Pettus v. Standard Cabinet Works

• Decision Date: 01 March 1967
• Citation: 57 Cal.Rptr. 207,249 Cal.App.2d 64
• Court: California Court of Appeals Court of Appeals
• Parties: John J. PETTUS et al., Plaintiffs and Appellants, v. STANDARD CABINET WORKS and Howard Whitnah, Defendants and Respondents. Alfoue B. BRYANT et al., Plaintiffs and Appellants, v. STANDARD CABINET WORKS and Howard Whitnah, Defendants and Respondents. William MILLER et al., Plaintiffs and Appellants, v. STANDARD CABINET WORKS and Howard Whitnah, Defendants and Respondents. Civ. 683.

Page 207

57 Cal.Rptr. 207

249 Cal.App.2d 64

John J. PETTUS et al., Plaintiffs and Appellants, v. STANDARD CABINET WORKS and Howard Whitnah, Defendants and Respondents.

Alfoue B. BRYANT et al., Plaintiffs and Appellants, v. STANDARD CABINET WORKS and Howard Whitnah, Defendants and Respondents.

William MILLER et al., Plaintiffs and Appellants, v. STANDARD CABINET WORKS and Howard Whitnah, Defendants and Respondents.

Civ. 683.

Court of Appeal, Fifth District, California.

March 1, 1967.

Rehearing Denied March 28, 1967.

Hearing Denied April 26, 1967.

Robert A. Kaiser and Jeremiah F. O'Neill, Jr., Oakland, for appellants.

Harold A. Parichan and John H. Krebs, Fresno, for respondents.

GARGANO, Justice.

This appeal involves three separate law suits (for wrongful death and personal injuries), arising out of the same automobile accident, which were consolidated for trial. Subsequent to the consolidation the defendants Standard Cabinet Works and Howard Whitnah moved for summary judgments and their motions were granted. Accordingly, judgment was entered in favor of the defendants in each consolidated action, and the plaintiffs have appealed. The facts as developed by the respective affidavits are admittedly as follows:

The automobile in which the plaintiffs (and the decedent in the wrongful death action) were riding was violently struck by a vehicle which left the scene of the accident. The accident occurred at approximately 6:15 a.m. of November 8, 1962, on U.S. Highway 99 outside the town of Livingston in Merced County. The plaintiffs were so seriously injured that no one was able to identify the other vehicle, and there were no other eyewitnesses. However, the investigation made by officers of the California Highway Patrol indicated that the automobile in which plaintiffs were riding was struck by a vehicle, 'probably a truck,' which left the scene of the accident. Moreover, a detached license plate was found on the shoulder of the highway near the scene of the accident, which was ultimately traced through the State Department of Motor Vehicles to a truck belonging to the defendant Standard Cabinet Works. This defendant had its plant in the City of Los Angeles, and consequently the examination of the truck was made by Sergeant Wallace Richard Waldron of the Los Angeles branch office of the California Highway Patrol. The investigation was made on November 10, 1962, two days after the accident, and it disclosed that a stake pickup truck owned by the defendant Standard Cabinet Works had been driven to Sacramento over U.S. Highway 99 by its employee, defendant Howard Whitnah, around the time of the accident; that during the trip the truck had lost its license plate (the license plate found at the scene of the accident); and that this truck showed no signs of having been in a recent accident or of recent repairs. Specifically, Sergeant Waldron, whose deposition was taken on June 7, 1965, and again on November 16, 1965, testified that he was satisfied that the vehicle inspected by him was the one which had been driven by Howard Whitnah to Sacramento; that it had not been in an accident; and that he could not find a scratch or dent or any other visible evidence that it had been involved in an accident at any time. In a communication which Sergeant Waldron sent to the requesting California Highway Patrol office, he stated that his examination of the vehicle revealed no damage to the front or sides of the vehicle, that no paint transfers were found, that the examination of the underside of the vehicle disclosed no recent repair work had been attempted, and that the vehicle showed no signs of a recent paint job, total or partial.

Apparently no other evidence was uncovered by the California Highway Patrol connecting the defendant Howard W. Whitnah or any truck owned by the defendant Standard Cabinet Works with the accident. And, seemingly, nothing further was done by the plaintiffs until almost two and one-half years later when the deposition of the defendant Howard W. Whitnah was taken. Whitnah denied that he was involved in the accident and testified that he left Los Angeles on November 8, 1962, around 10 p.m. enroute to Sacramento in a 1958 Chevrolet 3/4 ton stake pickup truck owned by his employer, defendant Standard Cabinet Works; that prior to his arrival in Sacramento the morning of November 9, 1962, and a few miles outside that city, a service station attendant called his attention to the fact that his rear license plate was missing; that he arrived back in Los Angeles late Friday night or early Saturday and returned the vehicle to his employer's plant prior to its inspection Saturday morning, November 10, 1962, by Sergeant Waldron; and that no repairs were made on the pickup after he left Los Angeles for Sacramento and before the vehicle was inspected by Sergeant Waldron.

Before considering plaintiffs' contentions for reversal, a review of the law applicable to summary judgments is in order. Section 437c of the Code of Civil Procedure provides, in part, that:

'* * * if it is claimed that there is no defense to the action or that the action has No merit, on the motion of either party * * * judgment may be entered, in the discretion of the court unless the other party, by affidavit or affidavits shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact. * * *' (Emphasis added)

The salient philosophy behind this procedural device is to provide a method for the prompt disposition of actions and proceedings which have No merit and in which there is no triable material issue of fact (28 Cal.Jur.2d 666). However, it is drastic in nature, and it should be resorted to sparingly and with great caution (Eagle Oil and Ref. Co. v. Prentice, 19 Cal.2d 553, 122 P.2d 264; Albermont Petroleum, Ltd. v. Cunningham, 186 Cal.App.2d 84, 9 Cal.Rptr. 405; Kimber v. Jones, 122 Cal.App.2d 914, 265 P.2d 922). In fact, if any doubt exists as to whether summary judgment be granted, such doubt should be resolved against the moving party (Johnson...