McKnight v. Gilzean

California Court of Appeal Nov 15, 1938 No. Civ. 5968Published

Before: Steel

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Holding. The court held that an amendment to a complaint asserting a claim for imputed negligence under Section 402 of the Vehicle Code constitutes a new and different cause of action from one based on the common-law doctrine of respondeat superior, and is therefore barred if filed after the statute of limitations has expired.

Issues

Whether a cause of action for statutory imputed negligence under Section 402 of the Vehicle Code is a new and different cause of action from one based on the common-law doctrine of respondeat superior.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Since the imputed negligence statute created a new right of action, giving a remedy against a party who would not otherwise be liable, it must be strictly construed.”

“Clearly, we think the amendment, which the appellee filed after the period had expired under the statute of limitations, pleaded a new cause of action, and being filed after the period had run, was barred.”

STEEL, J.,

pro

tem.

This is an appeal by the plaintiffs from a judgment entered pursuant to orders sustaining a demurrer to the amended complaint and granting motions to strike. The action is one for damages for alleged personal injuries. The original complaint, filed in March, 1936, sets forth two causes of action, one based upon the alleged damages suffered by plaintiff wife, and the other based upon the alleged consequential damages suffered by plaintiff husband.

Paragraphs IV, V and VI of the first cause of action (which paragraphs are incorporated by reference into the second cause of action), allege as follows:

[219]

“IV.

“That during all of the times and dates herein mentioned, the defendants, Don Gilzean, and/or C. B. Warner, and/or Warner Finance Company, were the owners of, and in the possession of a certain automobile driven and operated by the defendant, Don Gilzean.

“V.

“That during all of the times and dates herein mentioned, the defendant, Don Gilzean, was in the employ of the defendants, C. B. Warner and Warner Finance Company, and acting within the scope of his employment.

“VI.

“That on the twenty-first day of December, 1935, . . . and at said time and place, the defendant, Don Gilzean, was driving and operating an automobile for and on behalf of defendants, C. B. Warner and Warner Finance Company’’ . . .

The cause came on for trial on May 26th, 1937, at which time plaintiff's asked leave to file an amended complaint, which motion was granted with leave to the defendants to demur.

The original complaint, as heretofore mentioned, contained two causes of action; the proposed amended complaint contains four causes of action; and the changes or amendments complained of are found in the second and fourth causes of action, and consist of the following additions of fact: (1) That the defendant, Gilzean, was operating a vehicle owned by the defendants, C. B. Warner, and the Warner Finance Company; (2) That the said operation was with the consent of the defendants Warner and the Warner Finance Company.

McKnight v. Gilzean

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STEEL, J.,

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