Deboe v. Horn

Opinion

SCHWEITZER, Acting P. J.

Facts

Action for damages for personal injuries arising out of an automobile accident. The first cause of action pertains to the plaintiff-husband, allegedly injured in the accident, and is not before us on this appeal. In the second cause of action, plaintiff-wife alleges in part: “As a direct and proximate result of said negligence and carelessness of the defendants, and each of them, plaintiff suffered and continues to suffer profound shock to her nervous system, mental suffering and emotional distress, resulting in her physical injury, including, but not limited to, shock to her nervous cardiovascular systems, all to her damage in the sum of $500,000.”

Defendant Horn demurred to the second cause of action on the grounds that it does not state facts sufficient to constitute a cause of action, and

[223]

that it is uncertain in “that it cannot be told therefrom or from any part thereof, the physical location of plaintiff Rita I. Deboe at the time of the accident, and whether she witnessed said accident, or was in the general area, or that her knowledge of said accident was conveyed to her by some third party.”

The memorandum of points and authorities filed by counsel for plaintiff-wife in the trial court in opposition to the demurrer states in part: “The second cause of action of the complaint does not allege that the . . . [wife] witnessed the injuries to her husband. In fact,

she was not a witness to the accident and was advised of its occurrence by others.

In response to the solicitation of counsel for the demurring defendant, a stipulation to this effect, for the purposes of this demurrer, will be made at the hearing. However, in view of the actual holding in

Dillon

vs.

Legg

. . . [68 Cal.2d 728 (69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316)], it is submitted that such fact does not preclude the . . . [wife], as a matter of law, from asserting a claim for such damages.” (Italics added.)