. Fidelity and Casualty Co. of New York, 7 Cal.2d 230, 60 P.2d 276; Wessell v. Barrett, 62 Cal.App.2d 374, 144 P.2d 656; 27 Cal.Jur. 262, sec. 8; Labor Code, sec. 3601.
There is an exception to the foregoing rule. If the employer 'fails to secure the payment of compensation' for such injuries, the claimant may maintain an action for the tort independently of the Workmen's Compensation Act. Section 3706 provides that: 'If any employer fails to secure the payment of compensation, any injured employee or his dependents may proceed against such employer by filing an application for compensation with the commission, and, in addition, may bring an action at law against such employer for damages, as if this division did not apply.'
The question of the relationship of the parties as employer and employee is ordinarily one of fact to be determined by the court from the evidence. An employee may be working in a dual capacity. If he is injured in the performance of services which are not compensable under the Workmen's Compensation Act, he may maintain an action for the tort independently of that act. Crockett v. Industrial Accident Commission, 190 Cal. 583, 213 P. 969; Wessell v. Barrett, 62 Cal.App.2d 374, 376, 144 P.2d 656; 27 Cal.Jur. 314, sec. 44. If the plaintiff was an employee of the Bishop Company and not an employee of the defendant, and he was not injured in the course of any employment by the defendant, we assume he would have the right to maintain this action independently of the Workmen's Compensation Act. In the proposed third amended complaint the plaintiff clearly attempted to allege facts which do not give the Industrial Accident Commission jurisdiction. If that complaint fails to do so then we concede that the court properly denied him leave to file that complaint. But we think that pleading as it stands does not confer jurisdiction on the Industrial Accident Commission.
It is a well-established principle that pleadings and amendments thereto should be liberally allowed and construed with the object to afford every litigant his day in court and to render substantial justice between the parties. LeCyr v. Dow, 30 Cal.App.2d 457, 462, 86 P.2d 900; Roland v. Kreyenhagen, 18 Cal. 455, 457; 21 Cal.Jur. 53, sec. 30.
We are of the opinion the court abused its discretion in sustaining the demurrer to the second amended complaint without leave to amend the pleading, and in denying plaintiff the privilege of filing his proposed third amended complaint.
We think the court erred in assuming upon demurrer to the second amended complaint that it had a right to consider the allegations of the original complaint to the effect that plaintiff was an employee of the defendant, and to determine his relationship in that respect by reference thereon on the theory that he was bound by that statement, when in fact that statement was withdrawn and abandoned by the filing of the amended complaints which superseded the original complaint. It is true that under certain circumstances a court may consider a pleading in the records to which an amended pleading has been filed. For instance, when a demurrer or motion to strike out a pleading on the ground that the amended pleading does not change the original one or that it is frivolous or sham the court may consider the original pleading to determine that matter. Neal v. Bank of America National Trust and Savings Ass'n., 93 Cal.App.2d 678, 209 P.2d 825.
The province and purpose of the law is to ascertain the real facts and to administer justice in the light of such facts. It would seem to be a travesty on justice if a litigant had inadvertently, ignorantly and erroneously stated as a fact, without fault on his part, an admission against interest, if he were to become bound thereby and would not be permitted upon proper showing to correct the innocent error and assert the true fact in that regard. We do not concede that is the law. It has been held that when an original pleading contained an admission against interest, the filing of an amended pleading superseded the original one and that the original pleading could not be used as evidence or be considered by the court. Ralphs v. Hensler, 114 Cal. 196, 45 P. 1062; Miles v. Woodward, 115 Cal. 308, 316, 46 P. 1076; 49 C.J. 558, sec. 773; 41 Am.Jur. 507, sec. 313.
In the Ralphs case, supra, a judgment for plaintiff was reversed on appeal because the court admitted in evidence an original answer containing an admission against interest which had been superseded by an amended answer. The Supreme Court said [114 Cal. 196, 45 P. 1063]: '* * * The amended answer of defendant filed in pursuance of the leave of court thus obtained was an answer which omitted all of the averments which the defendant had theretofore solemnly made, and which this court had held to amount to a ratification.'
Quoting with approval from Mecham v. McKay, 37 Cal. 154, the Supreme Court further said: 'It was early held * * * that an original pleading...
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