Hearing Granted by Supreme Court Feb. 16, 1939.
Appeal from Superior Court, Los Angeles County; Samuel R. Blake, Judge.
Action by Edward Westberg and wife against Stanley H. Willde, B. Talsky, and B. Talsky, doing business under the fictitious firm name of Reliable Delivery Service, and others, to recover damages for the death of plaintiffs’ son. From an adverse judgment, the named defendants appeal.
Parker & Stanbury, Harry D. Parker, and Vernon W. Hunt, all of Los Angeles, for appellant Stanley H. Willde.
Richard E. Reese, of Los Angeles, for appellant B. Talsky.
Earle M. Daniels and W. Eugene Craven, both of Los Angeles, for respondents.
This is an appeal from a judgment in favor of respondents after trial before a jury in an action to recover damages as the sole heirs of Morris E. Westberg, deceased.
The essential facts are:
March 12, 1937, at the intersection of Twenty-third and Trinity streets in the city of Los Angeles a collision occurred between an automobile which was being operated by Morris E. Westberg and a truck owned by appellant Talsky and at the time of the accident operated by appellant Willde. As a result of the accident Westberg received injuries from which he died.
This is the sole question to be determined:
Did the trial court commit prejudicial error in instructing the jury as follows:
"The presumption is that every man obeys the law, and the presumption in this case is that the plaintiff’s son, Morris E. Westberg, was traveling at a lawful rate of speed, and on the proper side of the highway at all times. This presumption is in itself a species of evidence, and it shall prevail and control your deliberations until and unless it is overcome by satisfactory evidence"?
This question must be answered in the affirmative. In Campbell v. City of Los Angeles (September 20, 1938), 82 P.2d 720, this court, in reversing the judgment of the trial court because an instruction similar to the one here questioned had been read to the jury, said at page 720:
"This is the sole question necessary for determination:
"Did the trial judge commit prejudicial error in instructing the jury as follows:
" ‘There is a presumption that Howard Campbell used ordinary care for his own safety.’
"This question must be answered in the affirmative. The law is established in California that where the evidence introduced by plaintiff discloses the acts and conduct of the injured party immediately prior to and at the time in question, the presumption of law set forth in the instruction quoted above is inapplicable." (Citing numerous cases.)
Mr. Justice Wood, in concurring in the judgment in the case above referred to, expressly disagreed with the opinion of the majority of the court, saying at page 721: "I cannot agree with the statement in the majority opinion concerning the circumstances under which the presumption may not be invoked."
Thus the question of the accuracy of the rule of law as stated by the majority of this court was squarely placed in issue before our Supreme Court when thereafter a petition for hearing therein was filed with that tribunal, which petition was on November 17, 1938, denied. It is therefore clear that any confusion which may have arisen as to the correct rule of law by reason of apparently conflicting language in several decisions has been settled by our Supreme Court, and that all courts inferior thereto in the state of California are now bound to follow the law as stated in the majority opinion in Campbell v. City of Los Angeles, supra.
The law is likewise settled that the giving of the instruction set forth above in a case where it is inapplicable is prejudicial error if contributory negligence of plaintiffs’ decedent would bar a recovery. Campbell v. City of Los Angeles, supra. Applying the rule of law above stated to the instant case, it is evident that the instruction should not have been given, for the reason that respondents introduced testimony of witnesses who related in detail and without conflict the acts of deceased prior to and at the time of the accident. Also there was evidence from which the jury might have found that decedent was contributorily negligent. It is self-evident that, if decedent was contributorily negligent, respondents could not recover in the instant case, and therefore the giving of the questioned instruction constituted prejudicial error.
For the foregoing reasons the judgment is reversed.
I concur: CRAIL, P.J
I dissent. The instruction which, according to the majority opinion, necessitates a reversal was given in identical language in Olsen v. Standard Oil Co., 188 Cal. 20, 24, 204 P. 393, 395: "The presumption is that every man obeys the law and the presumption in this case is that the plaintiff was traveling at a lawful rate of speed and on the proper side of the highway at all times. This presumption is in itself a species of evidence and it shall prevail and control your deliberations until and unless it is overcome by satisfactory evidence." The court in affirming the judgment approved the instruction, saying: "The defendant claims that this is erroneous. We think it is correct. *** The instruction is therefore strictly in accordance with the Code on the subject." No ruling adverse to the ruling of the Olsen Case has since been made by the Supreme Court.
Much confusion has resulted from the various decisions of reviewing courts in California on the subject of giving to juries the rule concerning presumptions of law as evidence. In Mar Shee v. Maryland Assurance Corp., 190 Cal. 1, 7, 210 P. 269, 272, the confusion was recognized as then existing, for the court stated: "There seems to be some confusion in the decisions of this state with respect to the extent to which under various circumstances presumptions of law are to be regarded as evidence of facts." The court referred to three distinct lines of cases, or groups, which had brought about the confusion. The court attempted to "resolve this apparent conflict" and set forth this rule: "From the foregoing we deduce that a fact is proved as against a party when it is established by the uncontradicted testimony of the party himself or of his witnesses, under circumstances which afford no indication that the testimony is the product of mistake or inadvertence; and that, when the fact so proved is wholly irreconcilable with the presumption sought to be invoked, the latter is dispelled and disappears from the case." The rule of the Mar Shee Case was followed in Smellie v. Southern Pacific Co., 212 Cal. 540, 299 P. 529, wherein the subject is fully and clearly discussed in the opinion by Mr. Justice Shenk.
Several decisions have been made by the Supreme Court after the Mar Shee and Smellie Cases, which in my opinion have resulted in the resurrection of the confusion which caused so much trouble up to the time of the Mar Shee decision. I refer particularly to Paulsen v. McDuffie, 4 Cal.2d 111, 47 P.2d 709, and Mundy v. Marshall, 8 Cal.2d 294, 65 P.2d 65, wherein statements are to be found inconsistent with the rule of the Mar Shee and Smellie Cases. In the Paulsen Case the discussion was clearly unnecessary to the decision of the issue before the court and in the Mundy Case it was held that from the testimony of the eye witnesses the decedent was guilty of contributory negligence as a matter of law. The testimony of the plaintiff’s witnesses was therefore "wholly irreconcilable" with the presumption sought to be invoked. The brief statement in the Mundy Case, based upon the Paulsen Case, which is cited as authority, must therefore be considered only as a dictum. In Tuttle v. Crawford, 8 Cal.2d 126, 132, 63 P.2d 1128, the court again referred to the Paulsen Case but held that the giving of the instruction had not resulted in a miscarriage of justice.
The Supreme Court again affirmed the doctrine of the Mar Shee and Smellie Cases in the case of Engstrom v. Auburn Automobile Sales Corp., 77 P.2d 1059, wherein it is stated [page 1063]: "Generally speaking, however, it may be said that a presumption is dispelled when a fact which is wholly irreconcilable with it is proved by the uncontradicted testimony of the party relying on it or of such party’s own witness, when such testimony was not the product of mistake or inadvertence." The latest ruling by the Supreme Court on the subject was made on November 22, 1938, in the case of Ellison v. Lang Transp. Co., 84 P.2d 510, wherein the court in an opinion written by the author of the opinion in the Smellie Case, again reverts to the rule of the Mar Shee and Smellie Cases. The trial court had instructed the jury that "the presumption is that a person takes ordinary care of his own concerns. This presumption is in itself a species of evidence and it shall prevail and control your deliberations until and unless it is overcome by satisfactory evidence". [page 511.] Notwithstanding the plaintiffs had "presented testimony as to the details of the accident and the conduct of the decedents before and at the time of the occurrence", the court held in effect that the evidence presented by plaintiffs was not wholly irreconcilable with the presumption involved. The court pointed out that the jury had been instructed that the presumption remained "only until it was overcome by satisfactory evidence" and in this regard it was to be distinguished from Kelly v. Fretz, 19 Cal.App.2d 356, 65 P.2d 914, wherein the qualifying language was not included in the instruction given.
The evidence presented by plaintiffs’ witnesses in the case now under review is not wholly irreconcilable with the presumption concerning which the jury was instructed. Neither was the instruction lacking in the qualifying clause which was lacking in Kelly v. Fretz, supra. In view of the two latest decisions of the Supreme Court, the Engstrom Case, supra, and the Ellison Case, supra, I cannot reach the same conclusion as that of the majority opinion.
I cannot agree with the majority in their statement that the denial by the Supreme Court of a petition for a hearing in the case of Campbell v. City of Los Angeles, Cal.App., 82 P.2d 720, is decisive of the question now under consideration. The instruction which brought about the reversal in the Campbell Case was different from the instruction in the present case in that the qualifying language, "unless it is overcome by satisfactory evidence", was not included in the instruction given in the Campbell Case. Moreover, it has been held by the Supreme Court that the denial in any case of an application for the transfer of the case decided by a District Court of Appeal to the higher court is not to be taken "as an affirmative approval" by the Supreme Court "of the propositions of law laid down in such opinion". People v. Davis, 147 Cal. 346, 350, 81 P. 718, 720. Again it is to be noted that the Ellison Case was decided after the hearing was denied in the Campbell Case.
It is unfortunate indeed that so much confusion has been brought about by the numerous decisions on the subject of instructing juries concerning the presumption hereinabove discussed. It has become extremely difficult for the most painstaking trial judges to instruct juries on the subject with any confidence that the verdicts will be sustained by reviewing courts. This of course results in great expense to the litigants and very frequently in an obstruction or denial of justice. A particularly distressing feature of the situation is that in all probability the instructions on this subject have not influenced the juries in the slightest and that the verdicts would have been the same if the questioned instructions had not been given. The words of Mr. Justice Seawell in Tuttle v. Crawford, supra, 63 P.2d 1131, are appropriate: "The presumption is a natural one, and the bare Code section, as given by the court, told the jury nothing that the philosophy of life and human experience do not impart to the average person. *** It is probable that the instruction as given made no impression whatever on the minds of the jury."
I have just received from Judge William J. Palmer, chairman of a committee of superior court judges of Los Angeles county collaborating with a committee of lawyers, a report containing an excellent set of instructions for use in civil jury trials. These instructions will doubtless prove of inestimable value. Their general use will result in the elimination of many pitfalls which have caused reversals of judgments founded on verdicts of juries. Of special interest at this time is instruction No. 60, under the heading, "Presumption of Ordinary Care". The committee points out that doubt has arisen from statements in some of the opinions of reviewing courts, citing the cases referred to above, and proposes an instruction which, if given, doubtless would prevent a reversal on the point in question. The proposed instruction follows: "At the outset of this trial, each party was entitled to the presumptions of law that every person takes ordinary care for his own concerns and that he obeys the law. These presumptions are a form of prima facie evidence and will support findings in accordance therewith, in the absence of evidence to the contrary. When there is other evidence that conflicts with such a presumption, it is the jury’s duty to weigh that evidence against the presumption (and any evidence that may support the presumption), to determine which, if either, preponderates. Such deliberations, of course, shall be related to, and in accordance with, my instructions on the burden of proof."