Christensen v. Cordova

HENRIOD, Justice:

Defendant appeals from a judgment in favor of Mrs. C for personal injuries, and in favor of Mr. C for both personal injuries and property damage arising from an auto collision on 24 August 1968, tried to the court without a jury, and in which case liability was admitted, but the extent of damages contested. Affirmed, except for Mr. C’s claim for personal injury damages, which claim is remanded for further proceedings not inconsistent with this decision. No costs awarded.

Plaintiffs were policyholders of Reserve Insurance Co. Their policy included coverage for damages collectible from an “uninsured motorist.” Their complaint was to recover 1) personal injury damages for Mrs. C, and 2) damages to Mr. C’s car,— that’s all.

On October 1, 1968, Mr. Wilde, defendant Cordova’s attorney, filed an answer in the nature of a general denial. Wilde, for some undisclosed reason, withdrew as counsel on November 25, 1968, presumably after he learned of a written “Notice of Readiness for Trial,” signed by plaintiffs’ attorney, and dated November 22, 1968,— in which Notice demand was made for a nonjury trial, together with a certification that counsel had been given a copy thereof. This presumptive chronology is reflected in the fact that the Notice was filed with the court on the 25th while the Withdrawal was filed on the 26th of November.

On March 20, 1969, a form letter that set the case for trial on June 24, 1969, was directed to plaintiffs’ attorney, with copy to Mr. Wilde, Mr. Cordova’s withdrawn attorney. Concededly the copy should have been sent to Mr. Cordova, whose address was shown on the return of summons. On the other hand, Cordova, having had an attorney who withdrew, had some kind of a duty to keep track of his own case personally or by new counsel. However, we think the error was not critical in this case, since Cordova was represented by counsel before and at the trial.

From the time the Notice of Readiness was filed, Cordova seems to have been lost in the shuffle or translation until about seven months later, during which time the plaintiffs and Reserve agents engaged in considerable, but unsuccessful, negotiable fraternalism, without benefit of any ap,-, parent, but doubtfully helpful, participation on the part of the lost litigant. Then, on June 19, 1969, Cordova’s present counsel of record, filed an appearance, accompanied by a demand for a jury trial based on the grounds that 1) present counsel had not been such before and 2) that because Cor-dova theretofore had had no counsel he could not have made such demand. Reason No. 2 seems to be without merit since Cordova had previous counsel who could have made such demand but did not, and because Cordova could have made such demand but did not.

Counsel for plaintiffs resisted the demand, and upon request supported it with a purported supporting affidavit, which supported nothing but a bit of jargon between plaintiffs’ counsel and Reserve, which latter was neither party litigant nor altruist. Nonetheless, the trial court apparently concluded that the request for a jury five days before trial, without payment or proffer of a jury fee, so far as .the record reflects, was a bit belated, and besides, the record, an exhibit for all to see, including Reserve, the paymaster in this litigation, clearly reflected that the trial date of 24 June, 1969, was published and made a matter of record in the files three months before, on 20 March, 1969. Under the circumstances, without reading between any lines, any suggestion with respect to the relationship of the parties, we think the trial court did not err in refusing the jury request, which, though ordinarily constitutionally protected, has its reasonable limitations.

Cordova’s Point I on appeal, having to do with denial of the jury trial, therefore is held to be unmeritorious. With respect to his Point III, claiming error in allowing the amendment by Mr. C to include damages for personal injuries, seems to be well taken, and we so conclude. This was an entirely different claim, vulnerable to an entirely different defense. It was not permitted to conform to the evidence, which the court in a proper case might or might not permit, but was permitted before any evidence was adduced. Plaintiffs’ counsel say Cordova’s counsel knew all about Mr. C’s injuries, and that Reserve was the real party in interest. If that be the case, so did plaintiffs’ counsel know all about it, so that in all fairness, the complaint should have been amended in writing many weeks or months before. At the trial, to ring in an additional $1,000 for personal injuries atop the $393 damages to the car, by simple interlineation, for which the forgotten litigant might be both primarily and secondarily liable, without benefit of clergy or chance to file any defensive pleading, not only prevents a timely demand for a jury trial on a new claim, but just isn’t fair under the rules or any place else. We are disinclined to reserve such luxury even as against Reserve. Already the rules are about as loose as the national debt, without sanctioning indiscriminate pleading and practice by periphery.

CALLISTER, TUCKETT and EL-LETT, JJ., concur.