Sullivan v. Wright

California Court of Appeal Apr 29, 1954 No. Civ. 15730Published

Before: Nourse

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Holding. The court held that the statute of limitations barred the action against the substituted defendant because the original complaint failed to state a cause of action against any fictitious defendant, and the liability for imputed negligence is a tort action subject to the one-year statute of limitations.

Issues

Is the plea of the statute of limitations waived if raised by a motion to strike?
Does the joinder of a 'John Doe' defendant permit substitution after the statutory period if the original complaint stated no cause of action against the fictitious party?
Is the owner's liability under the Vehicle Code subject to a three-year statute of limitations as a liability created by statute?

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The answer to this question must be in the negative since the original complaint did not state a cause of action against “John Doe” or any fictitious defendant.”

“The cause of action is strictly and solely one in tort for injuries arising out of the negligence of the operator; hence the cause accrues at the time of the negligent act.”

NOURSE, P. J.

Plaintiff sued for personal injuries and property damage against Russell Wright and several fictitious defendants. More than a year after the accident plaintiffs substituted and served an amended complaint on Herman J. Cox (known as Crazy Cox) designating him as the John Doe sued in the original complaint. The trial court granted Cox’s motion to strike this portion of the complaint. Judgment was thereupon entered in favor of William J. Sullivan against both Wright and Cox for the damages to plaintiff’s car, in favor of Michael J. Sullivan for personal injuries against defendant Wright alone in the sum of $6,500 and against defendant Wright alone for costs of suit.

Briefly the facts are that William J. Sullivan was operating an automobile when the defendant Wright crashed into the rear of his car at a traffic stop signal, injuring the father, Michael J. Sullivan, riding in the car with William. The two plaintiffs joined in their complaint the two causes of action for personal injuries and for property damage. More than a year after the accident plaintiffs filed an amended complaint substituting Cox for John Doe as a party defendant. By demurrer, answer and by motion to strike, the defendant Cox attacked the amended complaint on the ground that it was barred by the one year statute of limitations. The motion to strike was granted.

Three primary questions are raised on the appeal:

(1) Is the defendant Crazy Cox to be deemed to have waived the plea of the one year statute of limitations by failing to demur or answer on that ground?

The question proposed by the plaintiff is not properly stated. Following the filing of the amended complaint joining for the first time Cox as a party defendant, he filed a demurrer, an answer and a motion to strike, all three pleading the bar of the statute of limitations. The demurrer and the motion to strike were heard at the same time and no objection was then made as to the manner in which the plea was made.

Appellant argues that the plea of the statute of limitations cannot be raised by motion to strike. No authorities are cited as so holding. The practice was followed without comment in

Gates

Wendling Nathan Co.,

27 Cal.App.2d

[838]

Sullivan v. Wright

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NOURSE, P. J.

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