Lamoreux v. San Diego & Arizona Eastern Ry. Co.

Decision Date28 May 1957
Citation48 Cal.2d 617,311 P.2d 1
CourtCalifornia Supreme Court
PartiesFannle M. LAMOREUX, Plaintiff and Appellant, v. SAN DIEGO AND ARIZONA EASTERN RAILWAY COMPANY (a Corporation) et al., Defendants and Appellants; Union Sugar Company (a Corporation), Cross-Defendant and Respondent. L. A. 24271.

David M. McGahey, Palm Springs, for plaintiff and appellant.

Horton & Knox and Reginald L. Knox, Jr., El Centro, for defendant and appellant.

Dickenson, Sattinger & McKee and Richard A. McKee, El Centro, for respondent.

GIBSON, Chief Justice.

Plaintiff's husband, who was employed by the Union Sugar Company, was killed when his automobile was struck at a railroad crossing by a train operated by San Diego and Arizona Eastern Railway Company. She sued both Union Sugar Company, hereinafter called Employer, and the railway company, hereinafter called Railway, for damages for the wrongful death of her husband. 1

Before defendants appeared in this action, plaintiff filed an application for workmen's compensation with the Industrial Accident Commission. Thereafter, Employer, its insurance carrier and plaintiff filed with the commission an agreement in which plaintiff released Employer and its insurance carrier from all claims she had against them on payment of the sum of $3,500. The settlement was approved by the commission.

An amended complaint, which did not name Employer as a defendant, was served on Railway, and it answered, pleading as one of its defenses that the release of Employer discharged Railway. At the same time, Railway filed a cross-complaint against Employer alleging that it had agreed in writing to indemnify Railway for any losses resulting from the use of the crossing and requesting judgment against Employer in any amount which plaintiff might recover in her action against Railway. A direction for dismissal with prejudice of the action against Employer, signed by plaintiff, was thereafter filed.

The case proceeded to trial on the amended complaint and the cross-complaint. A verdict for $20,000 was rendered in favor of plaintiff against Railway, and a separate verdict in the same amount was rendered in the cross-action in favor of Railway against Employer. Plaintiff has appealed from an order granting a new trial in the main action, and Railway has appealed from an order granting a new trial in the cross-action. Railway also filed a separate notice of appeal from the verdict and judgment in favor of plaintiff in the main action. It appears, however, that no judgment was entered, and, since no appeal lies from the verdict, the attempted appeals from the verdict and judgment are dismissed. Code Civ.Proc. § 963; Sokolow v. City of Hope, 41 Cal.2d 668, 669, 262 P.2d 841.

Plaintiff claims that the notice of motion for a new trial was defective, but since no objections were raised when the motion was made and decided the claimed defects in the notice were waived and may not be urged on appeal. Secreto v. Carlander, 35 Cal.App.2d 361, 363-364, 95 P.2d 476; see Bauer v. Helene Curtis Industries, Inc., 117 Cal.App.2d 66, 68-69, 254 P.2d 931; 3 Witkin, California Procedure (1954) 2069-2070; cf. Starkweather v. Eddy, 196 Cal. 73, 75, 235 P. 734.

The trial court in advising the jury on the doctrine of last clear chance gave the instruction which was recently held erroneous in Brandelius v. City and County of San Francisco, 47 Cal.2d 729, 306 P.2d 432, and in accordance with the holding in that case the order granting a new trial in the main action must be affirmed. It appears to be conceded that the granting of a new trial in the main action, if proper, warranted the granting of a new trial in the cross-action.

While the order granting a new trial must be affirmed for the reason stated, it is appropriate for us to pass upon other questions of law presented on appeal which may be necessary to a final determination of the case. Code Civ.Proc. § 53.

Defendants contend that the agreement releasing Employer operated to release Railway as joint tort feasor, and that the dismissal with prejudice of the action against Employer discharged Railway of all liability to plaintiff.

The 'Compromise and Release Agreement' executed by Employer, its insurance carrier and plaintiff was authorized by the provisions of sections 5000-5004 of the Labor Code. 2 The agreement recites that the parties desire to compromise and settle all liability of Employer and its insurance carrier, including the liability of Employer for alleged serious and wilful misconduct, and to obtain approval of the settlement by the Industrial Accident Commission. As part of the agreement there was submitted to the commission an agreed statement of facts, which may be summarized as follows: Plaintiff's husband, who was employed by Union Sugar Company as a carpenter, was killed as a result of a collision between an automobile driven by decedent and a train owned by Railway. On the date of decedent's death he performed services for Employer in the usual course of his employment, and his workday terminated at 11 a. m. He was on his way to his home and was driving his own automobile when the collision occurred at approximately 11:15 a. m. The accident did not occur on the premises or any approach thereto owned by, or under the control of, Employer, and decedent was performing no service incidental to his employment and was not being furnished transportation by Employer at the time of his death. (Railway alleged in its answer and in its cross-complaint that decedent was using the crossing in the course of his employment when the accident occurred which caused his death.) Railway had previously been engaged in raising the grade of its tracks at the crossing where the accident occurred and had dumped considerable loose dirt on the tracks. Decedent's car was stopped by the loose dirt and was then struck by the train. In support of her claim for compensation for wilful misconduct, plaintiff had alleged that Employer had dumped the loose dirt on the tracks, but, after further investigation, she was satisfied that the evidence would not support that allegation.

The agreement provided that, upon approval by the commission, plaintiff would be paid the sum of $3,500 'in full satisfaction and release of said claims (including any claim for serious and wilful misconduct against said employer) arising under the Workmen's Compensation, Insurance and Safety Laws of the State of California.' Plaintiff further agreed to release and discharge Employer from all claims and causes of action, known or unknown, arising from the injury, and to execute and cause to be filed a dismissal with prejudice of the present action for damages insofar as it related to Employer.

In support of its contention that it is liable, if at all, as a joint tort feasor, Railway relies upon allegations in the original complaint that Employer and Railway were 'jointly engaged in raising the grade' at the crossing, and that 'they so negligently and carelessly performed such work' that it constituted a trap for motorists using the crossing. The amended complaint omits Employer as a defendant and contains no allegations connecting Employer with the accident.

Where a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation. Wennerholm v. Stanford Univ. Sch. of Med., 20 Cal.2d 713, 716, 128 P.2d 522, 141 A.L.R. 1358; Gaglione v. Coolidge, 134 Cal.App.2d 518, 523, 286 P.2d 568; Hicks v. Corbett, 130 Cal.App.2d 87, 89, 278 P.2d 77; Lee v. Hensley, 103 Cal.App.2d 697, 709, 230 P.2d 159. However, a party should be allowed to correct a pleading by omitting an allegation which, it appears, was made as the result of mistake or inadvertence. Meyer v. State Board of Equalization, 42 Cal.2d 376, 386, 267 P.2d 257; see Tognazzi v. Wilhelm, 6 Cal.2d 123, 127, 56 P.2d 1227; cf. Jackson v. Pacific Gas & Electric Co., 95 Cal.App.2d 204, 208-212, 212 P.2d 591, (indicating that great liberality should be exercised under Code Civ.Proc. § 473 in permitting amendments to correct mistakes). The agreed statement of facts presented to the Industrial Accident Commission recites that plaintiff, after further investigation, became satisfied the evidence would not support the allegation that the loose dirt had been dumped on the tracks by Employer. Section 472 of the Code of Civil Procedure provides that any pleading may be amended once by the party as a matter of right at any time before answer or demurrer is filed. The original complaint was not served on Railway, and no answer or demurrer to that pleading was filed by either Employer or Railway. Under all the circumstances, we are of the view that plaintiff is not bound by the allegations of the original complaint which were omitted from the amended pleading.

As we have seen, Railway has alleged that the decedent was using the crossing in the course of his employment when the accident occurred, and it is plaintiff's position that the accident was within the workmen's compensation provisions of the Labor Code. On the other hand, the compromise agreement recites facts which, although set forth for the purpose of compromise only, seem to show that the injury was not suffered in the course of the decedent's employment, and Railway now argues that the accident was not industrial in character. No testimony has been called to our attention which would indicate that Employer's liability to plaintiff, if any, extended beyond the workmen's compensation provisions, and the facts recited in the compromise agreement do not establish that Employer was negligent or guilty of wilful misconduct or liable to plaintiff on any theory. However, we do not know what evidence will be presented at the new trial, and, to assist the parties and the court, we shall discuss the case, first, on the assumption that the...

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