Lewis v. South San Francisco Yellow Cab Co.

California Court of Appeal Oct 4, 1949 No. Civ. 14107Published

Before: Bray

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Holding. The court held that a nonsuit was properly granted because the plaintiff's evidence constituted a total failure of proof regarding the specific cause of action alleged in the complaint, creating a material variance between the pleadings and the proof.

Issues

Whether the evidence presented at trial supported the allegations of the complaint regarding the defendant's conduct.
Whether a plaintiff may recover on a cause of action not pleaded in the complaint when the proof deviates entirely from the allegations.

Disposition. affirmed

Quotations verified verbatim against the opinion

“[T]he plaintiff must recover, if at all, upon the cause of action alleged and not upon some other which may appear from the proofs.”

“Where, however, the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a ease of variance”

“It is the well established rule that the allegations of a complaint and the proof thereof must be in agreement.”

BRAY, J.

From a judgment entered after order granting defendants’ motion for nonsuit, plaintiff appeals.

The sole question presented is whether there was any evidence to support the allegations of plaintiff’s complaint.

Complaint

While the defendants set forth in the complaint were the South San Francisco Yellow Cab Company, a partnership, Walter Ryan and three Does, answers were filed by Walter

[850]

Ryan, doing business as South San Francisco Transit Company, and Hughlan T. Phillips, “sued as 1st Doe” (actually he was sued as 3d Doe). No point is made of these discrepancies and hereafter they will be disregarded.

The complaint, after alleging operation by defendants of a line of cabs for transportation of passengers for hire, states that at a certain time plaintiff entered one of defendants’ cabs “and was received by defendants as a passenger of said cab for the journey she intended to make. That instead of following her instructions, and disregarding her protests, defendant, Third Doe, drove the cab to a secluded spot west of El Camino Real, in San Bruno, and made improper suggestions and advances to plaintiff. That plaintiff then and there became alarmed at this wrongful conduct of said defendant and believed that she was in danger of being attacked and assaulted by said defendant. That she then and there prevailed upon said defendant to stop the cab, which he did, and she immediately alighted therefrom and started across a field to get away from defendant’s threatened assault and search for help. That it' was a very dark night and a short distance from said cab plaintiff stepped into a depression and fell to the ground and as a result thereof plaintiff broke most of the bones in her left foot.” She then alleges that “plaintiff’s injury was the proximate result of said defendant’s wrongful conduct” and sets forth the extent of the injury, together with allegations of damage resulting therefrom.

A reading of the complaint shows that its gravamen is that the wrongful conduct of the cab driver caused plaintiff to fear that she was in danger of being attacked by him, causing her to flee from his threatened assault, as a result of which she was injured. Now, let us see if there are any facts to support this issue.

Lewis v. South San Francisco Yellow Cab Co.

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BRAY, J.

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