Burnett v. Boucher

BARNARD, P. J.

These actions for damages were consolidated for trial and on this appeal. The complaint in each action alleged that on June 19, 1949, “the defendants” owned and operated a certain automobile; and that “at said time

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and place the defendants then and there so negligently and carelessly had, owned, operated, managed, possessed, propelled and controlled their said automobile that the same col-, lided violently with the automobile in which the plaintiffs were riding,” causing the injuries complained of.

The defendant Bari Boucher admitted in his answers that he owned the vehicle in question and that it was then being driven by the defendant Edward Darwin Boucher, but denied the allegations charging him with negligence. Edward Darwin Boucher, who is the son of Earl Boucher, was not served and the actions came to trial on November 20, 1950, as against Earl Boucher alone. In their opening statement the plaintiffs conceded that the automobile was owned by the father and was being driven by the son; expressly disclaimed any intention of proving that the son was acting as an agent or employee of his father; and stated that they expected to prove that the son was driving the car with the father’s permission.

The defendant Earl Boucher moved for a nonsuit based on the contention that the only cause of action alleged in the complaints had been abandoned, and that evidence on a different theory, statutory liability for imputed negligence, was inadmissible. The plaintiffs argued that their complaints were broad enough to cover the matter “statutory or otherwise, ’ ’ but asked permission to amend the complaints on their face by alleging that the son was driving with the permission, express or implied, of the father. They relied mainly on the case of

Woods

v.

Cook,

14 Cal.App.2d 560 [58 P.2d 965], while the defendant Earl Boucher relied on the case of

McKnight

v.

Gilzean,