Seedborg v. Lakewood Gardens Civic Ass'n

• Decision Date: 16 July 1951
• Citation: 233 P.2d 943,105 Cal.App.2d 449
• Parties: SEEDBORG et al. v. LAKEWOOD GARDENS CIVIC ASS'N. Civ. 18025.
• Court: California Court of Appeals Court of Appeals

Page 943

233 P.2d 943

105 Cal.App.2d 449

SEEDBORG et al. v. LAKEWOOD GARDENS CIVIC ASS'N.

Civ. 18025.

District Court of Appeal, Second District, Division 1, California.

July 16, 1951.

Kenneth J. Murphy, Pasadena, for appellant.

Albert J. Corske, Long Beach, for respondents.

WHITE, Presiding Justice.

Defendant has appealed from a judgment entered upon the verdict of a jury in an action for damages for personal injuries.

Defendant, a nonprofit corporation organized for civic purposes and the betterment of the community, owned and operated a clubhouse and playground as a recreation center. A Halloween party was planned for October 31, 1948, and one of the members of the association, Mrs. Worley, was placed in charge of the affair, which was to include a costume parade in the afternoon for the children, and entertainment at the clubhouse in the evening, with food, dancing and concessions. Among the concessions planned by Mrs. Worley was a dart booth, to be arranged more or less as a square, with two sides, a front counter, a backdrop, and to be decorated in Halloween colors. For the backdrop, to which the dart board was to be fastened, Mrs. Worley proposed to use a large sign, about eight feet square, which was on the grounds. The sign was of wood and weighed approximately 140 to 150 pounds. It was not currently in use, but was kept or stored along a fence on one side of the grounds and fastened to the fence with a chain and padlock.

On October 30, 1948, Mrs. Worley had the sign removed by some of the volunteer workers to a position in the rear of the dart booth, where it was placed against a fence at the rear of the booth. The sign was not fastened to the fence in any way, but was left leaning against the same at an angle with its base a foot and a half to two feet from the fence. The latter was constructed of vertical one-by-six boards with a four to six inch space between the boards. Early in the afternoon Mrs. Worley left the grounds to procure, among other supplies, some nails or spikes with which to fasten the sign securely to the fence.

About the time of Mrs. Worley's departure, around 1 o'clock in the afternoon, plaintiff Mrs. Seedborg came to the grounds for the purpose of putting up decorations. Mrs. Seedborg was standing on a ladder fastening some streamers to the dart booth when the sign fell, striking her or the ladder, or both, and causing her to fall to the ground. It would appear from the evidence that the falling of the sign was probably caused by a gust of wind.

Appellant urges as grounds for reversal (1) that the court erred in permitting an amendment to the complaint 'to conform to proof'; (2) that evidence was erroneously admitted; (3) that error was committed in the giving and refusal of instructions; (4) that the verdict is not supported by the evidence; and (5) that the amount of the verdict, $2,500, is excessive. Examination of the entire record, however, compels the conclusion on our part that the asserted errors did not result in a miscarriage of justice and did not impair any substantial right of the defendant.

It was alleged in the original complaint that the plaintiffs were husband and wife; that as a result of defendant's negligence 'plaintiff was hurt and injured in her health, strength and activity, sustaining severe shock, sprains, multiple contusions and abrasions about and upon her head and body, all of which said injuries are of a permanent nature and have caused and will continue to cause plaintiff great physical pain and suffering, nervousness, loss of appetite and sleep, and impairment of her ability to perform usual household duties or to be employed at gainful employment, * * *'. Further, it was alleged that 'plaintiff Marjorie Seedborg was and has been unable to work, and plaintiffs were compelled to incur bills for medical attention, hospitalization, nursing, housekeeper, medicines, ambulance and laundry, all to plaintiffs' damage in the sum of Seven Hundred Fifty Dollars; * * * plaintiff Paul Seedborg was compelled to remain home from work for a period of one week to care for plaintiff Marjorie Seedborg and to act as housekeeper, * * *.'

In arguing to the jury after the taking of evidence had been concluded, counsel for plaintiffs urged that the husband was entitled to the reasonable value of the services which he lost as a result of Mrs. Seedborg's being incapacitated. Upon objection that this claim was without the issues made by the complaint, a recess was taken, and after considering the matter in chambers, the court allowed an amendment to the complaint to be filed, which amendment alleged, in substance, that prior to her injuries the plaintiff wife was in good health and capable of performing and did perform the usual duties of a housewife, 'was a pleasing and loving wife to said husband, and as a consequence thereof said husband received much comfort and happiness in her society and companionship.' That as a result of the injuries the husband 'has been deprived of the services of his said wife, and his comfort and happiness in her society and companionship have been greatly impaired'; that such deprivation will continue for a long time; and the wife 'has become highly nervous and irritable; all to plaintiffs damage in the sum of $25,000.00.'

Appellant argues that the amendment allowed by the court introduced a new and different cause of action--a cause of action in the husband, rather than in the wife or in the community, for loss of his wife's services. Further, it is pointed out, this new cause of action accrued on October 30, 1948, and was barred by the statute of limitations when it was allowed to be added as an amendment on March 2, 1950. Appellant asserts that the allowance of such amendment was prejudicial, in that appellant had had no opportunity to investigate the merits of such an action or go into it at the time of the taking of depositions or at the trial, and when the claim was made for the first time at such a late date the benefit of making investigation was lost. Despite appellant's able and earnest arguments in this regard, however, we are not persuaded that prejudice to any substantial right resulted from the trial court's action. The trial court, when the question arose, offered to continue the case and permit it to be re-opened, but counsel for the defense declined the offer. In this respect, the record shows, in part, the following:

'The Court: * * * As far as the new matter being brought in and the surprise alleged the Court is of the opinion that you are entitled to have the case reopened and to a reasonable time to make further investigation. I think, as Mr. Corske says, most of the investigation would have been made under the allegations which are already contained in the complaint so that I don't think you are damaged too much by the surprise but the Court will permit the case to be reopened and will permit additional time for investigation.

'Mr. Murphy (Defense Counsel): Your Honor, I appreciate the Court's consideration but this accident happened way back in 1947 (the accident happened October 30, 1948) and the trial took place in March, 1950 and the six weeks' period (the admitted period of the wife's total disability) has long since passed and any investigation that I would make now would be unavailing.'

In further discussion, it was pointed out by plaintiffs' counsel that the action was not filed...