Opinion
Page __
__ Cal.App.2d __ 294 P.2d 125 Richard DARNOLD, Plaintiff and Respondent, v. Stanley H. VOGES, Raleigh A. Voges, and Ralph C. Voges, copartners doing business under the fictitious firm name and style of Inglewood Farms (sued as Inglewood Farms, Inc., a California corporation), Inglewood Daily News, a California corporation, Mrs. Pluma Whyte, individually, and doing business under the fictitious firm name and style of Torrance Herald, and Does I to X. Inclusive, Defendants. Stanley H. Voges, Releigh A. Voges, and Ralph C. Voges, copartners doing business under the fictitious firm name and style of Inglewood Farms (sued as Inglewood Farms, Inc., a California corporation), Appellants. Civ. 21108. California Court of Appeals, Second District, Second Division Feb. 29, 1956Rehearing Granted March 22, 1956.
[294 P.2d 128] Gibson, Dunn & Crutcher, by Norman S. Sterry, and Sherman Welpton, Jr., Los Angeles, for appellants.
Robertson, Harney, Drummond & Dorsey, by David M. Harney, and Vernon W. Hunt, J., Los Angeles, for respondent.
MOORE, Presiding Justice.
Defendants demand the reversal of a judgment for damages allegedly resulting from personal injuries suffered when a cow kicked and fell upon plaintiff. They contend (1) the judgment is without evidentiary support; (2) prejudicial errors were made in rulings upon the admissibility of certain evidence; (3) certain instructions were prejudicial.
The Voges Brothers, appellants, operated a dairy farm under the name of Inglewood Farms, Inc., near Torrance, where they processed milk purchased from divers milk producers. The elaborate processing plant included a barn which appellants had leased to John Bos. He owned a herd of some 300 milch cows which he caused to be [294 P.2d 129] milked in the barn. Prior to the tragic occurrence of October 31, 1952, Bos had employed respondent as a milker, and on that day the latter was engaged in performing his customary task of milking Bos' cows by using a mechanical device. Thus he was a business invitee on the premises of appellants who shared the occupancy of the barn with their lessee. As he sat on a stool nine inches high, reaching under cow number 3 to attach a milking machine to her, a flashlight bulb flashed nearby, whereupon cow number 2 whose head was in a stanchion pulled back violently and in a moment had crushed respondent to the floor. On crawling out, respondent called to photographer Svensk to inquire who gave him permission to enter the barn and take pictures. The reply was that the foreman of appellants had done so. Respondent suffered serious injuries for which the jury returned a verdict for $72,813.90. The motion for a new trial was denied on condition that the sum of $25,000 be remitted from the verdict.
Appellants' plant was open to the public which was always welcome. In order to excite wider interest in their business, they contracted with the Torrance Herald to advertise their business. The Herald in turn engaged one Hartford to procure an advertisement from appellants. Having been promised a contract, Hartford arranged for Mr. Svensk, a photographer of the Herald to accompany him to Inglewood Farms. There he met Stanley Voges who introduced him to Mr. Barnard, superintendent of the plant for appellants. Hartford conferred with Stanley Voges and advised him that they desired to take photographs of 'anything of interest.'
Having taken a number of pictures of the Farms, Svensk said they would be pleased to get photographs of the actual milking. Barnard replied that permission to do so would be obtained from Bos, since he was lessee of the barn and in control. Appellants now say that 'the record was conclusive that it was under Bos' complete control.' Barnard escorted Svensk and Hartford to the barn where someone said something to somebody and Barnard told the photographer he now had permission to take pictures of the actual milking. After Barnard left the scene, Svensk took two flashlight pictures of cows being milked. At that time the bovines stood so that their bodies were 2 1/2 feet apart with their necks in stanchions. It was at the time of such photography that respondent was injured by cow number 2.
Did Defendants Control The Barn?
In behalf of their contention that the evidence is not sufficient to support the judgment, appellants assert that they had no management of the barn; that they had leased it to Bos and he was in complete control. It is true he held the barn under a lease, but he had an agreement with appellants that they might bring visitors through the barn. This, appellants frequently did. They built a special platform alongside the barn on which their visitors stood while witnessing the milking machines at work. The passageway from which Svensk took his pictures was a common passageway that was used by appellants, Bos, and the milkers. From the foregoing, it is seen that the jury had sufficient evidence to support their implied finding that appellants exercised a free hand in maintaining dominion over the barn, equally with their lessee. Certainly was that true in so far as appellants' having a photographer enter the barn and photograph the cows in the course of the milking. Not only did they exercise that privilege, but in the case of Hartford and Svensk, Bos made it emphatic that neither he nor his agent had ever consented to anyone's taking flash pictures in that area.
Mr. Barnard likewise testified that neither himself nor anyone in appellants' office was authorized to permit pictures to be taken in the barn. But the jury were justified in rejecting Barnard's testimony for the reason that Hartford and Svensk had come to the plant for the purpose of taking pictures to be used for the benefit of appellants' business. They were to be published in the Torrance Herald. The contention that they were there on their own business and not for the benefit of Inglewood Farms is to disregard the implied finding that they were there with appellants' permission take the photographs, if, indeed they were [294 P.2d 130] not present on the invitation of appellants. The advertisement was not to benefit Bos or his herd. Moreover, when Hartford and Svensk arrived at Inglewood Farms, they were greeted by Stanley Voges who left them with Barnard, the Farms' foreman. The latter 'paved our way for all pictures' testified Hartford, and accompanied the two men as they photographed a number of scenes. Having been placed in Barnard's charge, they asked him and he told them what pictures might be taken. After cows 2 and 3 had been taken, to the sorrow of respondent, he inquired of Svensk who gave 'him permission to take a picture in there.' The only reply was: 'The foreman, the foreman.' Since Svensk had met only Stanley Voges and Barnard and since the milkers had no foreman, it must be conceded that the jury were correct in finding that Barnard, foreman of Inglewood Farms, gave Svensk permission to photograph cows 2 and 3 and that he was authorized by appellants to do so.
But appellants go off on a tangent when they direct so much attention to the matter of appellants' not having consented to the activities of Hartford and Svensk. In doing any act that might disturb a herd or a single bovine, the person to be consulted is he who is close at hand and likely to be affected. Because a man is engaged in the performance of a menial task is not a valid excuse for ignoring him when danger lurks in the offing. He is still an individual whose personality demands respect and protection against potential dangers. In so far as his rights to be protected against latent perils are involved every man is a king. But Darnold was ignored by Svensk and by Barnard. While the latter disclaimed having authority to permit pictures to be taken of the cows, and Bos denied having been requested to allow them to be photographed, the glaring facts remain that respondent heard nothing prior to the flash, Barnard was in charge of the photographers in the plant for the occasion and Svensk answered respondent that permission had been given by 'the foreman.' It is true that Barnard testified he had called out requesting the milkers to cooperate; that he knew all four milkers, but had heard no response and never identified a milker as having consented; but Mr. Hartford testified that he heard no statement of Barnard that it was necessary to get the permission of the milkers; nor did Barnard make request of anyone in the barn to do so. The evidence is sufficient to justify a finding that appellants did not have the consent of respondent to explode a flash bulb before the cows where he was in pursuit of his duties, nor did they or the photographer warn respondent.
It is fundamental that all persons are required to use ordinary care to avoid injuring others. Such care is that of an ordinarily prudent person reasonably required under the circumstances of a given case. The amount of such care must be according to the danger that might reasonably be anticipated. Hilyar v. Union Ice Company, 45 Cal.2d 30, 286 P.2d 21. Everyone is bound without contract to abstain from injuring the person of another or of infringing upon his rights. Civ.Code, § 1708.
Appellants did not exercise the care expected of a reasonably prudent man under the circumstances, to avoid creating a foreseeable risk of harm to respondent. They must have known that to send a photographer into the cow barn at feeding time to explode a flash bulb would excite the cows or some of them, cause them to pull and jerk their stanchions, to kick, push or fall against any object near. They knew four milkers were at work among the 60 cows; that one or all of them might be under a 1200-pound animal and that a sudden fright might result in the trampling of the milker. They knew, also, there was no urgent necessity of either a public or private nature requiring such speed in the photographing of the cows as would not allow a moment's delay to call the milkers out. Because appellant's controlled the matter of permitting strangers to enter the barn and because the photographers were their guests, they owed it to respondent to exercise reasonable care to see that neither respondent nor any other milker should incur the risk of injury. Inasmuch as whether reasonable care was exercised [294 P.2d 131] and whether the amount of such care required by the situation was exercised were factual issues fairly determined by the jury that determination cannot be upset by an appellate court. In re Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689. That finding is supported in reason: Knowing there was, at least, doubt about the propriety and safety of their project, appellants could readily have called to respondent to gain his cooperation. Not so with appellants. They 'paved the way' for Hartford and Svensk who naturally concluded that arrangements had been made by the 'head man.' Their only admonition to the photographers was 'not to scare the cows,' knowing at that very moment that Svensk was armed with a device that would cause more terror to the bovines than would a battering ram against the barn. Appellants made no attempt to ascertain whether the milkers had notice of the pending explosion of the flash bulb. Having no reason to anticipate the event, respondent had no opportunity to avoid it.
Not only did appellants owe a general duty to respondent, but, also, they were obliged to know that as an employee of Bos, he was an invitee of appellants. The owners of a building who directly or impliedly invite others to enter it, must have their premises in a reasonably safe condition and must warn those who enter lawfully of concealed perils. Mautino v. Sutter Hospital Association, 211 Cal. 556, 560, 296 P. 76; Foster v. A. P. Jacobs & Associates, 85 Cal.App.2d 746, 750, 759, 193 P.2d 971; Davis v. Pacific Power Co., 107 Cal. 563, 574, 40 P. 950. By virtue of the fact that appellants conducted the photographers into the barn and onto the passageway to take the pictures, respondent was their business invitee. They made no attempt to warn him of his danger. By reason of the premises, appellants breached their duty to respondent as a proximate result of which respondent sustained injuries to his damage. Since both court and jury determined that appellants failed to act as reasonably prudent persons, they have no escape from the judgment on the basis of not having breached their duty to respondent. One who can foresee harm from his failure to exercise reasonable care must pay for the consequences of his negligence. Richardson v. Ham, 44 Cal.2d 772, 776, 285 P.2d 269.
Furthermore, the duty of appellants to control the movements of Svensk is clearly established. He was their employee, or appointee or special guest. He gave no indication that he was there in any other capacity while the fact that appellants sent him into the barn to take the pictures was clearly established. They had control over him at all times. The right to do so is the very essence of employment. Villanazul v. City of Los Angeles, 37 Cal.2d 718, 721, 235 P.2d 16. Where such employment is oral the jury's finding as to the relationship is final. Robinson v. George, 16 Cal.2d 238, 242, 105 P.2d 914. If Svensk and Hartford were employees of appellants, under the doctrine of respondeat superior, appellants were responsible for their acts. If they were not employees, they were under the control of, and did as they were told by, appellants. If they had the opportunity to control and did not do so, their failure was negligence. Edwards v. Hollywood Canteen, 27 Cal.2d 802, 810, 167 P.2d 729; Rest. Torts, secs. 317, 318, 449, 414.
The notion that the photographer was an 'independent contractor' cannot avail. He was in the barn at the instance of appellants and did as he was told by them. That he did not call respondent from his place beside the cow was witnessed by appellants who according to their own testimony asked respondent's permission to take the pictures, but which the jury found to be false.
Appellants' Breach of Duty
Appellants contend lustily that they breached no duty to Bos or his employees in entering the barn. Such a breach is not at issue. Respondent raised no such question. It is immaterial whether Bos gave permission. He was not a milker and could not have suffered detriment by the movements of his cows. The breach that caused the damage was the breach of duty due respondent and his fellow milkers. The jury found no permission had been given [294 P.2d 132] by respondent to explode bulbs and make flashlights in the face of the cow that injured him. It is contended that Svensk was a licensee and could not be liable for doing the act he was licensed to do so long as he was free from negligence, citing Defense Supplies Corporation v. Lawrence Warehouse Co., D.C., 67 F.Supp. 16, 20. But that decision is not pertinent. It involves an act of a licensee that was not negligent. The duty in the instant matter was the duty appellants owed respondent. He was the individual in a place of danger. They should have warned him of their intention and to leave his position under the cow. He was a business invitee of appellants as well as of Bos and as such was entitled to be protected against dangers while in the barn arising from active negligence. Biondini v. Amship Corp., 81 Cal.App.2d 751, 760, 185 P.2d 94; Dobbie v. Pacific Gas & Electric Co., 95 Cal.App. 781, 786, 273 P. 630; also see Foster v. A. P. Jacobs & Associates, supra. An employee of a tenant is a business visitor of the lessor in respect to those areas subject to the lessor's control. Foster v. A. P. Jacobs & Associates, 85 Cal.App.2d 746, 193 P.2d 971.
Anticipate a Cow's Emotional Upset?
Appellants appear amazed at the implied finding that it was reasonable to anticipate a distressful reaction by a cow in the event of a sudden flashlight in her face or that it is reasonable to foresee that the cow would probably be frightened by an unexpected flash in the homey environment of a cowbarn. Whether it was reasonable to anticipate such a reaction, whether in the exercise of ordinary care, appellants should have known that a cow on the explosion of a flash bulb in her face would have reacted violently to the phenomenon is not a question of law, but one of fact to be determined by the jury who had to consider all the circumstances of the event. Who knows what the behavior of a brute will be? Some are placid and not disturbed when a red rag is waved before their eyes, some are the opposite. Some might not be resentful if brought by degrees to an acquaintance with a flash bulb while others are excitable or resentful when a light is suddenly flashed. A person who approaches a cow at feed time for the purpose of exploding a bomb or of discharging a gun cannot be excused for his negligence merely because he did not know for a certainty that the bovine would resist the sudden light and noise. As men of experience in dealing with livestock, appellants knew or should have known that the cows might be startled and might attempt to escape from their stanchions. A single, simple rule for all situations cannot be declared with safety. A jury knows that there are many animals that shudder, shy, run or fight when startled. They know that out of a herd of 60 cows, some of them might react violently when frightened and that only ordinary prudence would suggest the exercise of caution where the safety of a human being is at stake.
The milch cows of Mr. Bos were large animals weighing about 1200 pounds. Each had her head fastened in a stanchion. She could move it vertically about three feet. Her body was about 2 1/2 feet from her neighbor on each side, providing space for the milker to enter with the machine. Appellants and their foreman knew that each cow could not only pull back, kick, move from left to right, but could lie down. In that space she had room to move her body with force and rise high enough to throw it against and upon a person. Respondent with twenty years experience with milch cows testified that a flashlight in the immediate presence of a cow would excite her. He had witnessed such an event in the barn of appellants only two months previously. Also, Barnard knew cows were subject to fright from sudden movements and warned the photographers not to 'scare' the cows. So profound was the conviction of Bos that strangers would disturb his herd, he allowed them to enter upon condition that they not scare his cows. Moreover, Stanley Voges testified that cows are 'touchy'; that 'violent or sudden noise will cause a panic among cows; that cows are so subject to fright from the unexpected that on may even kick her own milker when he comes up unexpectedly; that he had seen cows go down on [294 P.2d 133] their knees at a sudden, unexpected flash of light. Witness Lindsay testified a scared cow may kick, go down on her kness and roll on the milker. Cletus Howard, a milker, had seen cows jump in the barn with both rear feet off the ground.
From the foregoing testimony and from their general knowledge of cows, the jury were justified in finding that on and prior to October 31, 1952, appellants knew of the probability that the cows of Bos might resent the sudden flash of a photographic bulb; that they would become frightened thereby and attempt to free themselves from their stanchions; might kick, fall or move violently against one another or against a milker. That appellants must have had such knowledge is proved by their declarations of having undertaken to obtain permission to take the pictures. Barnard, appellants' foreman, warned Svensk just prior to the flashing of cow number 2 not to scare the animals. Of course, if appellants could anticipate that the cows would violently react to a sudden light, they knew it was probable that someone would be injured by a 1200-pound cow's kicking or falling upon a milker while attempting to attach a milking machine. Such event was not only probable but it did happen to respondent. Appellants' thrusts at the latter's testimony that the cow jumped or reared and fell upon his back miss their mark. With the huge bovine's head in a stanchion and her resisting the fright the flash caused her, she had not far to go to fall upon respondent and to trample him with her cloven feet. He testified that he could not say definitely what she did; all he knew was that 'she reared and jumped and got on my back.' The cow had the advantage by being at his back. While his tongue was unschooled in the art of fine rhetoric, his words were understood by all. Her body was free from her head to her hind feet. She had sufficient freedom of movement to pull back, to rear, to slip, to fall upon respondent, to mash him and to cause his injuries.
But appellants contend that by reason of the reputation of the cows of Mr. Bos for kindly conduct, they had the right to assume that no violent reaction of any of them would occur after the flashing of a photographic bulb and therefore no one could have been negligent in the photographing of the cows in the barn. They cite as precedents: O'Brien v. Gateway Stables, 104 Cal.App.2d 317, 231 P.2d 524; Finney v. Curtis, 78 Cal. 498, 501, 21 P. 120; Clowdis v. Fresno Flume & Irrigation Co., 118 Cal. 315, 50 P. 373; Schnell v. Howitt, 158 Or. 586, 76 P.2d 1130, 1131; Barnett v. Pulda, 116 N.J.L. 141, 182 A. 879. They declare that 'the O'Brien case is so factually indistinguishable from the instant case' etc. that upon the strength of it and their cited decisions, the action at bar should be reversed.
Let us see: The father of appellant in the O'Brien case had for many years maintained a boarding stable and kept two riding horses for rent. One was a mare, by name Roxan, a spirited animal but gentle and quiet; she had never reared up, run sideways or pitched, and had no bad habits. Appellant invited the plaintiff for a horseback ride before dinner at his parents' home. In the ride, Roxan cantered, galloped, and for no apparent cause turned right and left and threw the plaintiff to the ground. She sued, charging negligence in allowing her to ride the 'blooded and spirited mare.' Because the trial court had found that Roxan was not vicious, but was a normal, gentle riding animal, and that appellant did not have any reason to believe that she was dangerous or of refractory propensities, and had found that appellant was not negligent in permitting Miss O'Brien to ride her, we concluded that an award of damages was unjust, and reversed the judgment. The difference between the mare and cow number 2 lies in the fact that Roxan was an intelligent animal of a species whose members are readily habituated to the ways of man. They love their human companions and happily bear their burdens. Roxan had worked at her trade for many years, had never been known to be vicious, wild or intemperate, but had gained a reputation at Gateway Stables for being docile, kind, and amenable. Because she had not been known in six years of riding to run away or pitch, kick, bite or indulge in any equine vices, appellant had no reason to anticipate that she would run [294 P.2d 134] away and throw the young lady to the ground. We have in the instant action no such animal. While Roxan was a highly intelligent quadruped, cow number 2 was merely a dumb brute. Her dinner had not been daily attended by a flashlight exploded by a stranger, hence she could not have gained a reputation for silence and inaction in the presence of those phenomena. Since she had not become inured to their effect, no one could have been certain that she would calmly stand in their presence. Appellants knew too much not to suspect her resistance to a combined flash and explosion. While Miss O'Brien's saddle mare had repeated daily her kindness, patience and gentleness as a beast of burden over a long time, cow number 2 had presumably done nothing but march back and forth to and from the barn with no knowledge gained of her except the amounts of her daily consumption and her gift of milk and calves. No regular tests of her reactions to a flash bulb had evidently been made. She had no good reputation for any like or dislike for a flashlight in her face.
Unless an animal has established a reputation for phlegmatic behavior in the sudden appearance of an unusual spectacle, its unpredictability is assumed by reasonably prudent men. A quiet gentle horse had a searchlight thrown upon him. He ran away and caused damage to the plaintiff. Contrary to the defense of nonforeseeability, the defendant was held to have been negligent. Maiss v. Metropolitan Amusement Association, 241 Ill. 177, 89 N.E. 268, 269. Where a team of mules became unduly excited by the driver causing the passenger to fall off and be killed, it was held that the accident was due to the negligence of defendant's driver. Dover v. Mayes Mfg. Co., 157 N.C. 324, 72 S.E. 1067, 1070, 46 L.R.A.,N.S., 199. See where a whistle frightened a horse, City of Winona v. Botzet, 8 Cir., 169 F. 321, 23 L.R.A., N.S., 204; a horse was suddenly slapped on the back, Casey v. Sawyer Biscuit Co., 163 Ill.App. 145; a canvas flapped, Buchanan v. Hurd Creamery Co., 215 Iowa 415, 46 N.W. 41, 45. In the Buchanan case the court observed that some animals react one way, while others react a contrary way; that therefore a person is not warranted in assuming that his own animal will not be frightened. But it is the law that the question as to whether a certain phenomenon should have tended to frighten an animal is for the jury. Tanner v. Culpeper Construction Co., 117 Va. 154, 82 S.E. 1052, 1055; Crouter v. City of New York, 130 A.D. 873, 114 N.Y.S. 353. Also, whether an event was foreseeable and whether it was the proximate cause of the injury are factual issues. Jones v. City of South San Francisco, 96 Cal.App.2d 427, 435, 216 P.2d 25. In the instant controversy, the jury determined such issues against appellants.
The authorities cited by appellants on the issue of foreseeability are not in point. Finney v. Curtis, supra, an action for damages, is of little value. Curtis, not knowing his horse to be vicious, by alleged false statement induced plaintiff to assist in hitching the animal to a wagon, whereby Finney was injured. It was not proved that the horse had ever shown an evil disposition. That he was young and unbroken was known to both parties. Neither was negligent. The horse might have gained a reputation after a period of daily use, but had not enjoyed that experience.
Clowdis v. Fresno Flume & Irrigation Co., supra, involved a bull, known to be vicious, property of defendant who had caused it to be driven onto the highway. There it tossed Clowdis in the air and he recovered for his injuries. The case merely demonstrates the converse of the rule as to an animal of good reputation.
The Injuries
For the injuries suffered by respondent, the jury assessed his damages at $72,813.90. That they were serious there is no doubt. Three physicians, each a specialist in his field, assisted the jury in finding the extent of respondent's pain and anguish. It was proved that he had suffered from a herniation of the fourth lumbar intervertibral disc. That was determined in February 1953. The disc was then herniated in the midline with the left fifth lumber nerve root arched over the herniation. The disc was removed to effect a spinal fusion. The resulting rupture pressed on the left side of [294 P.2d 135] the fifth lumbar nerve root, causing pain to radiate down the outer aspect of the left leg. Dr. Cuneo, the surgeon, testified that prior to the operation, respondent was totally disabled and that the disability was caused by the cow's falling on respondent's back. Prior to his injury, he had been doing hard work but subsequent to the accident, he was totally disabled. The testimony of the surgeons established that the injuries were caused by the cow and that respondent was totally disabled until October 1954; that the atrophy of the leg resulted from the new nerve root pressure and could not have been present since 1948; that respondent will have a permanent limitation of motion in his back and will suffer pain for an indefinite record. Contrary to appellants' contention, respondent's work ceased on the day of the accident. It is true that he returned about three weeks thereafter to attempt to work, but his pain forced him to leave at once. The claim that respondent's old injury seriously impaired his ability to contrary to the proof that prior to the accident, and after his remote injury, he had done heavy, manual labor in felling timbers and in carrying a 150-pound saw; stacked timber and operated a lumber truck. After coming to this state he worked as a milker until October 31, 1952. That history evidently and justly convinced the jury that no vestige of the man's earlier accident remained while the testimony of the surgeons that an operation removing the ruptured disc and the fusing of the third, fourth and fifth lumbar vertebrae to the sacrum have resulted in permanent limitation of motion in his back with continuous pain can lead to but one conclusion, to wit, it was all the fruitage of the accident proximately caused by appellants' negligence.
The reduction of the verdict by the court on the hearing of the motion for a new trial in no respect diminishes the appraisal by the jury as implied by their findings. The judge, in the main, agreed with the jury, but pursuant to his concept of his judicial responsibility, he performed a duty in reducing the verdict on being convinced that it was excessive.
Other Assignments of Error
Appellants have gleaned the record for errors at the trial. We discuss them now.
While Mr. Svensk was testifying, he was asked by respondent concerning a quarter-page advertisement of appellants' Inglewood Farms in the Torrance Herald. Over objection, the court admitted a copy of the Herald containing such advertisement. The vice charged to the document is that it is irrelevant, proves nothing about the alleged negligence, and was prejudicial in that 'the jury must have assumed that the evidence had some tendency to show that the photographers were the agents' for defendants, or that because defendants paid large sums to the Herald which printed a picture of an operation of appellants, the latter thereby became liable for Svensk's manner of taking the picture. No prejudice resulted from such ruling. The advertisement was merely cumulative. The agreement was between the Herald and appellants that by the latter's payment for the advertisement, they would receive editorial mention.
Assignment is made of the court's excluding Mr. Hartford's testimony 'that he would have remembered any unusual action of a cow such as described in plaintiff's testimony and would have remembered if anyone had yelled, 'Who the hell let you fellows in here?'' The objection was properly sustained because it called for a conclusion. The fact that an event occurred at a remote time in the past does not make the rules of evidence inapplicable.
Appellants complain of error in the exclusion of Mr. Voges' testimony that cow number 2 had been sent to the butcher 'in the ordinary and regular course of events.' The ruling was correct. It was immaterial whether the cow was sent to the butcher. Also, it was not proved that Voges was the owner of the cow.
Appellants assign as prejudicial the court's exclusion of Stanley Voges' testimony as to the number of flashlight pictures taken in 1946 without adverse reaction of the cows. Such an inquiry involved an incident too remote to be relevant. The [294 P.2d 136] court did not exceed the latitude of its discretion by excluding evidence of so remote an event. Even though the ruling had been erroneous, no prejudice could have resulted since the same witness had already testified that he had never seen any sudden reaction of a cow as the 'result of any prior pictures taken.'
Assignment is made of the court's action in striking the testimony of Stanley Voges. After he had testified that at that time he was not too active in the barn and did not know of the animals that had any vicious propensities, he testified that prior to Darnold's claim that a cow reared and bucked, then jumped on him, he knew that it was a common occurrence in the barn for a cow to kick but he had never heard of any cow's having bucked and jumped and that if any of that type were being used, 'they wouldn't be retained if they were.' The court properly struck the italicized sentence. The witness had already given his evidentiary testimony. What would happen if a cow should buck or jump was a conclusion and opinion and was not competent proof; neither was it responsive to any question.
Appellants assert error in the court's action in striking testimony of witness Howard, a milker. He was asked if he recalled a discussion among people who came 'in regard to the taking of pictures.' He remembered once 'they said something about taking moving pictures, but I never paid much mind to it. You know, in every barn they do it * * * Practically all of them I worked at.' The motion to strike the italicized portions was properly sustained. It was a nonresponsive and irrelevant answer and no foundation had been laid for it.
Appellants assign as error the giving of BAJI'S instruction 54-A in that it 'charged the jury that Barnard had been guilty of omissions.' The only assumption included is that Barnard was superintendent of Inglewood Farms. No act or omission of Barnard except his failure to call out to the milkers prior to the flash was charged as necessarily negligent. The idea expressed is that the acts or omissions of an agent are, in law, the acts or omissions of the principal. It is uncontradicted that Barnard was superintendent of appellants' plant. In the case cited by appellants, Finney v. Curtis, 78 Cal. 498, 21 P. 120, the erroneous instruction assumed negligence.
There is no error in instruction 104-B. The rule is that where a general instruction is correct as far as it goes, the complaining party can get no relief unless at the proper time he requested the court to make the charge more specific or unless appropriate qualifying instructions are denied. Shook v. Beals, 96 Cal.App.2d 963, 972, 217 P.2d 56, 18 A.L.R.2d 919. The instruction is not argumentative and does not invade the province of the jury, as was held in McKeon v. Lissner, 193 Cal. 297, 305, 223 P. 965.
104-B: 'When the negligent acts or omissions of two or more persons, whether committed independently or in the course of jointly directed conduct, contribute concurrently, and as proximate causes, to the injury of another, each of such persons is liable in the absence of contributory negligence. This is true regardless of the relative degree of the contribution. It is no defense for one of such persons that some other person, not here as a defendant in the action, participated in causing the injury even if it should appear to you that the negligence of that other person was greater in either its wrongful nature or its effect.'
Book of Approved Jury Instructions, Los Angeles Superior Court.
Appellants criticize as prejudicial instructions 'X' and 213-C. They [294 P.2d 137] assert that both announce 'one absolutely erroneous rule of law,' to wit, that the plaintiff was an invitee of the defendants and that 213-C is erroneous in charging that it was defendants' duty (1) to keep the premises in a reasonably safe condition; (2) assumed as a fact that there was a dangerous condition; (3) that it was defendants' duty to warn plaintiff of that danger.
'X': 'Foster v. A. P. Jacobs & Assoc., 85 C[al.] A[pp.]2d 746 [193 P.2d 971]. Plaintiff, as an employee of John Bos, was a business invitee of Stanley H. Voges, Raleigh A. Voges and Ralph C. Voges, doing business as Inglewood Farms, and these defendants owed to plaintiff the duty owed to a business invitee, as will be more fully explained in the following instructions.'
Both are quoted in the majority opinion.
No prejudice was suffered as a result of these instructions. It was clearly established that appellants were exercising control over the area where the photographer stood at the time of the flash. They could not maintain that they themselves were either trespassers or guests. Under the law, the court was compelled to instruct that respondent was a business invitee of appellants. When an invitee A of an invitee B is injured by reason of the negligence of the owner of premises, such negligence is the cause of invitee A's injuries. Royal Insurance Co. v. Mazzei, 50 Cal.App.2d 549, 552, 123 P.2d 586; Mautino v. Sutter Hospital Association, 211 Cal. 556, 560, 296 P. 76; Foster v. A. P. Jacobs & Associates, 85 Cal.App.2d 746, 751, 193 P.2d 971. Inasmuch as respondent was the employee of Bos, the tenant of appellants, the doctrine announced in the last cited decisions must be applicable. Although a landlord is generally held not responsible for the negligence of his tenant in the event a third party suffers injury on the tenant's premises, an exception to such rule operates when the injury is caused on that part of the premises controlled at the time by the landlord. Pfingst v. Mayer, 93 Cal.App.2d 265, 272, 208 P.2d 1002.
In concluding this phase of the discussion, it might with propriety be observed that where the instructions as a whole substantially and correctly cover the law applicable to the controversy, the judgment will not be reversed notwithstanding some technical but harmless errors found in the court's charge.
The judgment is affirmed.
FOX, J., concurs.
ASHBURN, Justice.
I concur in the judgment but cannot endorse some of the propositions stated in the majority opinion for they tend to inject uncertainty into areas of the law where the rules are now well defined.
The unqualified statement that a tenant's employee is an invitee of the landlord is not supported by the authorities. So far as the condition of the premises is concerned, the duty owed to the employee of a lessee who has exclusive possession is the same as that owed the lessee himself, and is substantially different from that owing to an invitee. Cf. Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 610, 195 P.2d 501; Pfingst v. Mayer, 93 Cal.App.2d 265, 272, 208 P.2d 1002; Bickham v. Southern Cal. Edison Co., 120 Cal.App.2d 815, 819, 263 P.2d 32; Prosser on Torts (2d Ed.) § 80, pp. 465-467; 15 Cal.Jur. § 153, p. 741. The more restricted view that the tenant's employee is an invitee of the landlord when upon premises or portions of premises over which the landlord and tenant have joint control is recognized as correct (authorities supra), but it is not applicable to the case at bar. There was no such joint control of the Bos cow barn, and no evidence sufficient to raise that inference.
Plaintiff alleged the fact of a lease from [294 P.2d 138] defendant partnership to Bos; and Bos, as plaintiff's witness, testified to the fact, as did defendant Stanley Voges. Bos also said that he was in exclusive control of the barn which had been leased to him. Mr. Barnard, sometimes referred to as defendants' foreman, testified to the fact of the lease and lack of authority in the lessors to permit the taking of pictures in the barn; he told Svensk, the photographer, that he would have to get permission. Mr. Barnard was authorized by Bos to take school children and other visitors through the barn upon condition that they not scare the cows. The subject of taking flashlight pictures was never mentioned between him and Bos. Plaintiff's assertion that there was within the barn a common passageway for joint use of Bos and defendants does not find support in the evidence, nor does the claim that defendants had built an observation platform within the leased area; they had done so outside the barn and on property not leased to Bos. Barnard's status when within the leased area, the barn, was that of a licensee, 65 C.J.S., Negligence, § 32 p. 481, which term excludes any idea of control or joint control on his part.
Appellants make a powerful argument to the effect that the accident described by plaintiff did not occur because it could not happen. However, the testimony of plaintiff, of Stanley Voges and Virgil Lindsey, Jr., contains passages which, added to the jurors' combined experience with the common facts of life, Cederberg v. Robison, 100 Cal. 93, 96-97, 34 P. 625; Miller v. City of Arcadia, 121 Cal.App. 660, 662, 9 P.2d 587; People v. Miller, 41 Cal.App.2d 252, 258, 106 P.2d 239; Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 55 P.2d 870, rule out appellants' claim that the evidence was inherently improbable. To meet that test 'there must exist either a physical impossibility that they [facts stated by witness] are true, or their falsity must be apparent without resorting to inferences or deductions.' People v. Huston, 21 Cal.2d 690, 693, 134 P.2d 758, 759. The same case says: 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. Hicks v. Ocean Shore Railroad, Inc., 18 Cal.2d 773, 781, 117 P.2d 850.' 21 Cal.2d at page 693, 134 P.2d at page 759. The instant record presents a question of fact which the jorors and trial judge resolved in plaintiff's favor. We must accept as established his version of the accident and resultant injuries.
Appellants complain of error in instructing the jury that plaintiff, as an employee of Bos, was an invitee of defendants, and following it with BAJI 1 213 C concerning the duty of invitor to invitee. 2 These instructions were erroneous. The first one invaded the province of the jury. It assumed and impliedly asserted that defendants and Bos had joint control of the barn, which at best was a fact question for the jurors. Instruction 213 C proceeds upon the faulty basis laid by the preceding one and defines rights and duties of the parties upon that erroneous premise. But certain other considerations must be examined in order to determine whether the error is so prejudicial as to require a reversal.
The evidence establishes that Barnard took photographers to the Bos barn; that he had no authority to permit them to take flashlight pictures inside; that Bos was away at the time; that no one had been delegated the authority to act for him in his absence; that there were four milkers in the barn when Barnard and the photographers arrived; that Barnard made no effort to learn where they were at the time. The evidence warrants the inference, contrary to his testimony, that Barnard did not seek or obtain consent of any of the milkers to the taking of flashlight or any other pictures. Plaintiff heard no such request and gave no consent; and there was no one there acting for him. Svensk said that Barnard asked someone in the barn [294 P.2d 139] whether he could take pictures, etc., but he heard no response; Barnard himself was vague about the kind of response or responses he received. Although Barnard did not have the right to authorize the taking of flashlight pictures in the barn and got no consent thereto (as the jury impliedly found) he did tell Svensk he could go ahead. He, Barnard, was thus in the position of one who voluntarily undertakes to perform an act pregnant with danger to others. He must exercise reasonable care, Perry v. D. J. & T. Sullivan, Inc., 219 Cal. 384, 290, 26 P.2d 485; Prosser on Torts (2d Ed.) pp. 186, 476; 65 C.J.S., Negligence, § 4(b), p. 343; and that includes reasonable foresight as to harmful consequences of his acts. Mosley v. Arden Farms Co., 26 Cal.2d 213, 216-217, 157 P.2d 372, 158 A.L.R. 872; Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 234, 282 P.2d 69; Signorelli v. Potter, 43 Cal.2d 541, 544-545, 275 P.2d 449; De Mirjian v. Ideal Heating Co., 129 Cal.App.2d 758, 772-773, 278 P.2d 114. It is apparent that the question of whether Barnard did or did not have authority to tell Svensk to proceed with the flashlights becomes immaterial, as does the question of whether Svensk was technically an agent of defendants. When Barnard undertook to act he was required to act prudently, to exercise that degree of foresight which a reasonably prudent man would display in the same circumstances. The question of foreseeability of harm is ordinarily one of fact, Mosley v. Arden Farms Co., supra, 26 Cal.2d 213, 157 P.2d 372, and that was true in this instance. The question of what cows do or do not do in given circumstances is one for the jury, not the reviewing court (authorities supra).
That question of foreseeability of the conduct of milch cows proved to be the crucial issue in this case, but it was not made clear to the jurors. BAJI 213 C was the closest approach. Defendants did not request any instruction on the subject and do not complain of failure to give one. They do assert error in giving 213 C, however. It should not have been given, but it was not actually prejudicial. Upon the assumption that plaintiff was an invitee of defendants it defined their cuties as invitors toward him. The words 'invitor' and 'invitee' were not defined for the jurors, but they were told that plaintiff was defendants' invitee and as such entitled to protection against active negligence on defendants' part. References in the instruction to safe condition of the premises probably meant to the jurors, struggling to understand and apply it to the facts at bar, nothing more than legal mumbo jumbo. But, as stated, the instruction says that defendants (through Barnard) owed plaintiff a duty to refrain from active negligence and that 'if such danger arises from conditions not readily apparent to the senses, and if the owner has actual knowledge of them, or if they are discoverable by him in the exercise of ordinary care, it is his duty to give reasonable warning of such danger to the invitee.' As applied to the facts in hand, this was another way of saying that defendants must foresee and guard against danger to plaintiff which a reasonably prudent man would recognize and protect against. That is the essence of the controlling issue in this case. Appellants cannot complain of lack of clarity or precision in the instruction because they did not propose any proper qualifying or clarifying instruction. Colgrove v. Lompoc Model 'T' Club, Inc., 51 Cal.App.2d 18, 24, 124 P.2d 128; Tabata v. Murane, 24 Cal.2d 221, 228, 148 P.2d 605. In my judgment it cannot be said that in the absence of the error in this instruction a different verdict would have been probable. Code Civ.Proc. § 475; Treu v. Kirkwood, 42 Cal.2d 602, 607, 268 P.2d 482; Gilbert v. Pessin Grocery Co., 132 Cal.App.2d 212, 227, 282 P.2d 148.
213-C: 'Toward an invitee, he who extended the invitation, express or implied, is obligated to refrain from active negligence and to exercise ordinary care to keep the premises in a condition reasonably safe for the invitee.
'But the responsibility of one having control of the premises is not absolute; it is not that of an insurer. If there is danger attending upon the entry, or upon the work which the invitee is to do on the premises, and if such danger arises from conditions not readily apparent to the senses, and if the owner has actual knowledge of them, or if they are discoverable by him in the exercise of ordinary care, it is his duty to give reasonable warning of such danger to the invitee. The owner is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses. In brief, there is
no duty to give the invitee notice of an obvious danger.
'In the absence of appearances that caution him, or would caution a reasonably prudent person in like position, to the contrary, the invitee has a right to assume that the premises he was invited to enter are reasonably safe for the purposes for which the invitation was extended, and to act on that assumption.'