Dwan

This is an appeal by plaintiff Lewis J. Dwan, as administrator of the estate of Gerald Joseph Loftus, and as guardian ad litem, for Scott and Bard Loftus, from a judgment of dismissal entered upon the sustaining without leave to amend of the defendants Dixons’ general demurrer to his amended complaint for wrongful death and personal injuries.

The action is grounded on an automobile accident that occurred November 1, 1959. Scott Loftus and his parents were riding in a ear which collided with a car driven by defendant Froberg, with the result that the parents were killed and Scott seriously injured. The original pleading averred that Froberg was driving while drunk and the defendants Dixon were charged by the allegations of paragraph II with liability in that they had “procured the intoxication of William Fro-berg and knowingly permitted him to drive knowing him to be an incompetent, intoxicated driver, ’ ’ and by paragraph III thereof that Froberg was the agent, servant and employee of these defendants and was acting within the scope of his employment at the time of the accident.

On November 20, 1961, 21 months after commencement of the action and two years after the accident,…