Vallejo v. Montebello Sewer Co.

• Decision Date: 19 November 1962
• Citation: 209 Cal.App.2d 721,26 Cal.Rptr. 447
• Court: California Court of Appeals Court of Appeals
• Parties: Arthur M. VALLEJO, Plaintiff and Appellant, v. MONTEBELLO SEWER CO., Inc., Defendant and Respondent. Civ. 25906.

Page 447

26 Cal.Rptr. 447

209 Cal.App.2d 721

Arthur M. VALLEJO, Plaintiff and Appellant, v. MONTEBELLO SEWER CO., Inc., Defendant and Respondent.

Civ. 25906.

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

Nov. 19, 1962.

Cooper & Gair by Jay Gair, Hollywood, for appellant.

Warren D. Allen and Walter M. Sharman by Walter M. Sharman, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal by plaintiff from a judgment entered in favor of Montebello Sewer Co., Inc., (sometimes hereinafter referred to as Montebello) after a motion by Montebello to dismiss the complaint was granted.

The plaintiff filed an unverified complaint on April 29, 1960, for damages for personal injuries and for property damages to an automobile. The action was against the defendants Jose Flores, Montebello, Lighting Dynamics, Inc. and others. The complaint was stated in one cause of action and plaintiff alleged, among other things therein, that he, Vallejo, was the owner of and a passenger in a 1958 Chevrolet automobile driven by Flores, that Flores negligently operated the car, causing it to collide with a pile of dirt negligently left upon the street by Montebello and which company also negligently failed to post warnings, erect adequate guards, or place adequate warning lights upon the pile of dirt.

Flores filed an answer to the complaint on May 16, 1960, wherein he denied any negligence and affirmatively alleged that he was driving the car in the presence of the owner (Vallejo) and under his direction and control, that he (Flores) was the agent of Vallejo and under his direction, and further that Vallejo assumed the risks involved.

Montebello, on June 8, 1960, filed a general demurrer to the complaint upon the grounds that such complaint failed to state a cause of action against Montebello. The memorandum of points and authorities in support of the demurrer set forth, among other things, that the complaint on its face showed that Vallejo was the owner of the automobile, that Flores was driving it and that Vallejo was a passenger in the car at the time, that Flores negligently drove the automobile so as to collide with a pile of dirt piled in the street by Montebello and that he, Vallejo, was injured and damaged thereby. It was further stated in the memorandum that under Milgate v. Wraith, 19 Cal.2d 297, 121 P.2d 10, the negligence of a driver of an automobile will be imputed to the owner thereof for the purposes of barring the owner's recovery in actions for damages against third persons. The demurrer was sustained on June 15, 1960, and Vallejo was given 20 days within which to amend the complaint.

A motion for leave to file a proposed cross-complaint was filed on June 28, 1960, by Flores, such cross-complaint to be against Montebello and Lighting Dynamics, Inc. (sometimes hereinafter referred to as Lighting) as cross-defendants. Therein it was alleged by Flores, among other things, that Vallejo was the owner of the Chevrolet automobile in question, that Flores was driving the car with the permission and consent of the owner, and that Vallejo was a passenger in the automobile at the time in question; that a pile of dirt had been negligently left in the street without adequate warning signs and the automobile, while being carefully driven by him, ran into the pile of dirt and Flores was thereby injured.

A first amended unverified complaint was filed on July 5, 1960, by Vallejo. In the first amended complaint the plaintiff set forth four causes of action. The first cause thereof is against Flores for the personal injuries sustained, and the second cause thereof is against Flores for the property damage to his automobile. It was alleged in the first cause of action that plaintiff was the owner of a 1958 Chevrolet hardtop automobile, that Flores did on March 4, 1960, operate the car along certain named streets, that plaintiff owned the Chevrolet automobile and was a passenger therein at the time of the accident, that Flores negligently drove the Chevrolet automobile so as to cause it to collide with a pile of dirt on the street and so as to proximately cause the personal injuries and property damage to plaintiff.

The second cause of action in the amended complaint realleged the matters set forth above as indicated and had to do with plaintiff's claims for property damage to the Chevrolet automobile.

The third cause of action in the amended complaint was against Montebello and Lighting. Plaintiff alleged therein that certain named streets were public streets, that on March 4, 1960, Flores operated a 1958 Chevrolet hardtop automobile on the streets in question, that the Chevrolet automobile in question belonged to the plaintiff and that he was a passenger therein; that a pile of dirt was negligently left in the street; that Montebello and Lighting failed to post adequate warnings, erect adequate guards or to place adequate warning lights on said pile of dirt, which constituted an obstruction in the street, that such negligence proximately caused the automobile to collide with the obstruction and proximately caused the injuries and damage to plaintiff. Further it was alleged that said obstruction was placed in the street under a contract between Montebello and Lighting, under which contract certain drains were to be installed for property belonging to Lighting, that Lighting had knowledge of the dangerous condition and consented to it, that the contract between the named corporate defendants contained no provision requiring the company which was to do the work to guard the excavation, or if contained therein was negligently inadequate to protect users of the street; that Lighting negligently failed to provide adequate warning of the obstruction to users of the street and negligently failed to supervise the contractors. It was further alleged that in the original complaint the plaintiff by mistake and inadvertence pleaded liability against the originally named defendants in the same cause of action, and that it was the intention of plaintiff to plead the liability of the several defendants in the alternative, as he did not know who was negligent and/or whose negligence was a proximate cause of his injury.

The fourth cause of action in the amended complaint realleged the charging provisions of the third cause of action and had to do with the property damage to the automobile.

It is to be noted that there was no charge of negligence against Flores in the third and fourth causes of action and there is no reference therein to the first and second causes of action. In the first and second causes of action there is no reference to the third and fourth causes of action.

On July 12, 1960, Lighting filed an answer to the amended complaint wherein it was set forth that Vallejo had assumed the risk, was guilty of contributory negligence and that Vallejo was a passenger in his own automobile at the time of the accident, and any negligence of the driver Flores was imputed to him. On July 13, 1960, the motion of Flores to file a cross-complaint was granted and the cross-complaint was so filed as of that date.

On July 22, 1960, Montebello filed an answer to the third and fourth causes of action of the amended complaint. The answering defendant denied any negligence upon its part and as an affirmative defense alleged that Flores was driving the automobile at the time of the accident and that plaintiff was riding therein as a passenger, that Flores was driving the car with the permission and consent and as an agent and within the course and scope of his agency of and for the plaintiff, that at the time of the accident Flores was negligent and negligently drove the automobile in which plaintiff was riding so as to cause the same to collide with the pile of dirt, that the negligence of Flores was the sole and proximate cause of the accident and of the injuries to plaintiff, and that the negligence of Flores is imputed to plaintiff and bars his recovery against the answering Montebello. Further it was affirmatively set forth that the third and fourth causes of action do not state a cause of action against Montebello.

On July 26, 1960, an answer to the cross-complaint of Flores was filed by Lighting, wherein that company in effect denied that Vallejo was the owner of the Chevrolet car, denied that Flores was driving the car with the permission and consent of the owner thereof, and denied any negligence upon its part.

On August 31, 1960, interrogatories were propounded to Vallejo by Lighting and on the same date interrogatories were propounded to Flores by Lighting under the cross-complaint.

On September 22, 1960, answers to the interrogatories of Lighting to the plaintiff were filed. Therein the plaintiff set out, among other things, that in the accident he received a compound fracture of the skull, a concussion, fracture of the neck and other quite serious injuries, that he had contracted substantial medical and hospital bills, and particularly set forth such amounts.

The record discloses that on October 10, 1960, Flores filed answers to the supposed interrogatories propounded to him by the cross-defendant Montebello. In fact, however, at that time no interrogatories had been put to Flores by Montebello. Interrogatories had been propounded by Lighting and filed on August 31, 1960. It would seem that Flores was in fact answering the interrogatories of Lighting, although the answers are as indicated, designated as answers to the questions of Montebello.

On December 31, 1960, Montebello filed an answer to the Flores cross-complaint, wherein it denied in effect that Vallejo was the owner of the car in question, denied that Flores was driving the car with the permission and consent of the owner, and denied that the owner was riding in the automobile at the time of the accident, and further denied all negligence or responsibility for the accident.

On February 14, 1961, Montebello filed interrogatories to...