Crawford v. Herzog

SCOTT, J.,

pro

tem.

Plaintiff recovered judgment for injuries received when the automobile in which he was riding, and which was owned and driven by defendant, left the highway and overturned. Prom such judgment defendant appeals.

In his original answer to plaintiff’s amended complaint defendant admitted that plaintiff was a passenger at the time of the accident. Several weeks before trial he asked leave to amend by declaring that plaintiff was a guest and not a passenger, and to include in his proposed amended answer certain modifications in effect denying that plaintiff was injured or that he had any earning capacity prior to injury. The amendment was not permitted, and the request when renewed at time of trial was again refused. It appears doubtful whether at the time the original answer was filed defendant had in mind the legal distinction between “passenger” and “guest” as applied to section 141% of the California Vehicle Act and construed in

[707]

Crawford

v.

Foster,

110 Cal. App. 81 [293 Pac. 841], and

Sullivan

v.

Richardson,

119 Cal. App. 367 [6 Pac. (2d) 567], The amendment to defendant’s answer should have been permitted by the trial court, so as to clearly present the issues at the trial. As stated in

Hurley

v.

Lake County,

133 Cal. App. 219 [23 Pac. (2d) 838, 839], “good reason must exist to justify a court in refusing a request to so amend”. (Code Civ. Proc., sec. 473.) “It can very rarely happen that a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case, and obviate any objection that the facts which constitute his cause of action or his defense are not embraced within the issues or properly presented by his pleading.”