Lauder v. Jobe

• Decision Date: 24 April 1968
• Citation: 68 Cal.Rptr. 63,261 Cal.App.2d 539
• Court: California Court of Appeals Court of Appeals
• Parties: Alfred E. LAUDER, Plaintiff and Respondent, v. Wallace JOBE, Defendant and Appellant. Civ. 31380.

Page 63

68 Cal.Rptr. 63

261 Cal.App.2d 539

Alfred E. LAUDER, Plaintiff and Respondent, v. Wallace JOBE, Defendant and Appellant.

Civ. 31380.

Court of Appeal, Second District, Division 5, California.

April 24, 1968.

Kean & Engle, by Joseph A. Kean, Los Angeles, for defendant and appellant.

McBain & Morgan, by Elmer O. Docken, Los Angeles, for plaintiff and respondent.

STEPHENS, Associate Justice.

This appeal arises out of a double rearend accident that occurred on the southbound portion of the Harbor Freeway. For convenience in this opinion, Wallace Jobe will be inferred to as defendant Jobe or Jobe, and Alfred E. Lauder will be referred to as plaintiff Lauder or Lauder, although, as will become apparent below, we are actually dealing with consolidated cross-actions. Plaintiff Lauder's 1959 Impala Chevrolet was traveling southbound in the lane next to the 'fast' lane. ¹ He was following a Cadillac belonging to his friend, Eldridge. Apparently a metal box or frame fell off of a truck of one Summers that had also been traveling in the number two lane. The driver of the truck had stopped in that lane, and seemed to be in the process of retrieving the metal object when the truck came into Eldridge's view. Eldridge managed to avoid the truck by passing it on the left, but Lauder struck the rear of the truck. The testimony is in dispute as to whether Lauder swerved partially into the fast lane to avoid the truck, and still contacted it, or whether he stayed completely within his own lane and hit it directly from behind. Jobe's 1959 Impala was traveling southbound on the freeway, somewhat behind Lauder and to Lauder's left, in the number one lane. After the impact between Lauder's vehicle and the truck, the Jobe vehicle struck Lauder's. The evidence again is in dispute as to just how long an interval there was between the two collisions, and consequently how far behind Lauder, Jobe actually was at the time of the initial impact. The evidence is also in dispute as to whether the Jobe vehicle struck the Lauder vehicle in the number one or number two lane. As a result of the accident, extensive damage was done to both the Lauder and Jobe vehicles, and both drivers suffered physical injuries.

In August of 1963 (the accident having occurred in May of that year), Lauder filed an action against Jobe in the municipal court. The claim was for $1,448 for the loss of his automobile, $62 for medical bills, and $3,000 for general damages. In September of that year, Jobe filed an action in the superior court. This cause of action arose out of the same accident, and was filed against Lauder and Summers. Damages claimed were well in excess of the superior court jurisdictional minimum. After the filing of the Jobe action, by stipulation of the parties the prayer for general damages in the Lauder action was raised to $10,000, and the matter was transferred to the superior court, to be consolidated with the Jobe action. By stipulation of the parties, the Jobe complaint was deemed to be a cross-complaint in the Lauder case. Pretrial was had in both matters, and a pretrial conference order issued. The order incorporated the joint pretrial statements of counsel. The pretrial statement of plaintiff Lauder specifies that he was in fact seeking damages in the amount claimed in his original complaint filed in the municipal court, and hence less than the minimum superior court jurisdictional amount. The cause came on for trial and resulted in a finding by the jury, after a default was entered against defendant Summers, that both Jobe and Lauder were guilty of negligence that proximately caused the accident, but that defendant Jobe had the last clear chance to avoid the accident. A judgment was entered in favor of plaintiff Lauder against Jobe in the amount of $1,225. Defendant Jobe appeals from the judgment.

Issues

Three contentions are raised in this appeal: (1) that the court was without jurisdiction in that the pretrial order reduced the total damages claimed by Lauder to less than the minimum jurisdictional amount of the superior court; (2) that the plaintiff failed to prove any property damages and therefore it was improper to instruct the jury on this issue; and (3) that it was improper to instruct the jury on the doctrine of last clear chance. We find no error, and affirm the judgment.

Jurisdiction

Rule 216 of the California Rules of Court ² makes clear that the pretrial conference order supersedes the pleadings and controls the subsequent course of the case in the usual instance. Defendant argues that since this is so, once the pretrial conference order incorporated the plaintiff's pretrial statement which indicated that he was not claiming damages equal to the jurisdictional amount, the superior court lost jurisdiction over the matter. This question is not properly before us, for the record shows that it is inaccurate to view the Lauder v. Jobe action as separate from that of Jobe v. Lauder et al. We are confronted with a Lauder v. Jobe complaint and a Jobe v. Lauder et al. cross-complaint following the consolidation order. Since the cross-complaint alleges damages above the jurisdictional amount, it is clear that no matter what the amount of the prayer is in the original complaint, the matter was properly in the superior court. (1 Witkin, California Procedure, Jurisdiction, § 23, subds. (2) and (3).) ³

Property Damage

Defendant contends that it was error to charge the jury on the issue of property damage as it pertained to the claim of plaintiff Lauder, in that the proof was insufficient on this issue to warrant an instruction. The property damage was, of course, that allegedly occurring to the Lauder Chevrolet automobile. Proof of damage to the car consisted of testimony that the car was purchased new in 1959 by Lauder, and that he paid approximately $3,200 for it. He testified that the car was in excellent condition at the time of accident; that he was particularly careful to maintain it because it was used in research he was doing on an improved carburetion system. His testimony also indicated that whatever damage was done by the collision with the Summers' truck prior to being struck by Jobe's vehicle was minimal. Finally, there was testimony that the car was a total wreck after the accident, and that it was sold for junk for $152. In situations dealing with personal property damaged beyond repair, the cases are in conflict as to whether this is sufficient evidence of value to warrant presenting the issue to the jury. ⁴ In Sanders v. Austin, 180 Cal. 664, 182 P. 449, it was held that, in the absence of contrary testimony, proof of purchase price is sufficient upon which to base a damage recovery. (See also Martin v. State Farm Mutual Auto. Ins. Co., 200 Cal.App.2d 459, 470--472, 19 Cal.Rptr. 364.) But in Smith v. Calley, 103 Cal.App. 735, 284 P. 974, it was held that the cost of a vehicle is not an adequate value on which to base a measure of recovery when an extended period of time has elapsed between purchase and damage, and that in the absence of adequate proof of value immediately prior to damage, there can be no recovery. We prefer to apply the Sanders rule to the instant action. Although we acknowledge that in Sanders, which was a decision of the Supreme Court, the car was probably purchased much closer in time to the accident than is the situation in the case before us, there was in the instant case no objection to the testimony as to purchase price, and no evidence presented by the defense to indicate that the facts as to the value of the car were different than those as stated by the plaintiff. Given the fact that a...