Rice v. Wright

WOOD, P. J.

This is an action for damages for personal injuries caused when a chauffeur-driven automobile in which plaintiff was riding ran into the rear end of a stopped bus.

The defendant (chauffeur) objected to the introduction of evidence on the ground that the amended complaint as further amended did not state facts sufficient to constitute a cause of action. It was amended by various interlineations, and upon a stipulation by which various statements of fact appearing in the pretrial order and joint pretrial statement were included as allegations. The objection was sustained without leave to amend, and judgment of dismissal was entered. She appeals from the judgment.

After the amended complaint was amended, by incorporating therein by reference such excerpts from the

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pretrial proceedings, no further amended complaint was made showing in one document the allegations constituting the intended second amended complaint. As a result thereof, it is difficult to comprehend the form and substance of the intended second amended complaint.

In order to have a consolidated statement of the second amended complaint before the court, it would be necessary for this court to assemble the several portions of the various documents from which allegations have been imported into the complaint by oral stipulation. If that were done it would appear clearly that the complaint contained inconsistent and conflicting allegations. Even though there was a stipulation that plaintiff could not amend further, it would seem that she could amend further at least to the extent of removing the inconsistencies and conflicts.

A general statement of the basis of the asserted action is that the plaintiff Mrs. Rice was riding in the rear seat of an automobile with her sister Mrs. Mary Overseth, and that the defendant Willie Wright, the chauffeur who was driving the automobile, drove it against the rear end of a passenger bus which had stopped on Wilshire Boulevard, near Cloverdale Avenue, in Los Angeles. There were allegations regarding the ownership of the automobile and the employment of the chauffeur, which allegations were inconsistent and conflicting as hereinafter indicated. (The action was dismissed by plaintiff as to Mr. Oliver Overseth [husband of Mrs. Mary Overseth], who had been named as a party defendant. Mrs. Overseth had not been named as a party. The chauffeur was the only remaining defendant.) It was the theory of the defendant, in making the objection to the introduction of evidence, that under the allegations of the proposed second amended complaint the plaintiff was riding in the automobile as the guest of her sister Mre. Overseth, who was the employer of the defendant chauffeur, and since she was such a guest there was no liability on the part of the defendant chauffeur in the absence of allegations that the injury to plaintiff proximately resulted from the intoxication or wilful misconduct of the chauffeur. The theories of plaintiff were (1) that she was a passenger (not a guest) and that there was liability on the part of the defendant chauffeur for failing to exercise ordinary care in operating the automobile; and (2) that even if she were a guest there was an allegation sufficient to show that the injuries proximately resulted from the wilful misconduct of the chauffeur. That allegation was to the effect