Opinion
6-21-1956
Fannie M. LAMOREUX et al., Plaintiffs, Cross-Defendants, Appellants, and Cross-Respondents, v. SAN DIEGO AND ARIZONA EASTERN RAILWAY COMPANY, a corporation, et al., Defendants, Cross-Complainants, Respondents and Cross-Appellants, Union Sugar Company, a corporation, Cross-Defendant and Respondent. * Civ. 5120.
David M. McGahey, Palm Springs, for appellant Lamoreux. Horton & Knox, El Centro, for respondent and cross-appellants San Diego & Arizona Eastern Ry Co., H. D. Holmes, C. M. Brown and L. Graham. Dickenson, Sattinger & McKee, El Centro, for respondent Union Sugar Co.
Fannie M. LAMOREUX et al., Plaintiffs, Cross-Defendants, Appellants, and Cross-Respondents,
v.
SAN DIEGO AND ARIZONA EASTERN RAILWAY COMPANY, a corporation, et al., Defendants, Cross-Complainants, Respondents and Cross-Appellants,
Union Sugar Company, a corporation, Cross-Defendant and Respondent. *
June 21, 1956.
Rehearing Denied July 17, 1956.
Hearing Granted Aug. 17, 1956.
David M. McGahey, Palm Springs, for appellant Lamoreux.
Horton & Knox, El Centro, for respondent and cross-appellants San Diego & Arizona Eastern Ry Co., H. D. Holmes, C. M. Brown and L. Graham.
Dickenson, Sattinger & McKee, El Centro, for respondent Union Sugar Co.
GRIFFIN, Justice.
Plaintiff, cross-defendant and appellant Fannie M. Lamoreux (hereinafter referred to as plaintiff) was the wife of the deceased William Vance Lamoreux, who was killed in a collision between his car and a train owned and operated by defendant, cross-complainant, respondent and cross-appellant San Diego and Arizona Eastern Railway Company (hereinafter referred to as Railway Company). In an original action for damages for wrongful death, filed March 19, 1949, plaintiff and other heirs alleged that defendant Railway Company, its agents, and defendant Union Sugar Company (hereinafter referred to as Union), on March 27, 1948, negligently operated the train; that both defendant corporations jointly engaged in the construction of a sugar beet dump at the south edge of the railway tracks, and also in raising the grade of the tracks; that they negligently performed such work and negligently maintained a road crossing over said tracks; that William Lamoreux was lawfully driving his car across said crossing and it became entangled in the soft dirt placed there by defendants; and that the started forward across the main track and the train ran into and killed him. It then alleges tht plaintiff was in some doubt as to whether she was entitled to redress against all defendants named but left that question to be determined in the action. $25,000 general damages for loss of comfort, security and support, and $1,275 special damages were sought. The complaint was not served on defendant Railway Company.
It appears that about one year later a release was executed between plaintiff and her deceased husband's employer, defendant Union, and the Pacific Employers Insurance Company (the insurance carrier of Union), whereby, in consideration $3,500, defendant Union and its insurance carrier were released from all liability. The release, signed on February 20, 1950, was approved by plaintiff's counsel and is lengthy. It recites in general that a reasonable doubt exists as to the right of plaintiff to any death benefits; that on the date of death of the decedent his work had terminated at 11 a. m.; that he was on his way home, driving his own automobile, when the fatal accident occurred at 1:15 a. m. Therein it was agreed by all parties that decedent was performing no service incidental to his employment and was receiving no compensation from Union; that he was not being furnished with transportation by Union, and the accident did not occur on the premises or any approach thereto owned by or under the control of Union; that the $3,500 was paid to plaintiff by Union and the insurance carrier in full satisfaction and release of 'all claims against Union' arising under the Workmen's Compensation Insurance and Safety Laws of California; that upon the approval of the compromise agreement by the Industrial Accident Commission, plaintiff released said employer and insurance carrier 'from all claims and causes of action', whether known or ascertained, as a result of said injury, including any and all liability fo said employer and said insurance carrier to the dependents; that upon approval, plaintiff agreed to execute and file a dismissal with prejudice of the instant action as to defendant Union. On April 25, 1950, the dismissal was signed, and filed on January 25, 1954, at the time of the trial. On March 30, 1951, plaintiff filed an amended complaint, naming only the railway company and its agents, and omitting Union as a party defendant, without explanation, and it omitted any allegation of negligence against Union. The prayer for general damages was increased to $50,000.
On July 9, 1951, the Railway Company answered the amended complaint, denied generally the allegations, and admitted that on March 27, 1948, a sugar beet dump was being constructed by Union near the south side of their three pairs of tracks on the right of way under an agreement with it. It denied that the Railway crossing on which the deceased was traveling was a public thoroughfare. It alleged that any dirt dumped on the crossing was placed there by persons or corporations other than the Railway Company. Contributory negligence of the deceased in alleged and it is further alleged that he was, at the time of his death, an employees of Union and acting within the scope and course of his employment.
By proper of the court first obtained, the Railway Company filed a supplemental answer and cross-complaint and brought in Union as a cross-defendant, setting up a written lease between Union and Railway Company whereby Railway Company leased to Union space near its southerly pair of tracks to construct a sugar beet dump and pertinent structures. It also provided that in connection therewith Union and its agents were permitted to use the private railway crossing here indicated. It then contains a provision that lessee, Union, agrees to indemnify and save Railway Company harmless against any and all loss, injury, etc., resulting directly or indirectly from the maintenance, presence, use or operation of said beet loading conveyor. It is then alleged that deceased died as a direct result of the maintenance and operation of the beet-loading conveyor, operation of said private road crossing in the course of his employment by Union. In addition it is alleged that Railway Company gave Union a written license to use said crossing, including a provision that all persons using said crossing shall be deemed to be the agents of said licensee, and said licensee agreed to indemnify and save harmless the licensor against any loss, damage, etc., for any cause whatsoever resulting directly or indirectly from the maintenance, presence, or use of said crossing.
Judgment is sought against Union for costs of defending the action and for any judgment which might be obtained by plaintiff against it. It then alleges that unknown to defendant Railway Company, plaintiff and cross-defendant Fannie M. Lamoreux filed a compensation claim with the Industrial Accident Commission against Union and its compensation insurance carrier and that, without the knowledge and consent of Railway Company, Union compromised and settled the claim for $3,500 with plaintiff and filed a dismissal of the action as to Union, the alleged joint tort-feasor, as indicated by the original complaint, and claimed that the release of Union barred further action against Railway Company.
Plaintiff filed a motion to quash service of the cross-complaint upon her which was, by the court, denied and no appeal was taken from this order. On August 23, 1952, Union filed an answer to the cross-complaint and denied generally its allegations and specifically denied that deceased was, at the time of his death, acting within the scope of his employment, denied any negligence on its part, and alleged the cause of decedent's death to be the negligence of the Railway Company. A jury trial was demanded. During the trial, on January 25, 1954, Union amended its answer to the cross-complaint and alleged that the release operated as a general release of all tortfeasors, including the Railway Company and the individual defendants as well as Union. Upon these pleadings and issues the jury returned a verdict in favor of plaintiff and against defendant Railway Company and another verdict in favor of defendant Railway Company against Union on its cross-complaint, each for the sum of $20,000.
A motion for new trial was made by both the Railway Company and Union on all statutory grounds and was granted. Insufficiency of the evidence was not one of the grounds incorporated in the order and therefore will not be considered. Sec. 657, Code Civ.Proc. The only remaining grounds mentioned in that section which might justify the order are 'Excessive damages' and 'Error in law' occurring at the trial. Plaintiff appeals from the order granting a new trial as to defendant Railway Company. Railway Company appeals from the order granting Union a new trial, and cross-appeals from the verdict and judgment in favor of plaintiff.
The first argument of plaintiff is that the motions for new trial filed by the Railway Company and Union, although fully setting forth the named statutory grounds, did not show whether such motions would ber made on affidavits or the minutes of the court or both, as required by section 659 of the Code of Civil Procedure, and accordingly the notice was invalid and the court had no jurisdiction to grant a new trial. She cites such authority as Smith v. Ibos, 22 Cal.App.2d 551, 71 P.2d 847; Melvin v. Carl, 206 Cal. 772, 276 P. 574; and Kohlstedt v. Hauseur, 24 Cal.App.2d 60, 74 P.2d 314. This general rule was considered in Melvin v. Carl, supra, and it was there indicated that the failure to state these facts in the notice did not deprive the trial court of jurisdiction to act. See also Bauer v. Helene Curtis Industries, Inc., 117 Cal.App.2d 66, 254 P.2d 931; and Hamasaki v. Flotho, 39 Cal.2d 602, 248 P.2d 910. In Secreto v. Carlander, 35 Cal.App.2d 361, 95 P.2d 476 [hearing in the Supreme Court denied], where the same contention was made, it was directly held that although plaintiff's notice of intention to move for a new trial did not contain a statement that the motion would be made upon affidavits or the minutes of the court or both, any irregularities therein were waived and could not be urged upon appeal, where the motion for new trial was argued and submitted without any objection being made as to defects in the notice of intention to move for a new trial. We will therefore consider the showing in this respect. When the jury returned its verdict, according to the minutes, all counsel being present, including counsel for plaintiff, counsel for Union and the Railway Company moved the court for judgment notwithstanding the verdict, or in the alternative for a new trial. 'Counsel agree no affidavits need be filed'. Thereafter, written notices of such motions were filed, as indicated, and were heard on February 19, 1954. Apparently no objection as to form was made, and the court orally granted the motions for new trial. On February 22, plaintiff filed a notice of motion to reconsider the court's announced intention to grant a new trial and stated therein that it would be based upon the pleadings, records and files in the action, the testimony and evidence produced at the trial, and the minutes of the court. It was there, for the first time, that plaintiff stated, among other grounds, that the 'decision was not in accordance with law', but the reasons are not therein indicated. It appears that in the meantime the court had signed a written order granting the motions for a new trial and plaintiff's motion was denied. It further appears in the reporter's transcript that the hearing on the motions for new trial and judgment notwithstanding the verdict were heard at the same time, by stipulation. The court reminded counsel of the fact that they might not be able to file 'their papers' in reference to the new trial within the required time, and counsel for Union then announced: 'I dont anticipate that there will be any affidavits'. He conferred with his co-counsel and stated they would not file such affidavits and that they would stipulate it might be heard soon. It was then stipulated by all counsel that it could be heard on the next Friday and it was further stipulated that the entry of the judgment on the verdict could be held up until the ruling on the motion for judgment notwithstanding the verdict. Apparently no claim was then made as to any defects in the form of the notice and plaintiff did not insist on a strict compliance. Under the circumstances the trial court was authorized to act in granting a new trial and such claim may not now be raised for the first time on appeal. No appeal was taken from the order denying the motion for judgment notwithstanding the verdict. Sec. 963, Code Civ.Proc.
While the record does not show the particular reason why the trial court granted the motion for new trial other than the stated grounds indicated, it appears that the main claim was that the court may have erred in not holding, as a matter of law, as a special defense under section 597 of the Code of Civil Procedure, that according to the wording of the release of Union, as indicated, in did operate as a release of a joint tort-feasor. Hadden v. Moran, 104 Cal.App.2d 777, 232 P.2d 594; Leff v. Knewbow, 47 Cal.App.2d 360, 117 P.2d 922; Tompkins v. Clay Street R. Co., 66 Cal. 163, 4 P. 1165; Markwell v. Swift & Co., 126 Cal.App.2d 245, 272 P.2d 47; Bee v. Cooper, 217 Cal. 96, 17 P.2d 740; Hawber v. Raley, 92 Cal.App. 701, 268 P. 943.
Considering this question, the record shows that the original action was brought under section 377 of the Code of Civil Procedure against all defendants named in which Union was charged as a joint tort-feasor. Under such circumstances plaintiff would not be permitted to accept remuneration from Union as a compromise and settlement without releasing all joint tort-feasors. Markwell v. Swift & Co., 126 Cal.App.2d 245, 253, 272 P.2d 47. Nothing was indicated therein that the accident was industrial in nature. By the dismissal of the action as to such defendant with prejudice and the failure to include it in an amended complaint with its joint tort-feasor, without adequate explanation, does not necessarily withdraw the allegation of the original complaint from further consideration. Lee v. Hensley, 103 Cal.App.2d 697, 230 P.2d 159; Hicks v. Corbett, 130 Cal.App.2d 87, 278 P.2d 27; Rhode v. Bartholomew, 94 Cal.App.2d 272, 210 P.2d 768; Gaglione v. Coolidge, 134 Cal.App.2d 518, 286 P.2d 568. Had the compromise and settlement between plaintiff and Union been exclusively confined to liability under the Workmen's Compensation Act, a different question might here be presented. Smith v. Coleman, 46 Cal.App.2d 507, 116 P.2d 133; Eckman v. Arnold Taxi Co., 64 Cal.App.2d 229, 148 P.2d 677. In Popejoy v. Hannon, 37 Cal.2d 159, 231 P.2d 484, the court held that in all cases where the conditions of compensation do not concur, the liability of the employer is governed by the law of negligence, and that it is only where the conditions specified by the act exist that recovery of compensation is the exclusive remedy. The Industrial Accident Commission may exercise jurisdiction only in cases where an employee is injured in an industrial accident. Duprey v. Shane, 39 Cal.2d 781, 790, 249 P.2d 8. See also Secs. 3601 and 3602, Labor Code; Jackson v. Pacific Gas & Electric Co., 95 Cal.App.2d 204, 212 P.2d 591; Freire v. Matson Navigation Co., 19 Cal.2d 8, 118 P.2d 809; Schumacker v. Industrial Accident Commission, 46 Cal.App.2d 95, 115 P.2d 571; Law v. Dartt, 109 Cal.App.2d 508, 240 P.2d 1013; Baugh v. Rogers, 24 Cal.2d 200, 148 P.2d 633, 152 A.L.R. 1043.
In the settlement it is not agreed that the injury arose out of the employment, and in fact the circumstances related indicate that it did not. There is no finding of the Industrial Accident Commission that it did. The trial judge, on the motion for new trial, might well have believed, from a recitation of the facts in the settlement and from the evidence, that it did not. Accordingly, the order granting the motions for new trial is sustainable. Jackson v. Pacific Gas & Electric Co., supra; Liberty Mutual Insurance Co. v. Superior Court, 62 Cal.App.2d 601, 145 P.2d 344; Robbins v. Yellow Cab Co., 85 Cal.App.2d 811, 813, 193 P.2d 956; 27 Cal.Jur. Sec. 84, p. 380. Section 3602 of the Labor Code provides that in all cases where the conditions of compensation do not concur, the liability of the employer is the same as if this division had not been enacted.
In addition, it appears that the court gave, at plaintiff's request, an instruction on the doctrine of last clear chance. It is well settled that this doctrine does not apply to the ordinary case in which the act creating the peril occurs practically simultaneously with the happening of the accident, in which neither party can fairly be said to have had a last clear chance thereafter to avoid the consequences. Rodabaugh v. Tekus, 39 Cal.2d 290, 295, 246 P.2d 663. See also Doran v. City and County of San Francisco, 44 Cal.2d 477, 283 P.2d 1; and Wilson v. Knudson Creamery Co., 137 Cal.App.2d 552, 290 P.2d 677. Here, the uncontradicted evidence shows that deceased was approaching the south spur track of the Railway Company's line when he encountered some sand or gravel difficulty and then went forward onto the center main line track with his automobile and was struck just as he was crossing the north center rail. There was nothing to obstruct his view of the oncoming train. The testimony of the trainman indicates that this was an accommodation crossing and not a public crossing; that they had no reason to suspect that after stopping, deceased would again start and continue on across in the path of the approaching train; that as soon as they noticed his decision to do so, they were quite close upon him and stopped the train as suddenly as it could be brought to a halt. There is no evidence indicating that deceased was in a perilous position when they first noticed him, and that they had a last clear chance to avoid the collision. The trial court might well have been justified in believing that error was committed in the giving of that instruction, under the evidence produced. The testimony in reference to decedent's contributory negligence which might bar a recovery does not appear to be one of law, but it is a close question. Heintz v. Southern Pacific Co., 63 Cal.App.2d 699, 147 P.2d 621.
Contrary to plaintiff's claim, Union was an aggrieved party within the meaning of section 657 of the Code of Civil Procedure and entitled to join with the Railway Company in making in application for a new trial.
Considering the ground of excessive damages, although it does not appear as a matter of law from the evidence, that they were excessive, the trial court may have concluded otherwise. $3,500 was received by plaintiff from Union and its insurance carrier on some theory of the case. Decedent was 53 years of age and had been married to plaintiff for a number of years at the time of the accident. She was then 56 years old. Decedent had been employed by Union for several years, although not steadily, and when he worked he averaged about $250 per month and spent only part of his earnings for plaintiff's support, because she worked. She remarried about one year and five months after her husband's death to a carpenter who worked with decedent.
We conclude, from the evidence and upon the grounds here considered, that the trial court was justified in granting the motions for a new trial. By stipulation no judgment has been entered on the verdict. Accordingly, Union's cross-appeal, and attempted appeal from the 'verdict and judgment' is dismissed. Sec. 963 Code Civ.Proc; is dismissed. Sec. 963 Code Civ.Proc.; Co., 8 Cal.2d 492, 66 P.2d 641; Carpenter v. Hamilton, 18 Cal.App.2d 69, 62 P.2d 1397.
Order granting motions for new trial affirmed.
BARNARD, P. J., and MUSSELL, J., concur. --------------- * Opinion vacated 311 P.2d 1.