Saari v. Superior Court In and For Humboldt County

• Decision Date: 18 February 1960
• Citation: 178 Cal.App.2d 175,2 Cal.Rptr. 856
• Court: California Court of Appeals Court of Appeals
• Parties: George SAARI, Petitioner, v. SUPERIOR COURT of State of California, IN AND FOR COUNTY OF HUMBOLDT, Respondent. Civ. 9866.

Page 856

2 Cal.Rptr. 856

178 Cal.App.2d 175

George SAARI, Petitioner, v. SUPERIOR COURT of State of California, IN AND FOR COUNTY OF HUMBOLDT, Respondent.

Civ. 9866.

District Court of Appeal, Third District, California.

Feb. 18, 1960.

Hearing Denied April 13, 1960.

Hilger & Thomas, Eureka, for petitioner.

Woodman, Leddy & Sautter, Eureka, and Bledsoe, Smith, Cathcart, Johnson & Phelps, San Francisco, for real party in interest.

WARNE, Justice pro tem.

The petitioner seeks a writ of mandate to compel the respondent court to permit him to file an amended complaint in an action for personal injuries, arising out of an automobile accident. By the amended complaint he would allege that the accident was due to the wilful and wanton misconduct of the driver of the other carinvolved in the accident, that is, the Leddy car. Petitioner's original complaint alleges negligence only.

The accident grew out of an automobile collision between the petitioner's car and one driven and owned by John T. Leddy, deceased. The accident occurred on March 11, 1955. The original complaint alleged negligence, the issue was joined, and the case went to trial, resulting in the granting of a nonsuit on the ground that plaintiff was contributorily negligent as a matter of law. An appeal was taken and this court reversed the judgment and at the same time dismissed the purported appeal from the trial court's order denying appellant's (petitioner herein) motion to amend his complaint to conform to the proof so as to allege wilful and wanton misconduct on the ground that such was not an appealable order. Saari v. Leddy, 167 Cal.App.2d 799, 335 P.2d 128, filed February 11, 1959. The motion to amend was made following the granting of the motion for a nonsuit. Thereafter, on May 25, 1959, petitioner again moved the respondent court to amend his complaint so as to allege wilful and wanton misconduct. The motion was denied and this petition for a writ of mandate followed.

Petitioner contends that the trial court abused its discretion in refusing to permit him to amend his complaint so as to allege wilful and wanton misconduct. To the contrary the real party in interest argues that the allowance or disallowance of the amendment was within the discretion of the trial court, and, furthermore, that the trial court had no alternative but to deny the motion since the proposed amendment states facts giving rise to a wholly distinct and different obligation against the real party in interest and is therefore barred by the one year statute of limitations. (Code of Civ.Proc., sec. 340.) We feel that the contentions made by the real party in interest are without merit.

In Barr v. Carroll, 128 Cal.App.2d 23, 274 P.2d 717, 719, a similar question to the one presented in the instant case was presented. In that case the plaintiff's original complaint alleged that while he was an invited guest in defendant's automobile he was injured by defendant's wilful and wanton misconduct. In his second amended complaint, filed almost four years after the original complaint, plaintiff alleged that he was carried and conveyed in the defendant's automobile against his will and that as an involuntary guest he was injured by the defendant's negligence. In ruling that the amended complaint was properly allowed, the court said:

'In determining this question it is well to bear in mind some of the general principles of law relating to amendments of complaints.

'(a) The courts are very liberal in allowing amendments in order that, if possible, no litigant be deprived of his day in court because of mere technicalities of pleading. See Frost v. Witter, 1901, 132 Cal. 421, 424, 64 P. 705, .

'(b) It is well settled that the commencement of an action upon a given cause does not stop the running of the statute of limitations against a wholly different cause of action, and hence amendments attempting to set up such different cause of action should not be allowed. Atkinson v. Amador & S. Canal Co., 53 Cal. 102; Lambert v. McKenzie, 135 Cal. 100, 67 P. 6; Ridley v. Young, 64 Cal.App.2d 503, 149 P.2d 76; McKnight v. Gilzean, 29 Cal.App.2d 218, 84 P.2d 213; Burnett v. Boucher, 108 Cal.App.2d 37, 238 P.2d 1. On the other hand, proper amendments to the original complaint relate back to the date of the filing of the original complaint and are not barred by the statute of limitations, even though the amendments are made subsequent to the date upon which the statute would otherwise have run. Frost v. Witter, supra, 1901, 132 Cal. 421, 427, 64 P. 705; Ginsberg v. Faraone, 1932, 126 Cal.App. 337, 342, 14 P.2d 777; Kirman v. Borzage, 1946, 75 Cal.App.2d 865, 871, 172 P.2d 90; Wennerholm v. Stanford Univ. School of Med., 1942, 20 Cal.2d 713, 717, 128 P.2d 522, 141 A.L.R. 1358. Inconsistent causes of action may be pleaded in as many ways as plaintiff believes his evidence will support, and plaintiff may recover if one well pleaded count is supported by the evidence. Wells v. Brown, 1950, 97 Cal.App.2d 361, 217 P.2d 995; Froeming v. Stockton Elec. R. Co., 1915, 171 Cal. 401, 153 P. 712, [Ann.Cas.1918B, 408].

'(c) The test is 'whether an attempt is made to state facts which give rise to a wholly distinct and different legal obligation against the defendant.' Klopstock v. Superior Court, 17 Cal.2d 13, 20, 108 P.2d 906, 910, 135 A.L.R. 318.'

Here, as in the Barr case, supra, the question is whether or not petitioner's proposed amendment sets forth a distinct and different legal obligation against the defendant. When the basic facts are the same a mere change in the legal theory underlying the plaintiff's complaint will not subject the amended complaint to the bar of the statute of limitations. Wennerholm v. Stanford Univ. School of Med., supra, 20 Cal.2d at page 718, 128 P.2d 522; Youngblood v. City of Los Angeles, 160 Cal.App.2d 481, 489, 325 P.2d 587; 2 Witkin, California Procedure, p. 1623.

Petitioner's proposed amendment pertains wholly to the manner in which the injury was inflicted and actual damages are all that are sought to be recovered. The gist of the action is the claim for actual damages for personal injuries inflicted by the Leddy car, and these are the facts stated in the original complaint. Only his theory of recovery has changed.

It is suggested by the real party in interest that if the amendment is allowed she may lose the benefit of the defense of contributory negligence. If the real party in interest is deprived of the defense of contributory negligence because of the decedent's wilful and wanton misconduct she has lost nothing to which she is entitled. Under such circumstances her rights could not be prejudiced.

The case of Lambreton v. Industrial Accident Commission, 46 Cal.2d 498, 297 P.2d 9, cited by the real pa...