Horstman v. Krumgold

WOOD (W. J.), J.

Defendant Sarajo Krumgold has appealed from an order of the trial court granting plaintiff’s motion for a new trial as to the second cause of action set forth in the complaint.

Plaintiff commenced the action to recover damages for injuries which she suffered when the automobile driven by defendant, in which she was riding, left the highway and turned over. The accident occurred in the State of Nebraska on July 11, 1940. Plaintiff and defendant were strangers to each other before they took the trip during which the accident occurred and they had agreed to share expenses of the gas and oil. The first cause of action, which was based on the theory that plaintiff was a passenger for compensation, charged defendant with negligence in the operation of the automobile. The second cause of action, which was based upon the theory that plaintiff was a guest in the automobile, charged defendant with gross negligence pursuant to the automobile guest law of the State of Nebraska. When the action was called for trial twelve jurors were called to the jury box and their examination on

voir dire

was commenced, whereupon defendant presented a motion to the court to compel plaintiff to make an election between the first and second causes of action. The motion was granted and plaintiff elected to proceed under the first cause of action. The court then granted defendant’s motion to dismiss the second cause of action. When the evidence had all been received the court, on defendant’s motion, directed the jury to return a verdict for defendant. Thereafter the court granted plaintiff’s motion for a new trial as to the second cause of action.

The court erred in compelling plaintiff to make an election between the two causes of action. Both were based upon the same set of facts and plaintiff had the right to state the facts in different, and if need be, inconsistent counts.

(Goldwater

v.

Oltman,

210 Cal. 408, 423 [292 P. 624, 71 A.L.R. 871].) A litigant who has stated the facts in different counts so as to meet any possible developments in the evidence may not be required to elect between the various causes of action presented either before the trial or at the close of the case. (21 Cal.

[298]