South v. French

[29]

LANGDON, P. J.

This is an appeal from an order of the superior court of the county of Santa Clara denying appellant’s motion to change the place of trial of this action to San Benito County. The action is one to recover damages for personal injuries sustained by the plaintiff in an accident in which an automobile in which he was riding plunged over a precipice into the bed of San Felipe Creek.

The defendant French, who is the appellant here, is the supervisor of district No. 1 of the county of San Benito, and it appears without contradiction that he is a resident of San Benito County. The defendant John Doe, sued by a fictitious name, is alleged to be the roadmaster of the same district in San Benito County, and it also appears that he is a resident of San Benito County.

[1]

The only question presented upon this appeal, then, is whether or not a cause of action has been stated against the remaining defendant, J. A. Phippen, for the joinder as party defendant of one against whom no cause of action is stated, does not deprive the other defendants of the right to have the action tried in the county of théir residence.

(Donohoe

v.

Wooster et al.,

163 Cal. 114, [124 Pac. 730];

Bartley et al.

v.

Fraser et al.,

16 Cal. App. 560, [117 Pac. 683].)

In the case of

South

v.

County of San Benito et al., ante,

p. 13, [180 Pac. 354], which arose out of the same accident, this court .has decided that a pleading containing substantially the same allegations as the complaint in the present case does not state a cause of action against Phippen. The difference in the allegations in the two cases is not sufficient to warrant a different conclusion in this case. In the present case, the plaintiff alleges that he was riding in the automobile of defendant J. A. Phippen as his guest; that said Phippen was driving at a prudent rate of speed; that the plaintiff was unacquainted with the condition of the road and the danger incident to traveling thereon, and was unacquainted with the presence of the sheer drop or perpendicular declivity of about twenty feet from the surface of the roadbed to the bed of said creek; that as the automobile approached the point where said roadway left said creek and terminated in such perpendicular drop or declivity,