Murray v. Wright

PEEK, Acting P. J.

This is an appeal from a judgment of dismissal entered following the sustaining of defendants’ general demurrer without leave to amend in a personal injury action.

A summary of the facts disclosed by plaintiffs’ complaint shows that one Brown entered a used car lot owned and operated by defendants Wright and Heape and took a car belonging to defendants. The taking was made easy by the fact that defendants had purposely left the ignition keys in the locks of all cars on the lot. Shortly after the taking Brown collided with plaintiffs.

Specifically the complaint sets forth four causes of action. The first is based on the alleged negligence of defendants in maintaining the lot so that persons were able to take automobiles therefrom. The second is based upon Brown’s alleged operation of the car with the implied consent of the defendants as defined in section 402 of the Vehicle Code. The third

[591]

is based upon defendants’ alleged maintenance of a nuisance in so leaving ears on the lot. And the fourth is based upon defendants’ alleged wanton and reckless disregard of the safety of others in so maintaining the used car lot. Counsel for plaintiffs did not appear on the date set for hearing on defendants’ demurrer nor at the continued hearing, and the same was sustained as to all causes of action without leave to amend. This appeal followed.

At the outset the general rule must be borne in mind that unless it is palpably clear that a pleading is not susceptible of amendment so as to state a cause of action, a demurrer thereto should not be sustained without leave to amend.

(Kadota Fig Assn.

v.

Case-Sivayne Co.,

73 Cal.App. 2d 796, 803-804 [167 P.2d 518].)

The first cause, after alleging the ownership and operation by defendants of the lot and the cars located thereon, then alleged that the vehicles were left unlocked by defendants in order

“. . .

to encourage the general public to examine, inspect and operate those certain vehicles on said used ear lot, without regard for the fitness or competence of said general public so to do, and [defendants] knew or should have known that it was common knowledge among the general public in that locale that the keys were at all times left in the ignitions of said unlocked vehicles”; that on the date in question the defendants so negligently and carelessly maintained the lot and the vehicles thereon as to cause the premises to be ‘ ‘. . . unenclosed, unguarded, unprotected and unsupervised . . and that by reason of the alleged carelessness and negligence of the defendants, Brown was induced to take a Buick automobile from the lot. Even if it may be said that such allegations were insufficient in that it does not appear therein that Brown was incompetent to operate a motor vehicle it is alleged in both the third and fourth causes of action that at the time of the taking he was in an intoxicated condition. Obviously, if such had been necessary, under the first cause this fact could easily have been added by amendment.