HOLMES v. DAVLD BRICKER INC

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

Ray C. HOLMES and Lucille Holmes, Husband and Wife, Plaintiffs and Appellants, v. DAVLD H. BRICKER, INC., a corporation, Defendant and Respondent.

Civ. 33012.

Decided: September 11, 1968

Ira Jacoves, Los Angeles, for plaintiffs and appellants. Dulaney W. Palmer, Hollywood, for defendant and respondent.

This is an appeal from a judgment of the Municipal Court for the Los Angeles Judicial District dismissing plaintiffs' action after defendant's demurrer to the complaint was sustained without leave to amend. The judgment of dismissal was affirmed by the appellate department of the Superior Court of Los Angeles County by a divided court. On certification of the cause by the appellate department, we transferred the cause to this court pursuant to Rule 62, California Rules of Court.

On September 6, 1963, plaintiffs, husband and wife, filed a complaint in the Superior Court for Los Angeles County against defendant David H. Bricker, Inc. (action number 824974), to recover damages each of them had allegedly sustained in an automobile accident on September 15, 1962. In their ‘First Cause of Action’ they alleged that on August 24, 1962, they bought a used automobile from defendant; that the written purchase agreement included an express warranty reading: ‘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’; and that they relied on said warranty, paid the consideration, and took possession of the automobile. Plaintiffs then allege that on September 15, 1962, within 30 days after the date of delivery of the automobile and before it had been driven 1,000 miles, and while plaintiff husband was driving the automobile, ‘the brakes of said vehicle failed, causing the automobile to crash into a fixed object,’ with the result that they each suffered severe personal injuries, etc. For a ‘Fifth Cause of Action’ they alleged that when defendant sold them the automobile it wrongfully and fraudulently represented to them ‘that said automobile was in good working condition knowing that the plaintiffs were relying upon said representations and statements,’ whereas, defendant knew at the time, or should have known, that the brakes were not in good working order.1

On February 23, 1966, plaintiffs filed an action in the municipal court for damages for the destruction of the automobile, save for its salvage value. The allegations of their ‘first cause of action’ as to the purchase of the automobile, the written warranty, the failure of the brakes, and the crash of the automobile into a fixed object, are identical with the allegations of the ‘first cause of action’ alleged in the complaint filed in the superior court in September 1963. The allegations of the ‘second cause of action’ in the municipal court case relating to the false and fraudulent representations of defendant as to the condition of the automobile at the time of the sale are identical with the allegations of the ‘fifth cause of action’ alleged in the complaint filed in the superior court.

In February 1967 defendant demurred to the complaint in the municipal court on the grounds (1) ‘That there is another action pending between the same parties for the same cause,’ and (2) ‘That the second cause of action based on fraud has been tried in the Superior Court of the State of California for the County of Los Angeles in an action entitled Ray C. Holmes and Lucille M. Holmes, husband and wife, vs. David H. Bricker, Inc., a corporation, in Superior Court Case No. 824974, resulting in a motion for dismissal on said cause of action based on the identical facts herein and is res judicata.’ A copy of the complaint in the superior court action is attached to the points and authorities filed in support of the demurrer. Defendant argued in the municipal court that a party may not split his cause of action and make it the basis for two court actions, and that the first such action may be pleaded in bar of the second action based on the same claim. Defendant also contended that where the conclusiveness of the judgment in the first action appears on the face of the record, a general demurrer will lie to the complaint in the second cause of action on the ground of res judicata. On August 17, 1967, the following minute order was entered in the municipal court: ‘Demurrer sustained without leave to amend. Plaintiffs could and should have urged in the Superior Court action the claim that is now made in the first cause of action.’ The court denied plaintiffs' motion for reconsideration on September 6 on the authority, noted in the minutes, of Wulfjen v. Dolton, 24 Cal.2d 891, 151 P.2d 846; McFaddin v. H. S. Crocker Co., 219 Cal.App.2d 585, 33 Cal.Rptr. 389, and 62 A.L.R.2d 977. The judgment of dismissal followed.

The only question on appeal, as certified to us by the appellate department is: May one who suffers personal injuries and who sustains property damage in an automobile accident maintain separate actions, the one for the property damage, and the other for damages for personal injuries? The appellate department answered this question in the negative. In doing so the majority of the court said in its memorandum opinion: ‘The majority rule in the United States is that a single act causing simultaneous injury to the physical person and property of one individual gives rise to only one cause of action and not to separate causes based on the one hand on the personal injury and on the other the property loss. (Note 62 A.L.R.2d 977 at 982.) The result of this rule is that even though the tort victim failed to include all damages suffered in the first action, he cannot sue again. The later cases align California with the majority rule. (Kidd v. Hillman [1936] 14 Cal.App.2d 507, 58 P.2d 662; and see Commercial Standard Ins. Co. v. Winfield [1938] 24 Cal.App.2d 477, 75 P.2d 525 and Pacific Indemnity Group v. Dunton [1966] 243 Cal.App.2d 504 at 508, 52 Cal.Rptr. 332.) We feel we should follow these later cases.’ Kidd v. Hillman, 14 Cal.App.2d 507, 58 P.2d 662 and Commercial Standard Ins. Co. v. Winfield, 24 Cal.App.2d 477, 75 P.2d 525, are cited by the annotation in 62 A.L.R.2d at 982 in support of the majority rule.

In our opinion the majority rule as stated in the annotation in 62 A.L.R.2d at 982 prevails in this state. In Kidd v. Hillman, supra, the factual situation is virtually the same as that in the case before us. In that case plaintiff was involved in an automobile accident on January 18, 1931. In January 1932 she filed an action for damages for personal injuries and for damages to her clothing, allegedly caused by defendant's negligence. That action resulted in a verdict and judgment of $1,000 in her favor. After plaintiff, for the sum of $950, executed a release of defendant from all liability by reason of his imputed negligence, a satisfaction of the judgment was entered. Thereafter she filed a second action for damages to her automobile and for loss of its use caused by defendant's alleged negligence in the same accident. On appeal by defendant from the judgment in favor of plaintiff in this second action, it was held, reversing the judgment, that the release was binding on plaintiff and that, in any event, plaintiff may not split her cause of action. An insured, said the court (p. 510, 58 P.2d p. 663) ‘may not split his cause of action, and the insurer [as subrogee] is in no better position than the insured. Plaintiff in her original action recovered for injuries to her person and property. She cannot now pursue appellant in another action for damage to her property arising out of the same accident.’ In Commercial Standard Ins. Co. v. Winfield, supra, in which the facts were also similar to those here and in Kidd, the court affirmed a judgment for defendant, holding that he was entitled to rely on the rule against the splitting of causes of action. (See also Pacific Indemnity Group v. Dunton, 243 Cal.App.2d 504, 508, 52 Cal.Rptr. 332, to the same effect.)

The reasons for the rule against the splitting of a single cause of action are stated in Wulfjen v. Dolton, 24 Cal.2d 891, 894–895, 151 P.2d 846, 848: ‘It is clearly established that a party may not split up a single cause of action and make it the basis of separate suits, and in such case the first action may be pleaded in abatement of any subsequent suit on the same claim. 1 C.J.S. Actions § 102, p. 1306; Quirk v. Rooney, 130 Cal. 505, 62 P. 825; Bingham v. Kearney, 136 Cal. 175, 68 P. 597; Paladini v. Municipal Markets Co., 185 Cal. 672, 200 P. 415. The rule against splitting a cause of action is based upon two reasons: (1) That the defendant should be protected against vexatious litigation; and (2) that it is against public policy to permit litigants to consume the time of the courts by relitigating matters already judicially determined, or by asserting claims which properly should have been settled in some prior action. Thus, it is said in Bingham v. Kearney, supra, 136 Cal. at page 177, 68 P. at page 597: ‘It is not the policy of the law to allow a new and different suit between the same parties, concerning the same subject-matter, that has already been litigated; neither will the law allow the parties to trifle with the courts by piecemeal litigation.’'

In the case before us, the basis of plaintiffs' claims in the municipal court action is the same as that presented to the court in the superior court action; in both cases they claimed to have been damaged by defendant's breach of warranty and by its fraudulent misrepresentations as to the condition of the brakes on the automobile. “It is well settled in this state that a party may not split a single cause of action, using the same obligation as the basis of separate suits, and that where this is done the judgment in the first action may be pleaded as a bar to a subsequent suit based on the same fundamental claim which could have been presented in the first action. [Citations.]' (McCaffrey v. Wiley, 103 Cal.App.2d 621, 623, 230 P.2d 152.) This rule is generally applicable with respect to the subsequent litigation even though the plaintiff was not aware of the particular elements of damage therein sought to be recovered at the time of the pendency of the prior action. (Van Horne v. Treadwell, 164 Cal. 620, 622, 130 P. 5; McNulty v. Copp, 125 Cal.App.2d 697, 707, 271 P.2d 90.) * * * The stated rule is merely another application of the doctrine of res judicata, pursuant to which the first judgment acts as a bar to the prosecution of the second action. (McNulty v. Copp, supra, 125 Cal.App.2d 697, 705, 271 P.2d 90.)' (McFaddin v. H. S. Crocker Co., 219 Cal.App.2d 585, 589, 33 Cal.Rptr. 389, 392.)

In the case before us plaintiffs contend that the rule against splitting causes of action is not applicable because, by reason of defendant's acts, they have two distinct causes of action, the one for damages for personal injuries, and the other for damages to their property. In support of this contention they cite Stout v. Pearson, 180 Cal.App.2d 211, 4 Cal.Rptr. 313, and Witkin, California Procedure, Judgment, section 64, at page 1951. Witkin, in turn, cites Todhunter v. Smith, 219 Cal. 690, 694, 28 P.2d 916, and Pratt v. Vaughan, 2 Cal.App.2d 722, 38 P.2d 799. Their position is that, in such a case, they may unite their several causes of action but are not required to do so.

The question before the court in Todhunter v. Smith, supra, was whether plaintiff's action in the superior court against Smith for damages for personal injuries arising out of an automobile collision was barred by the judgment of the municipal court in Smith's action for damages to his automobile arising out of the same collision. In the municipal court action Smith sued to recover damages to his automobile. Todhunter counterclaimed for damages to his autotruck. Smith lost his case and the court denied the counterclaim. In the superior court action Todhunter recovered a judgment. On appeal it was held that Todhunter should have counterclaimed in the municipal court to recover his damages for personal injuries. In reversing the judgment for Smith the court said (p. 693, 28 P.2d p. 918): ‘In an action for damages to plaintiff's automobile sustained in a collision with defendant's automobile, defendant's separate causes of action for damages to his automobile and for personal injuries sustained in the collision arise out of the transaction set forth in the complaint as the foundation of plaintiff's claim, under the provisions of section 438, subdivision 1, as it read before the 1927 amendment. Under section 439, which continues in force, counterclaims of this nature must be set up unless they exceed the jurisdictional limit of the court in which the complaint is filed. Where separate causes of action for personal injuries and for damages to the automobiles involved arise from an automobile collision, such accident may be said to be the ‘transaction’ out of which said causes arise. Engleman v. Superior Court, 105 Cal.App. 754, 288 P. 723; Morris v. Warner, 207 Cal. 498, 503, 270 P. 152; Story & Isham Commercial Co. v. Story, 100 Cal. 30, 34 P. 671.'2

As we read it, the decision in Todhunter is not helpful to plaintiff here in that the court there assumed but did not decide that the automobile accident gave rise to separate causes of action for damages for personal injuries and for damages to property. In view of the provisions of section 439 of the Code of Civil Procedure that assumption was not necessary to the decision.

Pratt v. Vaughan, 2 Cal.App.2d 722, 38 P.2d 799, is also distinguishable from the case before us. There defendant pleaded, in bar to plaintiff's action in the superior court for damages for personal injuries arising out of an automobile accident, the judgment in favor of defendant in plaintiff's action in the municipal court for damages to his automobile arising out of the same accident. On appeal from a judgment for defendant in the superior court action, appellant contended that (p. 723, 38 P.2d p. 800) “the damage to property and injury to person, although resulting from the same wrong, are infringements of different rights and give rise to separate causes of action, and the recovery under one cause of action can not be pleaded in bar of a recovery on the other cause of action.” This contention, said the court in affirming the judgment, overlooks the true basis for the determination of the case by the trial court. ‘The judgment in the municipal court action operated as an estoppel to preclude this appellant from contending to the contrary of those matters of fact, to wit, the issues of negligence and contributory negligence, which were put in issue and solemnly found against him. (Koehler v. Holt Mfg. Co., 146 Cal. 335 [80 P. 73].)’ (Pratt v. Vaughan, supra, p. 724, 38 P.2d p. 800.)

Similarly, we find nothing in Stout v. Pearson, 180 Cal.App.2d 211, 4 Cal.Rptr. 313, to sustain plaintiffs' contention. That case involved plaintiffs' action against defendant Pearson for damages sustained by them as a result of an automobile accident and the cross-complaint of defendant Pearson and his wife for damages resulting from the same accident. The opinion does not disclose whether either of the parties sought damages to their respective automobiles as distinguished from damages for personal injuries. At the trial defendant had judgment on plaintiffs' complaint, and the cross-defendants had judgment on their cross-complaint. Plaintiffs' motion for a new trial on the cross-complaint was granted. On appeal from the judgment for cross-complainants on the new trial, the court simply held that a retrial of the issue of plaintiffs' negligence was not barred by the doctrine of res judicata because it could not be determined what issues had been decided by the jury in its general verdict in favor of the defendant Pearson on plaintiffs' complaint. The rule against splitting causes of action was not involved or discussed.

Even if we were to hold, which we do not, that involvement in an automobile accident gives rise to two separate causes of action, the one for damages for personal injuries and the other for damages to the automobiles involved, there is no doubt that ‘such accident may be said to be the transaction out of which said causes arise,’ at least within the meaning of the provisions of the Code of Civil Procedure relation to counterclaims and cross-complaints. (Todhunter v. Smith, 219 Cal. 690, 693, 28 P.2d 916; Engleman v. Superior Court, 105 Cal.App. 754, 756, 288 P. 723.) In a similar case the court said: ‘The law abhors a multiplicity of actions, and the obvious intent of the Legislature in enacting the counterclaim statutes Code Civ.Proc. §§ 438–439 was to provide for the settlement, in a single action, of all conflicting claims between the parties arising out of the same transaction. (23 Cal.Jur. § 4, pp. 221–222.) Thus, a party cannot by negligence or design withhold issues and litigate them in successive actions; he may not split his demands or defenses; he may not submit his case in piecemeal fashion. Brunswig Drug Co. v. Springer, 55 Cal.App.2d 444, 449–450, 130 P.2d 758.’ (Flickinger v. Swedlow Engineering Co., 45 Cal.2d 388, 393, 289 P.2d 214, 217.)

In our opinion there is all the more reason to apply the same rule to the case of a plaintiff who claims that he is entitled to damages for personal injuries and damages to his automobile when those claims arise out of the same accident. By holding, as we do, in accordance with the majority rule that in such a case all claims of the injured party arising out of the same accident should be asserted and litigated in one action, we simply recognize the principle that the law abhors a multiplicity of actions. To permit such an injured party to submit his case in piecemeal fashion would inevitably result in unwarranted and vexatious litigation.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  Plaintiffs' second cause of action in the superior court action charged defendant with breach of an express and implied warranty of fitness. Their third cause of action charged defendant with a sale of the automobile without first testing the brakes, as required by section 24007 of the Vehicle Code. Their fourth cause of action alleged that defendant negligently serviced and tested the automobile before the sale and failed to discover that the brakes were defective.

2.  Code of Civil Procedure, section 439 then read: ‘If the defendant omits to set up a counterclaim upon a cause arising out of the transaction set forth in the complaint as the foundation for plaintiff's claim, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor.’

McCOY, Associate Justice pro tem.* FN* Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

HERNDON, Acting P. J., and FLEMING, J., concur.

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