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District Court of Appeal, Second District, Division 2, California.

EADS et al. v. MARKS et al.*

Civ. 18653.

Decided: March 19, 1952

Robert H. Green, Los Angeles, for appellants. Jennings & Belcher, Los Angeles, George M. Henzie, Los Angeles, of counsel for respondent.

From a judgment in favor of defendants prejudicated upon the sustaining of their demurrer without leave to amend to plaintiffs' amended complaint, plaintiffs appeal.

Facts: It was alleged in plaintiffs' amended complaint as follows: ‘That on or about December 1, 1948, at which time the said plaintiff, Rand Edison Eads, was of the approximate age of one year, the defendants and each of them were informed by the plaintiff, Harold Madison Eads, and by Lenore Eads, the wife of said plaintiff, that no dairy products, glass containers, milk or milk bottles were to be left at the said residence of plaintiffs' except in the refrigerator in the house, and that all empty milk bottles and glass containers for the defendants would be left within the house. That at said time plaintiff, Harold Madison Eads, and his said wife informed the defendants that if said dairy products or the containers therefor were left within the reach of the minor child that said minor child might be injured by picking up, dropping or tripping over such dairy products and/or the glass containers therefor, and further informed the defendants and each of them that in the absence of plaintiffs, empty glass containers would be placed upon the back porch of said residence with a memorandum or note stating that no milk or dairy products were to be left; and the defendants and each of them agreed to said request and informed the plaintiff, Harold Madison Eads, and his said wife that none of said products or glass containers therefor would be left except within said refrigerator, and that empty glass containers would be removed by defendants from the back porch, and not left at said residence upon the regular delivery times; that on or about August 12, 1949, defendants and each of them negligently, carelessly and wrongfully placed, deposited, left, and permitted to remain a glass milk container upon the back porch of said residence, and the said minor plaintiff, picked up said container and fell off the porch, causing the container to break within close proximity to his face; that as a direct and proximate result of the negligent and wrongful acts of the defendants the said Rand Edison Eads was caused to suffer severe and permanent injuries, pain and suffering, all to his damage in the sum of $25,000.00.’

Questions: First: Did plaintiffs' complaint as amended disclose that defendants' negligent act was the proximate cause of the injuries to the minor plaintiff?

No. A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, where there intervenes between such prior or remote cause of the injury a distinct and related cause. (Royal Insurance Co. v. Mazzei, 50 Cal.App.2d 549, 557[7], 123 P.2d 586.)

The foregoing rule is applicable to the facts pleaded in the amended complaint. It is to be inferred from the amended complaint that the empty container was placed on the back porch by either the plaintiff parent or his wife. In any event, the proximate cause of the plaintiff minor's injury was the falling from the porch of the child and not the negligent leaving of the milk bottle on the porch. Therefore the trial court properly sustained the demurrer to the complaint as amended.

Second: Did the trial court commit prejudicial error in sustaining the demurrer to the amended complaint without leave to amend?

No. The complaint as amended by plaintiffs was substantially the same as the original complaint to which a general demurrer had been sustained.

An appellate court will sustain the action of the trial court in denying an application for leave to amend a complaint unless it be made to appear that there has been an abuse of discretion. (Rose v. Ames, 53 Cal.App.2d 583, 589 [5], 128 P.2d 65.)

It is likewise settled an appellant must make it appear by the record that the trial court has committed prejudicial error in its ruling. In the absence of such a showing the order appealed from will be affirmed. (Sec. 475, Code of Civ.Proc.* ; Hill v. Hill, 82 Cal.App.2d 682, 696[10], 187 P.2d 28; Private Investors v. Homestake Min. Co., 16 Cal.App.2d 1, 5 [2], 60 P.2d 146.)


I concur in the judgment but cannot subscribe to the reason assigned by the majority as the basis for its decision. The injury to the Eads child was proximately caused by defendants' act. Although it resulted from the independent intervening action of the child such occurrence was readily forseeable and should have been anticipated. Accordingly, had the action been based upon the contract defendants could properly have been found to have proximately caused the harm and therefore be held to answer for the consequences of their own breach of duty. (Mosley v. Arden Farms Co., 26 Cal.2d 213, 218, 157 P.2d 372; Gibson v. Garcia, 96 Cal.App.2d 681, 685, 216 P.2d 119.) It is clear that a person of ordinary prudence should have anticipated some one might be injured by the driver's failure to comply with the agreement. That is a test of the latter's negligence. (Ibid.)

However, plaintiffs' cause of action is predicated upon the breach of defendants' contractual duty and for that reason it cannot be the basis of a tort action. The nature of an action does not depend on the form of the pleading but it determined from the nature of the grievance. (1 Cal.Jur.2d Actions, sec. 29, page 624.) Also, if the gravamen of the complaint is in contract, the nature of the action is not altered by allegations of defendants' tortious conduct. (Dougherty v. California Kettleman Oil Royalties, 13 Cal.2d 174, 182, 88 P.2d 690.) Although the breach of a duty may give rise to an action both in tort and contract, as a general rule ‘if a cause of action arises from the breach of a promise, the action is contractual in nature; if it arises from the breach of a duty growing out of the contract, it is delictual.’ (1 Cal.Jur.2d, supra, p. 624; Peterson v. Sherman, 68 Cal.App.2d 706, 711, 157 P.2d 863.) Where the relation between the parties is purely contractual, no tort liability can be founded upon the breach of duty unless in the absence of the contract the law imposes such a duty merely because of the relationship. (See Prosser on Torts, sec. 33, p. 205.) Illustrations of the latter relationship are set forth in Nathan v. Locke, 108 Cal.App. 158, 287 P. 550, 291 P. 286, as bailor-bailee, carrier-passenger, master-servant and innkeeper-guest.

The situation at bar does not come within the orbit of such protected relationships. No case has been cited where a general duty imposed by law was found to arise from the mere vendor-vendee relationship of the litigants at bar and appellant admits in his reply brief that there would be no general duty to remove the glass containers or to place the products delivered within the house. The recent Texas decision of Ross v. Haner, Tex.Com.App., 258 S.W. 1036, involving a landlord-tenant relationship where the tenant was permitted a tort recovery for the landlord's failure to fulfill his promise to repair a screen and plaintiff-child fell from the window, serves only to demonstrate the opposing views on the problem. (Cf. Stelz v. VanDusen, 93 App.Div. 358, 87 N.Y.S. 716.)


FOOTNOTE.  Section 475 of the Code of Civil Procedure reads: ‘The court must, in every stage of an action, disregard and error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.’

McCOMB, Justice.

FOX, J., concurs.