Van Meter v. Reed

• Decision Date: 27 September 1962
• Citation: 24 Cal.Rptr. 688,207 Cal.App.2d 866
• Court: California Court of Appeals Court of Appeals
• Parties: Edwin M. VAN METER, Plaintiff and Appellant, v. Thelma REED, Defendant and Respondent. Civ. 26116.

Page 688

24 Cal.Rptr. 688

207 Cal.App.2d 866

Edwin M. VAN METER, Plaintiff and Appellant, v. Thelma REED, Defendant and Respondent.

Civ. 26116.

District Court of Appeal, Second District, Division 3, California.

Sept. 27, 1962.

Luckham, Steiner, Fenton & Smith, and Fred C. Fenton, Los Angeles, for appellant.

Schweiner & Garber and L. E. Schweiner, Panorama, for respondent.

FORD, Justice.

The plaintiff has appealed from a judgment of dismissal entered in favor of the defendant Thelma Reed after her general demurrer to the first amended complaint had been sustained with leave to amend but the plaintiff had failed to avail himself of such leave.

The plaintiff alleged that he was injured when he was struck by an automobile owned by the defendant Reed while it was being driven by plaintiff's fellow employee, the codefendant Eddie Yanez. The accident occurred on the premises of the employer of the plaintiff and Yanez while each was acting within the course and scope of his employment. ¹ It was further alleged that Yanez was operating the vehicle with the permission and consent of the defendant Reed. ² Other allegations were as follows: 'That * * * on the parking area of Foothill Motors * * * at a time and place where many automobiles were parked in close proximity one to the other, and at a time when many employees of said Foothill Motors, and customers thereof, were walking across said parking area and working thereon, and with vehicular traffic constantly moving thereon, all of which facts were known, or reasonably should have been known to defendants, and each of them, said defendants, and each of them, negligently, carelessly,and with utter disregard for the safety of plaintiff, * * * without any warning, and with a calculated and conscious willingness to permit injury to plaintiff * * * operated * * * that certain 1958 Ford automobile so as to cause it to run into and strike plaintiff, while he walked across said parking area * * *.' (Emphasis added.) The allegations which have been italicized were so worded because of the present language of section 3601 of the Labor Code. ³

Section 17150 of the Vehicle Code does not impose liability upon the owner for the acts or omissions of one operating his vehicle with his permission if such acts or omissions involve culpability greater than that inherent in the concept of negligence. (Weber v. Pinyan, 9 Cal.2d 226, 238, 70 P.2d 183, 112 A.L.R. 407; Ingram v. Bob Jaffe Co., 139 Cal.App.2d 193, 197, 293 P.2d 132; Escobedo v. Travelers Ins. Co., 197 Cal.App.2d 118, 126; see Hobbs v. Transport Motor Co., 22 Cal.2d 773, 778, 141 P.2d 738.) But if, while the motor vehicle is being driven by another with the permission, express or implied, of the owner, the negligence of the operator causes injury to a third person, liability is imposed upon the owner under section 17150 of the Vehicle Code even though under section 3601 of the Labor Code the operator may have a special defense to an action brought against him by the injured person. (See Baugh v. Rogers, 24 Cal.2d 200, 207-214, 148 P.2d 633, 152 A.L.R. 1043.) In the Baugh case it was said at page 213, 148 P.2d at page 641: 'The special defense of the negligent operator, based on the business relationship and status of the operator and the plaintiff, and the provisions of the Workmen's Compensation Law, is not available to the owner. It is the negligence of the operator, and not his liability or status, which is imputed to the owner. The negligence being imputed, the liability therefor is his own.' Of a decision of a lower New York court, the court said (24 Cal.2d at pp. 213-214, 148 P.2d at p. 641): 'The trial court there proceeded on the theory that, because by virtue of the New York Workmen's Compensation Law the employee cannot maintain an action against his co-employee (the negligent operator), 'it logically follows that he cannot maintain one against another person [the owner of the vehicle] whose sole liability derives from the negligence of a co-employee.' [Swartz v. Forty-Second St., M. & St. N. A. R. Co., 175 Misc. 49] Page 754 of 22 N.Y.S.2d. This is the only case dealing directly with the question which has come to our attention. It does not appear to have been presented to a higher court. As indicated above, such an approach in the present case would ignore the meaning and purpose of our imputed negligence statute. Hence, and for the other reasons given, we are impelled to a contrary conclusion.' This court is not free to depart from the reasoning of the Baugh case.

The question next to be considered is whether the plaintiff sufficiently pleaded a cause of action against the owner of the motor vehicle in harmony with the reasoning of the Baugh case. 'Negligence may be alleged in general terms, which means that it is sufficient to allege that an act was negligently done without stating the particular omission which rendered it negligent.' (Brooks v. E. J. Willig Truck Transp. Co., 40 Cal.2d 669, at 680, 255 P.2d 802, at 809.) Consequently, if the allegations herein above noted which are based upon section 3601 of the Labor Code are disregarded, the complaint is sufficient to state a cause of action for negligence against the appellant Reed under the provisions of section 17150 of the Vehicle Code.

As has been noted, the allegations that the defendant Yanez acted 'with utter disregard for the safety of plaintiff * * * and with a calculated and conscious willingness to permit injury to plaintiff,' were made for the purpose of stating a cause of action against the defendant Yanez pursuant to the provisions of section 3601 of the Labor Code. Such allegations fail to state a basis for recovery against the owner of the motor vehicle because the quoted words embody a concept of conduct which differs from negligence. (See People v. Young, 20 Cal.2d 832, 837, 129 P.2d 353; Emery v. Emery, 45 Cal.2d 421, 426, 289 P.2d 218; Rest., Torts, § 500.) ⁴ It may be that, insofar as the attempt to plead a cause of action against the plaintiff's fellow employee Yanez under the provisions of section 3601 of the Labor Code is concerned, the complaint is deficient in the light of the establish rule that where the plaintiff relies on conduct of greater culpability than negligence specific facts upon which the charge is based should be pleaded. (See Snider v. Whitson, 184 Cal.App.2d 211, 215, 7 Cal.Rptr. 353; Bartlett v. Jackson, 13 Cal.App.2d 435, 437, 56 P.2d 1298; 2 Chadbourn, Grossman and Van Alstyne, California Pleading, §§ 957-958.) But if there be such deficiency, it should not be held to vitiate the cause of action against the defendant Reed predicated on negligence of the operator, even though a special demurrer might have been interposed on her behalf because of the effort to plead, in...