This is a pleading case. The trial court held that the statute of limitations had barred the action against the defendant Jay F. Gamsby. The original complaint was filed before the running of the applicable statute of limitations (Code Civ. Proc., § 340, subd. 3—one year). Doe defendants were named under Code of Civil Procedure section 474, which permits unknown defendants to be sued originally under fictitious names with their true names substituted when ascertained. Gamsby was named, substituted and served as a Doe defendant, and two amended complaints were filed, all more than one year after the accident-producing injuries had occurred. The court found the procedure adopted as applied to Gamsby was improper. We disagree. Preceded by basic facts our reasoning, supplemented by additional facts, will be discussed under appropriate headings below.
Under the original complaint filed May 9, 1962, plaintiff, Victor E. Breceda, alleged that on May 23, 1961, while working for Areata Lumber Services, Inc., he suffered injuries when a large stack of lumber fell upon him. He alleged the lumber fell due to the ‘‘dangerous and defective” condition of a forklift. The injuries were serious. It appears in the
On December 18, 1963, plaintiff filed an amended complaint. In it Gamsby was alleged to be the person originally sued as Doe I. It alleged that plaintiff was operating the forklift when he was injured. It was also averred that Gamsby was secretary-treasurer of Areata and was in full charge of the lumber yard and that, “in reckless disregard of the health and safety of plaintiff . . . and with a calculated and conscious willingness to expose plaintiff ... to the risk of injury from falling lumber,” Gamsby had ordered that a guard designed to protect the operator be removed from the forklift. A second amended complaint was filed November 27, 1964. It merely added that Gamsby had also “permitted” the removal of the guard from the forklift. The purpose of the two amendments was to state a cause of action under Labor Code, section 3601, subdivision (a)(3). That subdivision preserves the right of an injured employee to bring an action against a fellow employee when the act of the latter ‘ ‘ evinces a reckless disregard for the safety of the employee injured, and a calculated and conscious willingness to permit injury ... to such employee. ’ ’
Gamsby’s answer pleaded the bar of the statute of limita
The critical question to be determined is the bona lides of the substitution of Gamsby by name for a fictitiously named defendant under Code of Civil Procedure section 474. Several hurdles must be cleared before that question is reached. We approach the first.
When Do Subsequent Amendments “Beeer Back” to the Date oe an Original Complaint and Thus Toll the Statute oe Limitations?
In
Austin
v.
Massachusetts Bonding & Ins. Co.
(1961)
We approach application of the rule just enumerated to the facts of the ease before us with two policies of the law in mind. One must be weighed against the other. Statutes of limitation are statutes of repose. They prevent the assertion of stale claims. Properly applied they are meritorious defenses. They “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” (1 Witkin, Cal. Procedure (1954) Actions, §89, pp. 593-594.) The countervailing policy is alluded to in
Austin
v.
Massachusetts Bonding & Ins. Co., supra,
In the case before us in the original complaint there is an allegation of negligence and injury as the proximate result of
Gamsby, invoking the statute of limitations, unsuccessfully demurred to the amended complaint. On appeal he argues that the amendment alleged a
statutory
cause of action entirely different from the allegations of negligence contained in the original complaint. From this Gamsby contends that the amended complaint showed on its face that it was barred by limitations, that one may not state a statutory cause of action as an amendment to an action for negligence. Regardless of Gamsby’s conclusion his premise fails. Labor Code section 3601, subdivision (a) (3), did not create a statutory cause of action. It preserved an employee’s common law right to recover against a fellow employee for acts evincing a reckless disregard of the plaintiff’s safety.
(Lowman
v.
Stafford
(1964)
We compare the change from negligence to the type of wilful misconduct pleaded in the case before us with the change from defalcations by brokers to an action on the faithful performance bond in
Austin,
with the change from negligence to fraud in
Wennerholm,
and with the change from negligence to wilful misconduct in both
Esrey
v.
Southern Pac. Co.
(1894)
We hold that the recovery sought in both pleadings was on tlie same general set of facts and that the amended pleading related back to the original complaint under the cases cited.
The rule of relation back, as we have discussed it thus far in this opinion, has been considered in its aspect of application to defendants truly named in the original complaint (although the Austin case, like this ease, involved a Doe defendant substitution). We now proceed to the next question.
Gamsby was secretary-treasurer and in full charge of the operations at the lumber yard. That, for some purposes, would classify him as a part of management, not as an employee. But as we have seen (fn. 2 above), under the workmen’s compensation provisions of the Labor Code relating to this type of action he must be regarded as a fellow employee. As such he is not liable in a superior court action for mere negligence which contributes to a work-induced injury. (See Lab. Code, § 3601, subd. (a).) 4 Therefore, Gamsby, who was acting within the scope of his employment, whether sued as a Doe or under his true name, was not liable under the negligence cause of action pleaded in the original complaint. Did this make any difference?
In
Austin
v.
Massachusetts Bonding & Ins. Co., supra,
We hold that the fact that a cause of action legally cognizable was not stated originally against Gamsby was not determinative of the question of the plaintiff’s right to bring him in later, substituted for a Doe defendant. Under the authority of Austin it was the fact that a general statement of facts had been originally set forth under which a legal liability and obligation could have been alleged had it been known that justified the substitution.
Plaintiff was acquainted with Gamsby before the accident. Code of Civil Procedure section 474 states that it applies when “the plaintiff is ignorant of the name of a defendant.’’ That phrase has not been interpreted literally. Even though a plaintiff knows the true name of a person he is still “ignorant of his name” if he lacks knowledge of facts giving him a cause of action against that person.
Garrett
v.
Crown Coach Corp.
(1968)
Respondent cites
Lipman
v.
Rice
(1963)
Was There Substantial Evidence That Plaintiff Was Aware of Gamsby’s Alleged Wilful Misconduct When the Original Complaint Was Piled?
Before the accident (May 23, 1961) plaintiff had known Gambsy. They had gone hunting together. He thought then that Gamsby was Areata’s bookkeeper and office manager. At that time Byron Boyce was the yard superintendent. It was Boyce who had hired plaintiff. On the night of the accident plaintiff, while sitting on the forklift, talked to Gamsby. In their conversation plaintiff referred to the forklift as a “hunk of junk.” The record does not indicate that plaintiff described to Gamsby then why he considered the forklift defective. In his testimony he said the brakes would not hold unless the emergency brake was pulled on; also there was something wrong with the hydraulic system.
The canopy was off on the da.y of the accident and plaintiff had been operating it that way for some time. Plaintiff had used the forklift principally for “cleanup and one thing and another like this. ’ ’
Sometime between the happening of the accident and the taking of Gamsby's deposition in the workmen’s compensation proceeding on September 11, 1961, plaintiff and his attorneys learned that Gamsby was Areata’s chief operational officer, general manager and secretary-treasurer. In giving that deposition Gamsby had testified that “we had to remove
After the deposition, and on the same day that it was taken, plaintiff’s then attorney and the attorney representing Gamsby had a conversation. It related to the possible liability of Gamsby under Labor Code section 3601, subdivision (a)(3). The attorneys realized that the section had been enacted in 1959 and that it had not been judicially construed. The two attorneys were of different opinions as to the degree of culpable intent required to impose liability under that section. Plaintiff’s counsel expressed the thought that plaintiff’s burden in that regard would be more severe than did Gamsby’s attorney. During the course of the conversation plaintiff’s attorney stated neither he nor plaintiff wanted to sue Gamsby. It was stated then and later that they intended to proceed against the Fund only.
In 1964 Gamsby’s deposition was taken in this action. This was long after the amended complaint was filed (on December 18, 1963). At that deposition he testified, referring to the period before the accident: “I asked Mr. Boyce why the canopy wasn’t back on the machine. He said that the men still weren’t satisfied with the canopy as it was fabricated. . . . [W]e discussed . . . that the best way to put a canopy on would be to make it . . . all part of the frame. As I remember, we had some other things, hydraulic problems and so on, and in the meantime I felt that we could use the machine, so I told Mr. Boyce to use it, you know, as a light duty type machine, such as what we brought it over for in the first place. ...” (Italics added.)
A plaintiff may not legally use and rely upon Code of Civil Procedure section 474 in bad faith. Plaintiff’s “ignorance” of the true names of fictitious defendants (as “ignorance” has, as we have shown, been judicially interpreted) must be real and not feigned.
(Lipman
v.
Rice, supra,
The question of whether plaintiff acted in good faith in his use of Code of Civil Procedure section 474 rests primarily with the trial court.
(Day
v.
Western Loan & Bldg. Co.
(1940)
This is a ease of first impression. No reported opinion has defined the nature of “an act . . . which evinces a reckless disregard for the safety of the employee injured, and a calculated and conscious willingness to permit injury ... to such employee.” (Lab. Code, § 3601, subd. (a)(3).) Guidelines exist, however, in previous judicial definitions of the phrase “serious and willful misconduct,” as those words are used in Labor Code section 4553, providing an increased compensation award against an employer (personally or vicariously) for such misconduct.
6
Under section 4553 “ [i]t has been held repeatedly that the employment of workmen under dangerous conditions that can be guarded against constitutes a reckless disregard for their safety.”
(Parkhurst
v.
Industrial Acc. Com.
(1942)
Assuming arguendo
8
that plaintiff’s early knowledge that
Applicability of subdivision (a) (3) demands more than a reckless disregard of plaintiff’s safety. It requires a “calculated and conscious willingness” on Gamsby’s part to permit injury to plaintiff. As stated, such willingness at the very least (see fn. 6) equates with the “willful misconduct” required by section 4553. To show such wilfulness, “[a] ‘reckless disregard’ of the safety of employees is not sufficient in itself unless the evidence shows that the disregard was more culpable than a careless or even a grossly careless omission or act. It must be an
affirmative and knowing disregard
of the consequences.” (Italics added.)
(Hawaiian Pineapple Co.
v.
Industrial Acc. Com.
(1953)
Gamsby makes a two-pronged argument. He argues first that a pleader need not possess, when he pleads, all of the facts necessary to
prove
a cause of action and therefore plaintiff should be held guilty of bad faith for a failure to plead in his first complaint “a calculated and conscious willingness” by Gamsby to injure plaintiff. He then contends that, since
We hold the action was not barred by limitations.
Since the foregoing disposes of the matter and requires reversal, we need not discuss other contentions raised by plaintiff on this appeal.
The judgment is reversed and the cause remanded for further proceedings consistent with the views expressed herein.
Friedman, J., and Regan, J., concurred.
A petition for a rehearing was denied November 27, 1968, and respondent’s petition for a hearing by the Supreme Court was denied December 30,1968.
Notes
In
State Comp. Ins. Fund
v.
Superior Court
(1965)
On appeal Gamsby does not argue an issue raised in the trial court in his motion for judgment on the pleadings that since he was in full and complete charge of Areata’s lumber yard he was an “employer” under Labor Code section 6304 and that workmen’s compensation was plaintiff’s exclusive remedy. Section 6304 defines an employer as including “every person having direction, management, control, or custody of any . . . place of employment. ...” The court correctly denied Gamsby’s motion. Section 6301 expressly restricts the expanded definition of “employer” in section 6304 to its use in part 1 of division V of the Labor Code. Part 1 prescribes special statutory duties. It does not circumscribe the common law remedies that are preserved by the exceptions stated in Labor Code section 3601. In three earlier eases we pointed out that a supervisorial co-employee might thus be a section 6304 “employer” and subject to those statutory standards of care, while at the same time he remained a fellow employee for purposes of common law liability. (See
Mason
v.
Case
(1963)
That was not always the rule. The
Austin
opinion (on pp. 600-602) traces the rule through its permutations. Early cases cited in the opinion (to repeat which would be unnecessarily duplicative) had said that any new cause of action could not relate back, i.e., a plaintiff was not permitted “to change the legal theory of his action.” Cases expounding that rule were decided in the 19th century. The first relaxation of the rule permitted relation back even though the legal theory was changed unless the amendment set forth “ ‘a wholly different cause of action,’ i.e., ‘a wholly different legal liability. . . .’ ” (P. 601.) That was during the period 1936-1941.
Wennerholm
v.
Stanford University School of
Although it is
not
involved in the case at bench, compare Labor Code section 3852 which expressly reserves to injured workmen their common law action for torts committed by persons other than the employer. Under that section an action may be maintained against a fellow employee
who is not acting within the scope of his employment
when the tort is committed. Labor Code section 3601 does not prohibit such an action.
(Saala
v.
McFarland
(1965)
We do not follow dicta to the contrary in
Schroeter
v.
Lowers
(1968)
It should be noted that the portion of Labor Code section 3601 under discussion (subd. (a)(3)) which applies only upon establishing “a reckless disregard for the safety of ’ ’ the injured employee and 1 ‘ a calculated and conscious willingness to permit injury,” etc., is immediately followed by subdivision (b). The latter provides that “An act which will not sustain an independent action for damages against such other employee under subsections . . . (3) of subdivision (a) . . . may nevertheless be the basis of a finding of serious and willful misconduct under Section 4553. ...” That language indicates a legislative intent that “a calculated and conscious willingness to permit injury” be deemed to be conduct at least as blameworthy as ‘ ‘ serious and willful misconduct. ’ ’
We cite Farkhurst v. Industrial Acc. Com. only for this one proposition. In other respects it no longer is authoritative.
We only assume this arguendo. There is no evidence as to the type of work the forklift was being used for at the time of the accident. After the canopy or guard had been removed Gamsby had only given permission (under the record now before us) that it be used “as a light duty type machine, such as what we brought it over for in the first place.” Plaintiff had testified he had used it principally for “cleanup and one thing and another like this.” There is no evidence of plaintiff’s knowledge of a use even permitted by Gamsby which could be classified as recklessness on Gamsby’s part.