Opinion
Rehearing Denied Nov. 15, 1937.
Appeal from Superior Court, Los Angeles County; George A. Dockweiler, Judge.
Action by Minnie Grant against the Sun Indemnity Company of New York. Judgment for plaintiff, and defendant appeals.
Reversed, with direction to enter judgment for defendant.
COUNSEL
Elbert E. Hensley, of Los Angeles (W. H. Abrams, of Los Angeles, of counsel), for appellant.
Paul Taylor and Noel B. Martin, both of Los Angeles, for respondent.
OPINION
McCOMB, Justice.
From a judgment in favor of plaintiff after trial before the court without a jury in an action to enforce liability on an insurance policy pursuant to the provisions of section 1, Act 3738, Deering’s General Laws of California 1931, volume 2, page 1896, defendant appeals.
Viewing the evidence most favorable to plaintiff, the facts are these:
October 7, 1932, plaintiff received injuries on being struck by an automobile owned by Thomas T. Harbeson and operated with his consent by Herndon Ryon. At the time of the accident there was in force a policy of indemnity insurance issued by defendant covering the operations of the automobile by Mr. Harbeson, the named insured, and in addition any one driving the car with his knowledge and consent. This policy inured to the benefit of any person who should sustain bodily injury by reason of the operation of the automobile by Mr. Harbeson or any other person with his knowledge and consent. It also contained the following provision: "The Company shall not be liable to pay any loss, nor shall any action be brought against the Company to recover under this policy, until a final judgment shall have been recovered against the Assured in a suit covered hereby."
July 18, 1934, plaintiff recovered a judgment in the superior court against Herndon Ryon, from which an appeal was taken to the District Court of Appeal of the State of California, Second Appellate District, Grant v. Ryon, 11 Cal.App.(2d) 101, 53 P.2d 170, and, on affirmance of the superior court’s judgment, a petition for a hearing before the Supreme Court of the State of California was denied March 2, 1936.
The complaint in the present action was filed November 16, 1934. A demurrer was interposed on the ground that the complaint failed to state a cause of action, and on the overruling of the demurrer an answer was filed in which defendant set up as a separate defense the claim that the action had been prematurely filed.
This is the sole question presented for determination:
Will a complaint prematurely filed sustain a judgment if subsequent to the filing of the complaint and prior to the rendition of judgment facts occur which complete plaintiff’s cause of action, and such facts are alleged in a supplemental complaint?
This question must be answered in the negative. It is the established law of this state that plaintiff’s cause of action must exist at the time the complaint is filed and no recovery can be predicated upon a cause of action arising after entry of suit and before the time of trial, even though the material allegations omitted from the complaint are supplied in a supplemental complaint. Kirk v. Culley, 202 Cal. 501, 507, 261 P. 994; Turney v. Shattuck, 96 Cal.App. 590, 596, 274 P. 442; 1 Cal.Jur. 377, § 54 (1921); 1 Cal.Jur. 10 Yr.Supp. 67, § 54 (1936); 21 Cal.Jur. 172, § 118 (1925); 9 Cal.Jur.Supp. 238, § 118 (1936).
In Kirk v. Culley, supra, 202 Cal. 501, at page 507, 261 P. 994, 996, our Supreme Court said:
"A plaintiff’s cause of action must have arisen before the filing of the complaint [citing cases]. Plaintiff may not recover on a cause of action arising after entry of suit and developed by the evidence only during the trial. [Citing cases.]"
In Turney v. Shattuck, supra, the district court of appeal said (96 Cal.App. 590, at page 596, 274 P. 442, 445): "Furthermore, since a supplemental pleading is proper only in aid of the case made by the original complaint, relief cannot be granted upon a supplemental complaint, where the proof shows that the plaintiff had no cause of action when his original complaint was filed. ‘If a party has no cause of action at the time of the institution of his action he cannot maintain it by filing a supplemental complaint founded on matters which have subsequently occurred.’ [Citing cases.]"
It is clear from the facts as stated above that on November 16, 1934, the date the complaint in the present action was filed, a cause of action did not exist in favor of plaintiff and against defendant, because the judgment in Grant v. Ryon et al. was not a final judgment, as the case was still pending on appeal. Jennings v. Ward, 114 Cal.App. 536, 537, 300 P. 129. Thus plaintiff could neither allege nor prove at the date of the filing of the complaint in the instant action a fact essential to his cause of action; i. e., that a final judgment had been obtained against defendant’s assured. This was a condition precedent to defendant’s liability, since the insurance policy issued by defendant provided that "the Company (defendant) shall not be liable to pay any loss, nor shall any action be brought against the Company (defendant) to recover under this policy, until a final judgment shall have been recovered against the Assured. * * *"
Section 4 1/2, article 6 of the Constitution of the state of California; Etienne v. Kendall, 202 Cal. 251, 259 P. 752; Hougland v. Roth Blum Packing Co., 99 Cal.App. 631, 279 P. 159; Parry v. Campbell, 72 Cal.App. 748, 238 P. 127, and Meyer v. Moore, 72 Cal.App. 367, 237 P. 550, to which our attention has been directed, are inapplicable to the present situation, for the reason that in each of the cases cited plaintiff’s cause of action existed at the time the complaint was filed, while, as pointed out in the instant case, plaintiff’s cause of action did not arise until some months subsequent to the filing of the complaint.
For the foregoing reasons the judgment is reversed and the trial court is ordered to enter judgment in favor of defendant.
I concur: CRAIL, P. J.
WOOD, Justice (dissenting).
I dissent. In my opinion the judgment should be affirmed for the reason that there has been no miscarriage of justice. Plaintiff was injured by an automobile owned by Thomas T. Harbeson and driven with the consent of the owner by Herndon Ryon, brother-in-law of Mr. Harbeson and a minor at the time of the accident. An action was commenced against Thomas T. Harbeson, Herndon Ryon, and the father of Herndon Ryon, who had signed the latter’s application for an operator’s license. Before the action was tried Thomas T. Harbeson came to his death when his home was destroyed by fire, and as to him the action was dismissed. Judgment was rendered in favor of the plaintiff against the two Ryons on July 18, 1934, in the sum of $6,963.70. An appeal was taken, and the judgment was affirmed. Upon supplementary proceedings the two Ryons were found to be insolvent.
Mr. Harbeson had been the owner of a Studebaker automobile, and received from the defendant carrier a policy containing a provision for insurance against loss or damage resulting from injury suffered by other persons. Harbeson disposed of his Studebaker automobile and purchased a Chrysler automobile. Upon his request defendant changed the liability coverage so that the Chrysler was substituted for the Studebaker and proper indorsements were made upon the policy. In addition to the provisions set forth in the majority opinion the policy contains this provision: "(a) The liability of the company under this policy shall become absolute whenever loss or damage covered by the policy occurs, and the satisfaction by the assured of a final judgment for such loss or damage shall not be a condition precedent to the right or duty of the company to make payment on account of such loss or damage. Upon the recovery of a final judgment against the assured for any such loss or damage the judgment creditor shall be entitled to have the insurance provided by this endorsement applied to the satisfaction of the judgment." The present action was commenced against the insurance carrier on November 16, 1934, and defendant filed an answer denying that the Chrysler was covered by the policy. At the time of trial plaintiff filed a supplemental complaint setting forth that the judgment against the Ryons had become final.
Section 4 1/2 of article 6 of the Constitution of California provides: "No judgment shall be set aside * * * for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." It has frequently been held that the constitutional provision may be applied to cases in which judgments have been obtained upon complaints lacking in essential allegations when the reviewing courts have been satisfied that there was no miscarriage of justice. It is incumbent upon the appellant to demonstrate that the error complained of his resulted in a miscarriage of justice. Hougland v. Roth Blum Packing Co., 99 Cal.App. 631, 279 P. 159; Parry v. Campbell, 72 Cal.App. 748, 238 P. 127; Meyer v. Moore, 72 Cal.App. 367, 237 P. 550; Etienne v. Kendall, 202 Cal. 251, 259 P. 752. In addition to the provisions above set forth, the policy in question contains the following provision: "No suit or action on this policy or for the recovery of any claim hereunder shall be sustainable in any court of law or equity unless the Assured shall have fully complied with all the foregoing requirements, nor unless commenced within twelve (12) months next after the happening of the loss * * *" It is apparent that defendant has placed provisions in its policy which, if strictly enforced, would put it in position to prevent the recovery of a judgment against it. It is provided in Act 3738, Deering’s General Laws of 1931, that no policy of insurance of the nature of the policy under discussion shall be issued unless there shall be contained therein a provision that in case a judgment be secured against the insurer in an action brought by an injured person the judgment debtor may be required on supplementary proceedings to exhibit any policy carried by him insuring against loss or damage for which the judgment shall have been ordered. In the present case Mr. Harbeson lost his life by a fire which also consumed the insurance policy upon which the action was commenced. It was not possible for plaintiff to examine him under supplementary proceedings and to require the production of the policy. Plaintiff therefore was not in position to learn of the provisions contained in the policy specifying the time when an action upon it might be commenced and it was not until the trial of the present action was in progress that the policy was actually produced. Plaintiff was then confronted with the provisions of the policy prohibiting the filing of the action before the other judgment became final and requiring that it be commenced within twelve months from the date of the accident. There is nothing in the record to indicate that defendant has been prejudiced by the commencement of the present action pending the appeal in the action in which judgment was obtained against the Ryons. Defendant was promptly informed of the accident and at once made an investigation of the facts surrounding it. Defendant’s attorneys appeared on behalf of the Ryons, conducted their defense, and prosecuted their appeal. The trial in the present action was conducted a year after the judgment against the Ryons had become final. After a fair trial the court held that defendant is liable upon the policy. If plaintiff erred as to the proper date for filing the action, it cannot be held that "the error complained of has resulted in a miscarriage of justice." It would be more fitting to hold that a reversal of the judgment would result in a miscarriage of justice.