Sullivan v. Richardson , 119 Cal. App. 367 ( 1931 )

In the first cause of action set up in the complaint the plaintiff alleged, among other things, that she was a passenger in an automobile driven by the defendant McCord and that she suffered injuries through the gross negligence and wilful misconduct of this defendant. In a second cause of action, she alleged that she was so riding as a passenger and that she suffered injuries through the negligence of McCord. At the close of the plaintiff's evidence the court granted a motion for a nonsuit as to the second cause of action.

While the order of nonsuit as to the second cause of action was erroneously entered, no appeal has been taken from the same and the error is immaterial, since the first cause of action sufficiently alleged that the plaintiff was a passenger, and that she suffered the injuries complained of through the negligence of the defendant McCord. Gross negligence necessarily includes negligence, and the fact that the allegation went further than was needed and alleged gross negligence resulted in no harm, and may be treated as surplusage.

As shown in the preceding opinion, the evidence is ample to sustain the finding that the plaintiff was a passenger and not a guest in the automobile in which she was riding (Crawford v.Foster, 110 Cal.App. 81 [293 P. 841]; Smith v. Fall Riveretc. School Dist. et al., 118 Cal.App. 673 [5 P.2d 930]). The evidence is also ample to sustain the finding that the driver of the car in which the plaintiff was riding was guilty of negligence, and that this negligence was, jointly with the negligence of another defendant, the proximate cause of the injuries complained of. We concur in the conclusion reached in the preceding opinion.

The judgment appealed from is affirmed.

Marks, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on January 19, 1932, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 18, 1932.