McDonell v. American Trust Co.
| Decision Date | 21 January 1955 |
| Docket Number | No. 16054,16054 |
| Citation | 130 Cal.App.2d 296,279 P.2d 138 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Irene McDONELL and Warren McDonell, Plaintiffs and Appellants, v. AMERICAN TRUST COMPANY, Executor of the Estate of Hanna M. Vitenson, Deceased, Defendants and Respondents. |
Arthur D. Klang and Albert E. Polonsky, San Francisco, for appellant.
Sidney L. Weinstock, Roger Anderson, Harold J. Chase, San Francisco, for respondent.
Warren and Irene McDonell, husband and wife, brought this action against Hanna M. Vitenson, alleging that they were lessees of one of the ground floor stores of a multistoried building which belonged to defendant. They sought damages allegedly caused by water entering their store because of defects in the roof and roof drains, portions of the building reserved to the defendant lessor and under her sole control.
The major question is whether or not the second and the fourth counts stated causes of action. 1 The answer will be the same as to each because they differ only as to the dates and the nature and extent of the injuries received by Irene.
In the second count plaintiffs devoted a series of paragraphs to the statement of facts upon which they based their claim for actual damages, followed by a single paragraph in which they set forth their claim for punitive damages; summarized, respectively, as follows:
(1) Actual Damages. Plaintiffs were lessees of one of the ground floor stores of a multistoried building owned by defendant who had sole operation and control of the roof and roof drains, including the sole right of access to make repairs. Defendant knew of the defective condition of the premises and of the roof and the roof drains in January, 1952, and was notified of said defective condition by plaintiffs in April and May and by the city building inspector in Octobor; plaintiffs, in November, 1952, again demanded that defendant remedy said defective conditions. Although defendant knew 'that said defective conditions could cause damage and injury to the property and persons of the tenants,' she 'refused to remedy said defective conditions.' December 1, 1952, 'by reason of the wilful failure of the defendant to repair the premises as aforesaid, knowing that said defective conditions could cause damage and injury to the property and persons of the tenants therein,' water gathered on the floor of plaintiffs' store 'due to the defective condition of the premises as aforesaid' and plaintiff Irene McDonell, while carefully walking, slipped upon the floor. 'Due to the recklessness and wilful acts' of defendant, 'as hereinabove particularly alleged,' plaintiff was injured and has suffered damages in the sum of $1,500.
(2) Punitive Damages. 'In wilfully failing to repair' said defective condition of the premises with reference to the roof and roof drains 'after having received due notice of the dangerous condition thereof,' and 'having knowledge of the fact that said defective conditions could cause damage and injury to the property and persons of the tenants,' defendants were 'guilty of wilful misconduct in their wilful and wanton neglect for the safety and health of the plaintiffs,' and were also 'guilty of a conscious disregard to the persons, rights and property of the plaintiffs by continually failing and refusing to repair the defective conditions as aforesaid,' and Irene demands punitive damages in the sum of $1,500.
Plaintiffs in their opening brief interpret these allegations as stating that 'the landlord wilfully, consciously, intentionally and deliberately failed to keep the roof and drainwells in working condition, and failed and affirmatively refused to repair the same after notice of the defects' with 'a conscious, wilful and deliberate intention to injure and harm appellants'; tantamount to oppression and malice in fact, justifying punitive in addition to actual damages. 2
We do not so read the second count. The gist of the first part of the count (that which deals with actual damages) is that defendant, aware of the defective condition of the roof and drains and knowing they could cause damage, refused to repair them. Those facts do not spell an intentional tort (a conscious, deliberate intent to injure the plaintiffs) or conduct so recklessly disregardful of the rights of others (sometimes characterized as wanton or wilful misconduct) as would show the 'malice' in fact which the statute, Civ.Code, § 3294, requires as a predicate for punitive in addition to actual damages. (As to malice 'in fact,' see Davis v. Hearst, 160 Cal. 143, 161-164, 116 P. 530, and Wolfsen v. Hathaway, 32 Cal.2d 632, 647-651, 198 P.2d 1. For a discussion of the differing concepts of negligence, of wanton and reckless misconduct, and of wilful misconduct, see Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 869-870, 118 P.2d 465; Weber v. Pinyan, 9 Cal.2d 226, 230-238, 70 P.2d 183, 112 A.L.R. 407; Meek v. Fowler, 3 Cal.2d 420, 426, 45 P.2d 194. In the Donnelly case the court cited with approval section 500 of the Restatement of the Law of Torts, concerning conduct which the court designated as wanton and reckless misconduct: The second count falls considerably short of alleging any such violation of duty when it merely pleads that defendant, aware of the defective condition and that such condition could cause damage, refused to repair.
Calling this a 'wilful' failure to repair was not the same as saying defendant acted with a wrongful personal intent to injure or in reckless disregard of the rights of others. Nor did the words 'reckless and wilful acts' add anything of significance, limited as they are by the words 'as hereinabove particularly alleged.' We conclude that the portion of the second count which deals with actual damages falls short of pleading a basis for punitive damages. At the very most, it sounds in negligence.
The latter part of the second count pleads no additional facts. It merely refers to certain of the allegations of the first part and characterizes defendant's conduct as 'wilful misconduct,' 'wilful and wanton neglect,' and 'conscious disregard' of the safety, health, rights, and property of the plaintiffs. Those, in their context, are mere labels pinned on by the pleader.
In making this analysis, we do not rely solely upon the fact that, in form, plaintiffs stated their claim for punitive damages separately from their claim for actual damages and used such expressions as 'wilful misconduct' and 'wanton neglect' and 'conscious disregard' solely in connection with punitive damages. 3 That form is a pattern here used by the pleader, a pattern established in the earlier complaints. It reflects his intent.
In the original complaint and again in the first amended complaint, the second count pleaded actual damages by incorporating by reference all of the paragraphs of the first count. It then added a paragraph pertaining to punitive damages, characterizing defendant's conduct as wilful misconduct, wanton neglect, and conscious disregard of plaintiffs' rights. In the second amended complaint instead of incorporating all the allegations of the first count by reference, the second count, when stating the claim for actual damages, repeats most of the allegations of the first count (refraining from the use of the word 'neglect' and omitting a statement that defendant 'promised' to repair). This is followed, as in the former complaints, by a paragraph in which the pleader gives expression to his mere conclusion that the facts pleaded show wilful misconduct, wanton neglect, and conscious disregard of the rights of others.
Plaintiffs confirm this analysis. In their opening brief, at page 12, they say: (Emphasis added.) Plaintiffs could not have told us more plainly that it is solely from the 'facts' stated in the first part of the second count that they draw the conclusion that the defendant intended to harm plaintiff and thus was 'guilty of * * * malice' and therefore subject to punitive damages under section 3294 of the Civil Code. 4
We conclude, therefore, that the second count does not state facts sufficient to constitute a cause of action for an intentional tort or for wanton and reckless or wilful misconduct and, therefore, did not plead a basis for an award of punitive damages.
This does not necessarily mean that no cause of action was pleaded....
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