Holmes v. David H. Bricker, Inc.

TRAYNOR, C. J. Plaintiffs brought this action in the municipal court to recover damages for injury to their automobile. The court sustained defendant’s demurrer to the complaint without leave to amend on the ground that the action was barred by a judgment plaintiffs had obtained for personal injuries suffered in the same accident. Plaintiffs appeal from the ensuing judgment of dismissal.1

On August 24, 1962, plaintiffs purchased a used automobile from defendant. The contract of sale contained an express warranty that 11 The used car sold herein is hereby warranted to be in good operating condition and to remain in such condition under normal use and service for a period of 30 days or 1000 miles, (whichever comes first) after delivery.” On September 15, 1962, while Mr. Holmes was driving and Mrs. Holmes was riding as a passenger, the automobile crashed into a fixed object along a downgrade on a mountain road, causing injuries to plaintiffs and damage to the automobile.

On September 6, 1963, plaintiffs filed an action against defendant in the superior court to recover damages for their personal injuries. Their complaint pleaded five causes of action, each of which alleged that the accident was caused by defective brakes. The first cause of action sought recovery for breach of the express warranty quoted above; the second alleged breach of other express warranties and of the implied warranties of merchantability and fitness for the purpose intended; the third alleged defendant’s failure to test and adjust the brakes as required by Vehicle Code section 24007; the fourth alleged negligent servicing, testing, and inspecting; [788]and-fhe fifth sought recovery- on the basis of fraudulent representation that the automobile was in good condition.

On March 9, 1967, a jury returned a, verdict for plaintiffs for $49,400, and the judgment entered on the verdict has become final.

On February 23, 1966, while the personal injury action was pending, plaintiffs filed this action against defendant in the municipal court for $1,138.12, the amount of damage to the automobile-in the 1962 accident. The complaint pleaded-two causes of action. The first was based on the express warranty-in the purchase agreement. It was identical with the first cause of action in the 1963 personal injury complaint except for the damages alleged. The second sought recovery on the basis of fraudulent misrepresentations. It was dismissed by stipulation and thereafter the court sustained defendant’s demurrer to the complaint without leave to amend, on the ground that “Plaintiff could and should have urged in the Superior Court action, the claim that is now made in the first cause of action. ’ ’