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District Court of Appeal, First District, Division 1, California.


Civ. 12645.

Decided: August 21, 1944

Derby, Sharp, Quinby & Tweedt, of San Francisco, for appellant. Andersen & Resner, George R. Andersen, and Herbert Resner, all of San Francisco, for respondent.

This is an appeal by defendant from a judgment awarding plaintiff the sum of $2,000, damages sustained to his fishing boat when it collided with defendant's car float or barge, towed by a tug, in San Francisco Bay.

The collision occurred around five o'clock in the morning of a day in March. The parties are agreed that the bay was calm; there was very little wind; it was dark, but clear, with the visibility good, and an ebb tide running.

Plaintiff's boat, used for crab fishing, is about 28 feet long and is powered by a 20–horsepower diesel engine. In the center of the boat is a small three–sided house with windows in the front and at the sides. The engine is located on the deck, inside this house. From the operator's position just behind the engine the engine–clutch and the boat's tiller are operated. On the morning in question plaintiff was alone on his boat, which was showing red and green port and starboard lights respectively; also two white range lights commonly called running lights.

Defendant's equipment consisted of a tug 124 feet long with a beam of 24 feet. Its gross tonnage is 199 tons and it is powered by a steam engine of 850 horsepower. The distance from the water line to the main deck is eight feet. On the main deck, forward, is a deck house about eight feet high, on top of which is a pilot house also about eight feet in height. The tug was displaying the required running lights, red and green, range lights and towing lights, and carried a crew of five men, the captain, engineer, a fireman and two deckhands. The tug was towing a barge, which was about 280 feet long with a forty foot beam, on the deck of which were thirteen railroad cars. On the stern of the barge is a pilot house which extends above the deck about 22 feet. The barge was displaying a green light on her starboard side and a white bow light; it was manned by two seamen. The tug was fastened to the port quarter, i. e., near the stern on the left hand side of the barge.

Plaintiff left Fisherman's Wharf at about 4:30 A. M. to proceed toward Point Bonita in Marin County to fish for crabs. He proceeded in a northwesterly direction through the entrance to the wharf, and after clearing pier 45 proceeded in a westerly direction about 250 yards off the south shore line at an engine speed of about six miles an hour, not taking into consideration a favoring ebb tide. When he was about 250 yards north of the San Francisco Yacht Harbor his motor stopped by reason of air getting into the fuel line. He testified that he tied his tiller, and looked around to see whether any other craft was in sight; that he saw none, and proceeded to pump fuel through the line to clear it; that this took him five or six minutes, during which time he drifted on an ebb tide; that he then started the engine again and stepped out of the pilot house to look round; that he saw defendant's barge 25 or 30 feet away; that he tried to get out of the way by putting his engine in gear and turning to the right, but was unable to do so and that “there was a crash into the bow of the barge,” the points of contact being the port bow of the barge and the head of the bow of the fishing boat, a bit to starboard; that the fishing boat which was damaged rolled away from the front of the barge; that, partly under his own power, and with the assistance of another fishing boat, plaintiff reached shallow water, where his boat sank (being raised the same day for repairs); that defendant failed to offer any help, or to throw a searchlight on his boat (the complaint specifically states that following the accident the light of the tug was turned on the fishing boat), and that the tug and barge proceeded on their way. Plaintiff further testified that at no time did he hear any warning whistles nor were any given by him. He admitted that at all times his own running lights indicated that his vessel was under control.

The captain of the tug testified that on the morning in question they left Tiburon, with the barge in tow, bound for pier 45 in San Francisco. They proceeded generally east by south. He stated that from his position on top of the tug's pilot house he first observed plaintiff's fishing boat as it cleared pier 45; that plaintiff's boat and another fishing boat crossed the bow of the tug when the boats and the tug were about a half mile apart; that he continued to watch the two boats until the collision occurred; that when plaintiff's boat was about a quarter of a mile away he blew a one–blast signal and altered the course of the tug to the right to effect a port to port crossing. He received no answering signal. He testified that when he saw no change in the course of plaintiff's boat, and seeing it directly ahead, he blew the danger signal––four or more short blasts; that still receiving no answer, and perceiving no change in the course of plaintiff's boat, the tug's engine was reversed to stop the tug and barge; that at the time of the collision they had stopped, and remained stopped from two to five minutes after the accident; that he turned the searchlight on the boat and attempted to contact plaintiff in order to ascertain whether he was all right; that another fisherman who had come to plaintiff's assistance told the captain that he would find out; that the tug and barge proceeded on their way only after the captain had seen plaintiff's boat and that of the other fisherman go around the stern of the barge and proceed toward shore. The engineer of the tug corroborated the testimony of the captain as to the signals blown, the stopping of the tug and barge, and to hearing voices after the collision. The captain made a report of the occurrence to his employers but none was made to the United States Steamboat Inspector.

The appellant company contends that the evidence does not establish any negligence on its part, and that certain acts of respondent constitute negligence which bars any recovery of damages; that the trial court committed error in giving numerous conflicting and improper instructions and in refusing to give certain instructions requested by appellant; finally, that the court erred in allowing respondent, under section 2055 of the Code of Civil Procedure, to call as a witness the captain of the tug.

First, as to the contention of appellant that the evidence is not sufficient to support the verdict, it must be conceded that the testimony of plaintiff and that of the captain is contradictory. Such conflicts, subject to rules of law, are entirely in the hands of the trier of the facts.

The rules adopted by Congress and appearing in 33 U.S.C.A. §§ 151–231, govern the navigation of inland waters. The federal law is paramount, but if it does not conflict with the Harbors and Navigation Code the latter may be used in determining the rights of the parties. The case having been tried in California, the parties are subject to the trial rules of this state.

The first question to be determined is whether there is substantial evidence that the captain of the tug was negligent. This officer was standing on top of the pilot house and had an unobstructed view; he saw the fishing boat when it first entered the bay proper from Fisherman's Wharf. It may be assumed that any additional lookout would be of no practical assistance in view of the facts that the captain continued to occupy such position and that visibility was good. It may be assumed that the captain placed himself in the best position to ascertain by sound and sight the approach of another vessel. Plaintiff has called attention to certain authorities which seem to hold that a pilot house is not the best place and does not satisfy the requirement for a lookout. It is not necessary to discuss the citations. If the captain's testimony is correct––that he first sighted the fishing boat when it was about a half mile away and continued to keep it in sight as it proceeded “approximately westerly, so as to cross my bow”; that when approximately a quarter of a mile away he signalled and altered his course; that he caused the danger signal to be given, and only when there continued to be no answering signal from the fishing boat and no alteration of its course did he give the order to “stop the boat and back her up”––the jury might well have determined that under all of the circumstances the captain was negligent in continuing on his course regardless of his signals being ignored by plaintiff who did not alter his course, or that he was negligent in the matter of the giving of the signals, or in delaying the order to stop and back up. In a word, there was evidence to justify a jury in determining that the captain was negligent.

The next question is relative to the negligence of plaintiff in stooping to clear the air from the fuel line. It is true he testified that at that time no passing vessel “was coming in, or going out.” Assuming this evidence to be true, “five or six minutes” may have been an unreasonable time to permit to elapse before taking a second look, since, as plaintiff testified, he then saw “the barge with the tugboat almost on top of me.” In a word, the jury had substantial evidence presented from which it could draw a reasonable inference that the captain of the tug and the fisherman plaintiff were each negligent, which disposes of appellant's contention that there is no evidence to support a finding of negligence on its part, and that notwithstanding the verdict judgment should be entered in its favor.

It is contended that conflicting and prejudicially erroneous instructions were given, and that proper instructions offered by appellant were refused. The criticism, aimed at some of the instructions, is rather technical. Admitting that the language of the statute was not used in every instance, and assuming that it is better form to follow such language, still synonymous language may answer the purpose. In the matter of “standing by” after the collision, the use of the word “requisite” instead of such “practicable” assistance “as may be necessary,” may not be held to be prejudicial.

Under the circumstances of this case, that a tow must have a lookout, 33 U.S.C.A., § 221, is admitted. The question arises, where “must” such lookout be located. Assuming that a lookout should be stationed in the “bow of the tow” (The A. P. Skidmore, D.C., 108 F. 972), if the failure to place one there was not the proximate cause of the collision instructions thereon perhaps might be of small consequence. In this case an instruction upon that subject was proper. The jury had a duty to determine the cause of the collision. One of the issues was whether defendant kept a proper lookout. 33 U.S.C.A. § 221. The difficulty appears to be that respondent submitted, or the court gave, instructions using the language of certain decisions applicable to certain facts, which language might be appropriate herein if the same facts were found to be true in this case. The reading of the code section, with elaboration on the facts of this case was all that was necessary. However, we cannot say that the instructions given were prejudicial to the extent that they caused a miscarriage of justice.

What has been said of the foregoing instructions applies to instructions on right of way, on the duty to stand by, on crossing courses, confusion of signals, etc. In brief, respondent submitted certain instructions based upon language used in other cases instead of reading the code section and giving additional instructions applicable to the facts of this case. Appellant resorted to the same method in several of its submitted instructions.

The instruction that appears to be of some concern reads as follows: “Whenever a collision between two vessels takes place, it is the duty of the master or person in charge of each vessel, so far as consistent with safety, to stay by the other to ascertain if she is in need of assistance, and render such aid as may be requisite and give the name and port of the vessel. Failure to do this, without reasonable cause shown, may raise a presumption that the collision was caused by his wrongful act, neglect or default. The fact that a vessel, apprised of the collision, goes on without any attempt to render assistance is to be regarded as a suspicious circumstance.” That instruction is based upon the sections contained in 33 U.S.C.A., Ch. 6, and in particular upon section 367, which sets forth the duty of a master of a vessel in case of a collision to give aid, etc., including the name of the vessel. Thereafter, the section provides: “If he fails so to do, and no reasonable cause for such failure is shown, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrongful act, neglect, or default.” Referring to the wrongful act, the section uses the words “deemed to,” whereas the instruction uses the words “may raise a presumption that * * *.” The word “deem” is of greater force and significance than the word “presume.” “Deemed” may be accepted as an adjudged fact (Words and Phrases, Perm. Ed., vol. 11, p. 478 et seq.), unless, as in the section, there are words of limitation, such as “absence of proof to the contrary.” A presumption––such as the one often repeated that a person knows the law––need not necessarily be logical. It has been likened to a bat “ ‘flitting in the twilight, but disappearing in the sunshine of actual facts.’ ” Mackowik v. Kansas City, St. J. & C. B. R. Co., 196 Mo. 550, 94 S.W. 256, 262. It has been defined as a deduction which the law expressly directs to be made from particular facts. Code Civ.Proc. § 1959. This definition is based upon experience in the probability of the happening of events and may be accepted in California in lieu of proof. “A presumption, even if disputable, will raise a conflict which is sufficient to support a finding made in accordance therewith, even though there be evidence to the contrary.” Smellie v. Southern Pacific Co., 212 Cal. 540, 558, 299 P. 529, 536. This is not the generally recognized rule in federal procedure, which is that a presumption disappears when conflicting evidence is introduced, assuming of course that such evidence is competent. It is also elementary that the trier of the facts passes upon the credibility of witnesses, and the legislature has the right to prescribe rules of evidence governing the trial of actions. Such rules of evidence are to some extent rules of procedure (People v. O'Connor, 81 Cal.App. 506, 254 P. 630), that is, the method or manner of going ahead in conducting a suit to enforce a right as distinguished from the definition of a right. 50 Corpus Juris, pp. 425, 426. In matters strictly procedural, the rule of the place of trial prevails. 31 C.J.S., Evidence, p. 509, § 5. Section 292 of the California Harbors and Navigation Code, St.1937, p. 801, which will be referred to hereafter, determines the rights of the parties herein. It is proper, therefore, that the California rule on presumptions as evidence should control. We can find no prejudicial error in the use of the words “may raise a presumption that” instead of “shall * * * be deemed to have been caused.” The statute provides: “if * * * no reasonable cause for such failure is shown,” and the instruction in this case was so limited.

Of course the part of the instruction informing the jury that such circumstance “is to be regarded as * * * suspicious” should be condemned. Surmises and suspicions are not evidence. The court instructed the jury that “you can not find a verdict against the defendant upon mere possibilities or surmises, however strong they may be.” (Italics added.) In view of this language it cannot be said that the first instruction caused a miscarriage of justice.

Appellant's proposed but refused instruction that “Where fault on the part of one vessel is established by uncontradicted testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel * * *.” (The City of New York, 147 U.S. 72, 13 S.Ct. 211, 37 L.Ed. 84; The Victory (The Plymothian), 168 U.S. 410, 18 S.Ct. 149, 42 L.Ed. 519) is the substance of a sound principle which should have been given consideration but not in the form presented, as it assumed that fault was established by uncontradicted evidence, which was not the fact.

We find that, when read as a whole, the court instructed the jury on all of the issues; that if error occurred it was on the part of both sides and was harmless and certainly did not result in a miscarriage of justice.

Appellant has not called our attention to any federal statute in conflict with section 292 of the Harbors and Navigation Code, which provides in part: “Losses caused by collision are to be borne as follows: (a) If either party was exclusively in fault he shall bear his own loss, and he shall compensate the other for any loss he has sustained. (b) If neither was in fault, the loss shall be borne by him upon whom it falls. (c) If both were in fault, the loss shall be equally divided, unless it appears that there was a great disparity in fault, in which case the loss shall be equitably apportioned.” Just how the jury apportioned responsibility for fault may not definitely be ascertained. The complaint prayed for damages and loss of earnings in the amount of $3,493.73. The jury assessed the damages at $2,000.

Over the objection of appellant, the trial court, under the provisions of section 2055 of the Code of Civil Procedure, permitted respondent to call and cross–examine the captain of appellant's tug. This section provides that in a civil action a “superintendent or managing agent of any corporation which is a party to the record,” may be called as an adverse witness.

As a remedial statute section 2055 should be liberally construed. Smellie v. Southern Pacific Co., supra; Lawless v. Calaway, 24 Cal.2d 81, 147 P.2d 604. This does not mean that every “sub–boss” or “shop–steward” (People v. Bucchierre, 57 Cal.App.2d 153, 134 P.2d 505), “foreman,” or “leader” may be cross–examined under the terms of the section. Some reasonable restriction should be placed upon the words “liberally construed.” “Chancellor Kent, in his Commentaries, lays down the rule * * * that the words ‘liberal construction,’ as so used, do not mean that the words shall be forced out of their natural meaning, but simply that the words should receive a fair and reasonable interpretation, so as to attain the object for which the instrument is designed and the purpose to which it is applied. Lawrence v. McCalmont, 43 U.S. [426, 449], 2 How. 426, 449, 11 L.Ed. 326, cited in Crist v. Burlingame, N.Y., 62 Barb. 351, 355.” 25 Words and Phrases, Perm. Ed., p. 119. The construction given to the words in the statute should be within the fair interpretation of the language used.

The object of interpretation should be to promote justice. In re Johnson's Estate, 98 Cal. 531, 33 P. 460, 21 L.R.A. 380. “Liberal construction does not require or authorize the frittering away of the written law.” In re Jessup, 81 Cal. 408, 423, 21 P. 976, 22 P. 742, 746, 1028, 6 L.R.A. 594. “The liberal construction of a statute does not include an amendment to or enlargement of its clear provisions by judicial decision.” Montgomery v. Board of Administration, etc., 34 Cal.App.2d 514, 521, 93 P.2d 1046, 1050, 94 P.2d 610. A liberal construction should not be so liberal as to result in injustice to either side. Los Angeles County v. Jones, 13 Cal.2d 554, 90 P.2d 802; Mulville v. City of San Diego, 183 Cal. 734, 192 P. 702.

It may be assumed that in applying the rule of “liberal construction” “Any relevant matter in issue in a case is within the scope of the examination of witnesses called pursuant to the provisions of such statutes” (Lawless v. Calaway, supra [24 Cal.2d 90, 147 P.2d 608]) but not as regards the selection of the witness.

The purpose of the statute is to give a party to the record in a civil action the opportunity to call the superintendent, or managing agent of a corporation which is also a party to the record, to give evidence upon some essential issue that ordinarily could not be proved except by a representative of the corporation. The party calling the witness is not bound by such testimony, but the testimony is still evidence in the case and may be used against the corporation. Under such circumstances it is important that the person thus called adversely occupy substantially with respect to the corporation the position of superintendent or managing agent, i. e., one authorized to speak for the corporation. In Bartholomai v. Owl Drug Co., 42 Cal.App.2d 38, 43, 108 P.2d 36, 40, it was held that an employee who was partly in charge of a welding job “did not fall within the category of persons who may be examined under section 2055.”

It is not necessary that the superintendent or managing agent should be known by the particular designation mentioned in the statute, if in fact he was invested with general conduct and control as the managing agent or superintendent at a particular place of business of a corporation. E. Clemens Horst Co. v. Industrial Acc. Comm., 184 Cal. 180, 193 P. 105, 16 A.L.R. 611. The superintendent or managing agent is the person in charge of the particular work, to whom has been delegated at least the management of a particular part of the business. Kinard v. Ward, 21 Cal.App. 85, 130 P. 1196; The City of Bangor, D.C., 13 F.Supp. 648.

In view of the evidence in this case we have no hesitancy in stating that the master of the vessel––the captain––who is ordinarily in authority as commander, superintendent, manager or guardian of a vessel is such a representative of the corporate owner as may be called as an adverse witness.

The judgment is affirmed.

WARD, Justice.

PETERS, P. J., and DOOLING, Justice pro tem., concur.

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