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District Court of Appeal, Fourth District, California.


Civ. 3047.

Decided: June 04, 1943

Joseph D. Taylor and John S. Bolton, both of Los Angeles, for appellants. Fred O. Reed, Richard L. Kirtland, and Henry E. Kappler, all of Los Angeles, for respondent.

This is a malpractice action. The defendant Innis filed a demurrer to the second amended complaint on the grounds, among others, that there was a misjoinder of parties and a misjoinder of causes of action. The plaintiffs have appealed from a judgment based upon an order sustaining his demurrer without leave to amend.

A demurrer to a first amended complaint had been previously sustained with leave to amend. The allegations of the four causes of action in the first amended complaint are summarized in Kraft v. Innis, 57 Cal.App.2d 637, 135 P.2d 29. The only material change in the second amended complaint is the addition of a “doubt” allegation in the third cause of action. In the second amended complaint, the first cause of action alleges that on June 15, 1940, the plaintiff wife employed the defendants to treat certain injuries sustained by her, including broken bones and broken teeth; that on that date she entered the San Joaquin Hospital in Kern County; that she was there treated by the defendant Joseph Smith; that he was negligent in the manner in which he set her bones and in failing to take X–ray pictures; and that she was thereby damaged in the sum of $25,000. The second cause of action, which is not material here, alleges negligence on the part of the defendant Samuel Smith in treating and repairing her teeth, to her damage in the sum of $25,000. The third cause of action alleges that on June 24, 1940, Mrs. Kraft employed this respondent to treat certain injuries sustained by her, and entered a hospital in Los Angeles County for said treatment; that said injuries were the same which had been treated by Dr. Smith and arose out of the same accident; that the plaintiffs are in doubt as to whether they are entitled to redress from Dr. Smith or from this respondent, or both; that this respondent failed to make the necessary observations and to take the necessary X–ray pictures, by reason whereof the plaintiffs are unable to determine whether or not Mrs. Kraft's present condition is the proximate result of the negligent treatment by Dr. Smith or of the negligence of this respondent; and that this respondent negligently treated her to her damage in the sum of $25,000. The fourth cause of action repeats, by reference, most of the allegations of the other three causes of action and alleges that by reason thereof the plaintiff husband has been forced to incur certain medical expenses.

The controlling question is whether a misjoinder of causes of action here appears. These several causes of action allege separate consequential damages following unrelated torts attributed to separate defendants at different times and places, with no concurrence between the acts of negligence and no connection between the defendants thus separately acting. The uniting of such causes of action seems to be forbidden by section 427, which provides that the causes of action which may be united under its provisions “must affect all the parties to the action.” (All section numbers herein refer to the Code of Civil Procedure.)

The appellants argue that the joinder here in question is authorized by section 379a, which provides that all persons may be joined as defendants against whom the right to any relief is alleged to exist and, more particularly, by section 379c, which provides that defendants may be joined where the plaintiff is in doubt as to the person from whom he is entitled to redress. These sections relate to the parties to an action but in passing upon what is intended thereby section 427, which relates to the causes of action which may be joined, must be also considered and its provisions given effect, where possible, under the usual rules of statutory construction.

The sections thus relied on have been discussed in several cases in this state under varying sets of circumstances. In Busset v. California Builders Co., 123 Cal.App. 657, 12 P.2d 36, 40, it was held that there was a misjoinder of parties. In discussing sections 379a and 379c, the court said: “The sections should be liberally construed in furtherance of administrative efficiency, but should not be so loosely applied as to bring into court upon bare conjecture a distinct personality, who is pictured not in combination or collaboration with, or as a presumptive agent of, some other party defendant, but as a wholly independent actor. A mere doubt or suspicion is not enough to bring section 379c into play. There must be some nexus associating the defendants in an event or series of events productive of the injury complained of, under such circumstances that, while there is certainty as to the alleged wrong to be righted, there is uncertainty as to which of two or more individuals implicated is legally liable therefor. As is said in Klein v. Betzold, 119 Misc. 505, 197 N.Y.S. 501, and repeated in Freund Coat Corp. v. Lipschutz, 135 Misc. 553, 238 N.Y.S. 239, the doubt contemplated in the section must be ‘a fair doubt as to whom plaintiff should look to right a single wrong, and not a doubt as to whether one or several persons have separately wronged plaintiff.’ ”

These principles were quoted with approval in San Francisco M. Co., Ltd., v. Mordecai, 134 Cal.App. 755, 26 P.2d 669, 671, where there were four distinct causes of action, each seeking relief against but one defendant, there being nothing alleged to connect any one of the causes of action with any other. In that case, it was said: “In Garrett v. McAllister, 137 Misc. 721, 244 N.Y.S. 283, 286, the court, in construing section 213 of the Civil Practice Act of New York, which is identical with section 379c of our Code, said: ‘It (sec. 213) does not apply where the plaintiff's only doubt is whether a particular defendant is or is not liable. It does not authorize a plaintiff, who asserts a cause of action against one party concerning which no uncertainty exists, to combine with it a cause of action against others upon allegations that they also “may” be liable. * * * Even where the action is properly in the alternative, it must appear that there exists a cause of action in favor of the plaintiff against the defendants collectively considered, although the plaintiff is not able to identify among them the author of the wrong.’ ”

In Morris v. Duncan, 14 Cal.App.2d 635, 58 P.2d 669, the plaintiff was injured when an automobile in which she was riding crashed through a barricade and dropped into a stream bed. The driver of the car and the County of Los Angeles were joined as defendants, it being alleged that the driver disregarded the barricade and the danger sign and also that the barricade and signs maintained by the county were insufficient. It was further alleged that the plaintiff was in doubt as to which defendant was liable or whether they both were. In discussing sections 379a and 379c the court approved the rules laid down in Busset v. California Builders Co., supra, but held that the two possible causes of the wrong, as alleged, were so linked together as to justify the joinder under these rules. The only cause of action alleged affected all parties to the action.

In Peters v. Bigelow, 137 Cal.App. 135, 30 P.2d 450, only one transaction or incident was involved, although two plaintiffs were affected. It was held that there was no misjoinder of parties because the 1927 amendment to section 378, permitting the joinder of plaintiffs whose claims to relief arose out of the same transaction, had the effect of excepting the matter of parties plaintiff, covered by section 378, from the requirements of section 427. The reason for permitting the joinder of the causes of separate plaintiffs which arise out of the same transaction or incident, and which involve the same defendants, is clearly apparent. To permit a joinder of defendants on causes of action arising from separate and distinct incidents occurring at different times and places, in no way connected in their origin, and involving different witnesses and evidence, is quite a different matter. In this regard it is most suggestive that the legislature has not seen fit to similarly amend section 379 to except the matter of parties defendant from the requirements of section 427.

The distinction thus recognized in our statutes is clearly maintained and followed in other decisions in this state which involve circumstances more nearly similar to those with which we are here concerned. In Ramsey v. Powers, 74 Cal.App. 621, 241 P. 567, 568, it was held that since the evidence disclosed that two separate torts had been committed by the defendants at different times and the two defendants had not acted jointly, the two tortious acts “constituted two different, distinct and independent transactions carried out by two different persons acting independently of each other.” The court then said: “* * * the plaintiff not only failed to show that the defendants were joint tort–feasors, but that the evidence affirmatively shows that they acted in two entirely different transactions and independently of each other, or, in other words, that there was, in the carrying out of the two transactions, no concert of purpose between them. It follows that there is here not only a misjoinder of parties defendants, but a misjoinder of causes of action. For these reasons alone, if for no other, there was no alternative left to the trial court but to grant the motion for a nonsuit. The authorities are quite uniform upon this proposition.”

The court then quoted from Miller v. Highland Ditch Co., 87 Cal. 430, 25 P. 550, 22 Am.St.Rep. 254, as follows: “ ‘It is clear that the rule as established by the general authorities is that an action at law for damages cannot be maintained against several defendants jointly, when each acted independently of the others, and there was no concert or unity of design between them. It is held that in such a case the tort of each defendant was several when committed, and that it does not become joint because afterwards its consequences united with the consequences of several other torts committed by other persons.’ ”

The rule thus expressed in Miller v. Highland Ditch Co., is approved and reaffirmed in Slater v. Pacific American Oil Co., 212 Cal. 648, 300 P. 31.

We find nothing in Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 276 P. 1017, 1023, which is inconsistent with these rules. In that case, both of the defendants in question were intimately connected with the same transaction and with the main purpose of the action. It was pointed out that notwithstanding the provisions of section 427, if one of several causes of action affects all of the parties the fact that other causes affect only some of the parties is not sufficient to cause a misjoinder “where all the parties are concerned in the main purpose of the litigation.” The court then said: “Of course, causes of complaint differing in their nature, and having no connection with each other, cannot be united. The object of this exception is to prevent the confusion and embarrassment which would necessarily result from the union of diverse and incongruous matters, but the exception has no application to a case embracing a variety of circumstances, so connected as to form one transaction, even though the parties are not equally affected.”

The appellants argue that in the instant case the fourth cause of action affects all of the defendants and thus comes within the rule announced in the Joerger case. The fourth cause of action makes no new allegation of negligence against the defendants. It adopts, by reference, the allegations of negligence contained in the three preceding causes of action, which were separately stated as against each defendant, and then alleges that as a result of those acts of negligence the plaintiff husband has been forced to incur certain medical expenses. Under the fourth cause of action liability could only be imposed because of the negligence thus alleged and all of the defendants were not affected by any one of these acts of negligence. Moreover, all of the defendants were not concerned in the main purpose of the litigation, which was to recover damages for a present condition caused by and arising from two separate and distinct torts. Each defendant was affected by one of the causes of action but neither was affected by anything which concerned the other.

In Blodgett v. Trumbull, 83 Cal.App. 566, 257 P. 199, 202, it is said that the courts are disposed to give a liberal construction to section 427, “to the end that closely related controversies between the same parties may be adjudicated at one time.” Under the circumstances which here appear, section 427 should not be given an entirely different meaning under the guise of construction. Moreover, the two controversies which are material here are not closely related ones between the same parties, within the meaning there intended. As between this respondent and the doctor in Bakersfield no connection existed, either in their employment or in their negligence, if any. Separate acts of negligence on the part of each are alleged and separate causes of action affect them separately and do not affect both of them as required by section 427. The two torts are separate and distinct and in no way connected. The one occurred in Kern County, and involves acts done by one of the defendants at a time when Mrs. Kraft was in a certain condition, and under the standard of practice which prevails there. The other involves acts at a different time in Los Angeles County, where the standard of practice may well have been different, and when the patient was in a different condition. Not only would different evidence, in large part, be required on the part of the plaintiffs in support of the respective causes of action, but the evidence and witnesses on behalf of the respective defendants would be almost entirely different. Nor can it be fairly said that each of these defendants contributed to the same injury. The injury for which each is liable is that caused by his respective negligence. These acts of negligence, if any, were separate and distinct and each caused a different injury, and the fact that the injured party in each case happens to be the same person is not controlling. It seems apparent that, under our statutes, a cause of action for injuries suffered in an automobile collision in one county may not be joined with a cause of action for another and further injury to the same party in a later accident in a different county. We see no difference in principle between such a case and the one now before us. Sections 379a and 379c should be considered and construed in connection with section 427. So considered and construed, we think they do not permit the joinder of the separate and distinct causes of action here in question.

The judgment is affirmed.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ., concur.