Edgar v. Citraro

THE COURT.

Rose Edgar, one of the plaintiffs above named, and her minor daughter, Florence, were riding in an automobile driven by the defendant Citraro and were injured when • it collided with one driven by the defendant Pratt at the intersection of Fifth and Julian Streets in San Jose. The other occupants of the Citraro car were Mrs. Edgar’s minor son John, and her sister Mrs. Traylen, who were also injured. Several actions for damages grew out of the collision. Two were filed by the plaintiffs herein. In one of them they sought to be indemnified for the financial loss they suffered by reason of injuries to their daughter Florence, and in the other (the present one) they asked for damages on account of the personal injuries sustained by Mrs. Edgar. The former action was consolidated for trial with one brought by the boy John in his own behalf, and a jury awarded Edgar and his wife a verdict. Judgment being entered accordingly, the defendants took separate appeals, and the judgment has this day been affirmed as to both defendants

(John F. Edgar et ux.

v.

Citraro et al.

(No. 6905 and No. 7070),

ante,

p. 178,

post,

p. 762 [297 Pac. 652, 654]). Following the trial of that action the present one was tried before the court sitting without a jury, and the

[185]

court found against both defendants. Judgment was entered in conformity with such findings, from which the defendants have taken separate appeals.

Prior to the commencement of the trial of this action, defendants presented separate motions for leave to file amended and supplemental answers so as to plead as a bar to the present action the pendency of the other action and the judgment entered therein. The motions were denied, and the trial court’s rulings in that regard furnish the grounds for the present appeals, it being contended that the right of Edgar and his wife to damages on account of the collision constituted but one inseverable cause of action; and that therefore, since they split the same into two demands and brought one action on each, the first action was a bar to the second. Only a few authorities have been cited by respondents in opposition to the foregoing contention and those which are cited are far from the point, and consequently have not been at all helpful in determining what appears to be a serious question of pleading. However, upon analyzing the arguments made by appellants and the authorities they have cited in support thereof, it will be found we think that their contention is based upon a confusion of the meaning of the term “cause of action”, and consequently is unsound.