Woods v. Cook

WOOD, J.

A judgment in the sum of $1138 was recovered by plaintiffs against 6. H. Grace and George J. Cook and Connie Cook, copartners, doing business under the fictitious name and style of Cook’s Auto Supply Co. Prom the judgment an appeal is prosecuted by the defendants Cook. Plaintiff Mrs. Woods was driving an automobile on August

12,

1933, at the intersection of Slauson Avenue and San Pedro Street in the city of Los Angeles, at which time an auto truck owned by defendants Cook and operated by defendant Grace collided with the automobile of plaintiffs. The judgment was for damages sustained by plaintiffs which were caused by the negligent operation of the auto truck. The action was tried before the court without a jury.

Appellants contend that Mrs. Woods was guilty of contributory negligence as a matter of law and consequently the judgment cannot be sustained; also that the evidence was insufficient to support the finding that defendant Grace was driving the truck with permission express or implied of defendants Cook. An examination of the record discloses sufficient evidence to sustain the findings of the court on these issues and the findings are therefore controlling upon this court. A detailed statement of the evidence at this

[562]

time would be inappropriate.

(Koeberle

v.

Hotchkiss, 8

Cal. App. (2d) 634 [48 Pac. (2d) 104].)

The trial was conducted in June, 1935.- Upon the termination of the presentation of plaintiffs’ evidence the court granted a motion to amend the complaint and appellants now contend that this ruling permitted plaintiffs to introduce an entirely new cause of action which had been barred by the statute of limitations. In the original complaint plaintiffs alleged that plaintiff Mrs. Woods was operating an automobile at the intersection in question “when the defendant Grace, an employee of the defendants George J. Cook and Connie Cook, was driving and operating an auto-truck, the property of the said defendants, George J. Cook and Connie Cook, so carelessly and negligently, etc.” By the ruling of the court plaintiffs were allowed to amend by inserting after the words “was driving” the following: “with the express or implied permission of said defendants”. It will be noted that in the original complaint it was charged defendant Grace was an employee of the other defendants and that he was driving a truck which was their property. It was not alleged that he was driving in the course of his employment. Neither was it alleged in the original complaint that he was driving with their permission. Under the circumstances shown it was proper for the court at the close of plaintiffs ’ case to permit them to amend by alleging the capacity in which Grace was driving the truck. By permitting the amendment the court did not prejudice the rights of defendants. It was shown by the evidence that Grace had purchased merchandise from defendants Cook. Proof that Grace was delivering the merchandise in the course of his employment would have sustained a judgment upon the theory of principal and agent and no additional evidence would have been necessary to sustain a judgment based on the statutory liability provided by section 1714¼ of the Civil Code as it was in force at the time of the collision. It was held in