Smith v. McLaughlin

ADAMS, P. J. The complaint filed in this action alleged that plaintiff sustained damage to his automobile by reason of the negligent operation of an Oldsmobile coupe by defendant John Doe (for whom the name William McLaughlin was later substituted) which caused said automobile to collide with plaintiff’s automobile. The complaint further alleged, paragraph III:

“That at said time and place the defendant R. E. McLaughlin was the owner of an Oldsmobile Coupe automobile, which said automobile was being driven by the defendant John Doe; that the plaintiff is informed and believes, and therefore alleges, that at said time and place the defendant John Doe was the agent, servant and employee of the defendant R. E. McLaughlin, and was driving said automobile with the permission and consent of the said R. E. McLaughlin. ’ ’

Defendants demurred to the complaint as failing to state a cause of action, for uncertainty, ambiguity and unintelligi[462]bility in that it could not be ascertained therefrom how or in what manner defendant John Doe was the agent, servant and employee of defendant R E. McLaughlin, or whether or not said John Doe was acting within the scope of his alleged employment. No other grounds of demurrer were asserted. The demurrer was .overruled.

Defendants filed an answer in which they admitted that defendant R E. McLaughlin was the owner of the Oldsmobile coupe, but denied the other allegations of paragraph III of the complaint. They also denied the allegations regarding the negligent operation of said Oldsmobile coupe.

The action was tried by the court sitting without a jury, and resulted in a judgment for plaintiff. Defendants moved for a new trial on the ground that no evidence was introduced to establish that William McLaughlin was the agent, servant or employee of defendant R E. McLaughlin, and that no evidence was offered,, nor was it set forth in the pleadings, that any agent was acting within the scope of his authority; and that the decision was against law for the same reasons. The motion was denied.

The trial court found that defendant R E. McLaughlin was owner of the Oldsmobile coupe, that it was being driven by William McLaughlin with the consent of R E. McLaughlin, and that the defendant William McLaughlin was guilty of negligence which caused the collision and resulting damage.

R E. McLaughlin has appealed, the grounds for reversal being the same "as those urged on motion for a new trial. More particularly, he asserts first that plaintiff’s complaint states two causes of action, one based upon the theory of agency and the. other on the theory that appellant is liable because of his ownership of the Oldsmobile and that it was being driven by William (his son) with his consent; and that said causes of action are not separately stated, thus violating section 427 of the Code of Civil Procedure. Secondly, he argues that plaintiff pleaded on the theory of respondeat superior, but failed to prove agency, and that he should not be permitted to recover on the theory that defendant William McLaughlin was driving the car owned by his father with the latter’s consent, thus rendering appellant liable under section 402 of the Vehicle Code, without having amended his pleading with the consent of the court.