Phillips v. Gonzales

STURTEVANT, J.

The trial court sustained a demurrer to plaintiff’s complaint without leave to amend. Later it entered a judgment that the plaintiff take nothing by this action. From that judgment the plaintiff has appealed.

On the 4th day of December, 1938, at a point about one-half mile south of San Benito River bridge, on Highway 101, the plaintiff’s automobile collided with another automobile being driven by August Gonzales. For his personal injuries and also for injuries to his automobile the plaintiff commenced this action to recover damages. He pleaded his cause of action in two counts. The first cause of action was directed against August Gonzales who was driving the other automobile. No other person than the plaintiff and August Gonzales is mentioned therein. Appropriate allegations were inserted to recover damages for personal injuries in the sum of $65,298.23. Other allegations were inserted to recover damages for injuries to the automobile in the sum of $400.

In the second cause of action the plaintiff by reference pleaded all of the allegations in the first cause of action. Continuing he pleaded the fact that William H. Scagliotti was the owner of the automobile which Gonzales was driving; that Scagliotti died the next day; that Bernice, his wife, has been appointed executrix of his estate; that on the 23d day of December, 1938, she first published notice to creditors; that on the 4th day of May, 1939, plaintiff filed his claim, and that the claim was rejected.

Later he commenced this action. Among others he served process on Bernice Scagliotti as executrix of the estate of her deceased husband. In due time she appeared and filed a demurrer. Among other grounds therein stated she alleged that the first cause of action did not state facts sufficient. Obviously it did not. Neither this defendant nor her deceased husband is mentioned directly or indirectly in the first cause of action.

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As recited above, the second cause of action was pleaded against both Gonzales and this defendant. The plaintiff pleaded damages for personal injuries in the sum of $65,298.23 and damages for injuries to his automobile in the total sum of $400. The gross sum prayed for was $65,-698.23. The defendant alleged in her demurrer that the second cause of action did not state facts sufficient, because, as she contends, the tortious act alleged to have been committed by her deceased husband for injuries to the person of the plaintiff abated with the death of her husband.