Melikian v. Truck Ins. Exchange

• Decision Date: 18 May 1955
• Citation: 133 Cal.App.2d 113,283 P.2d 269
• Court: California Court of Appeals Court of Appeals
• Parties: Harry MELIKIAN, Plaintiff and Appellant, v. TRUCK INSURANCE EXCHANGE and Inter-Insurance Exchange, corporations, Allan Noble, Chester D. Wynn, First Doe, Second Doe and Third Doe, Defendants and Respondents. Civ. 16300.

Page 269

283 P.2d 269

133 Cal.App.2d 113

Harry MELIKIAN, Plaintiff and Appellant, v. TRUCK INSURANCE EXCHANGE and Inter-Insurance Exchange, corporations, Allan Noble, Chester D. Wynn, First Doe, Second Doe and Third Doe, Defendants and Respondents.

Civ. 16300.

District Court of Appeal, First District, Division 2, California.

May 18, 1955.

Hearing Denied July 13, 1955.

Johnson, Thorne, Speed & Bamford, Harry V. Bamford, San Jose, for appellants.

Campbell, Custer, Warburton & Britton, San Jose, Walter E. Rankin, San Jose, of counsel, for respondents.

NOURSE, Presiding Justice.

Plaintiff sued to enforce an offer of settlement for injuries incurred in a motor vehicle accident. A demurrer to his amended complaint was sustained after argument by counsel for defendants, the plaintiff failing to appear for argument in support of his complaint.

The controlling issue on the appeal from the adverse judgment is whether the complaint alleges an acceptance of the offer within time. In approaching that issue we are bound, just as the trial court was bound, by the allegations in the verified complaint and cannot consider the outre-judicial statements of counsel nor the additional facts found in the briefs. The complaint is in plain and simple language and the pleader is bound by the allegations contained therein. The complaint herein alleges that the complaint for injuries was filed on June 27, 1951; that while the suit was pending, and on May 5, 1953, an agent of the insurance carrier made an oral offer to the plaintiff to pay the sum of $6,000 in full settlement; that the offer was accepted by plaintiff's counsel on May 14, 1953; that they proceeded with the trial before a jury which commenced on the 11th day of May, 1953 and ran for four days; that the jury returned a verdict in favor of the defendants. Significantly the complaint fails to allege when the verdict was returned, or whether the evidence, or some portion of it, was presented to the jury before or after the purported acceptance. Also, whether this verdict preceded the alleged acceptance of the offer does not appear from the allegations of the complaint. These were pertinent matters of fact highly essential to plaintiff's case and fully within his own knowledge. If this acceptance had taken place after the adverse verdict it would have been of no value whatever. If it had been made after the jury was summoned and after the defendants had been put to the expense of trial it was of no value because at that time the consideration for the offer had failed and was not capable of performance. From his failure to allege that time of acceptance we must presume that such an allegation would have been fatal to his case, and, hence, that there was no acceptance within proper time upon which he could now reply. Smith v. Buttner, 90 Cal. 95, 100, 27 P. 29; Curci v. Palo Verde Irr. Dist., 69 Cal.App.2d 583, 585, 159 P.2d 674. This rule is succinctly stated in Feldesman v. McGovern, 44 Cal.App.2d 566, 571, 112 P.2d 645, 648,...