Melikian v. Truck Insurance Exchange

California Court of Appeal May 18, 1955 No. Civ. 16300Published

Before: Nourse

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Holding. The court held that the complaint failed to state a cause of action because it did not allege that the settlement offer was accepted before the jury returned an adverse verdict, and the plaintiff failed to demonstrate how the complaint could be amended to state a valid claim.

Issues

Whether the complaint sufficiently alleges an acceptance of a settlement offer within a proper timeframe.
Whether the trial court properly sustained a demurrer without leave to amend when the plaintiff failed to show how the complaint could be amended to state a cause of action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“From his failure to allege the time of acceptance we must presume that such an allegation would have been fatal to his ease, and, hence, that there was no acceptance within proper time upon which he could now rely.”

“the presumptions are always against the pleader, and all doubts are to be resolved against him, for it is to be presumed that he stated his case as favorably as possible to himself”

“The argument is not persuasive since he did not appear to defend against the demurrer and has not shown, either to the trial court or on this appeal, how he could amend to plead a triable cause of action.”

NOURSE, P. J.

Plaintiff sued to enforce an offer of settlement for injuries incurred in a motor vehicle accident. A demurrer to his amended complaint was sustained after argument by counsel for defendants, the plaintiff failing to appear for argument in support of his complaint.

The controlling issue on the appeal from the adverse judgment is whether the complaint alleges an acceptance of the offer within time. In approaching that issue we are bound, just as the trial court was bound, by the allegations in the verified complaint and cannot consider the outre-judicial statements of counsel nor the additional facts found in the briefs. The complaint is in plain and simple language and the pleader is bound by the allegations contained therein. The complaint herein alleges that the complaint for injuries was filed on June 27, 1951; that while

[115]

the suit was pending, and on May 5, 1953, an agent of the insurance carrier made an oral offer to the plaintiff to pay the sum of $6,000 in full settlement; that the offer was accepted by plaintiff’s counsel on May 14, 1953; that they proceeded with the trial before a jury which commenced on the 11th day of May, 1953 and ran for four days; that the jury returned a verdict in favor of the defendants. Significantly the complaint fails to allege when the verdict was returned, or whether the evidence, or some portion of it, was presented to the jury before or after the purported acceptance. Also, whether this verdict preceded the alleged acceptance of the offer does not appear from the allegations of the complaint. These were pertinent matters of fact highly essential to plaintiff’s case and fully within his own knowledge. If this acceptance had taken place after the adverse verdict it would have been of no value whatever. If it had been made after the jury was summoned and after the defendants had been put to the expense of trial it was of no value because at that time the consideration for the offer had failed and was not capable of performance. From his failure to allege the time of acceptance we must presume that such an allegation would have been fatal to his ease, and, hence, that there was no acceptance within proper time upon which he could now rely.

(Smith

Melikian v. Truck Insurance Exchange

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NOURSE, P. J.

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