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District Court of Appeal, Second District, Division 2, California.

PARKER et al. v. JAMES E. GRANGER, Inc., et al.a1

Nos. 8745-8752.

Decided: December 31, 1934

Lasher B. Gallagher, Burnett Wolfson, Chotiner, Recht & Chotiner, Ford & Coles, Frank M. Benedict, Philip Cohen, and A. A. Rotberg, all of Los Angeles, for appellants. Arthur W. Eckman, Wm. B. Himrod, and Kidd, Schell & Delamer, all of Los Angeles, for respondents.

Eight separate actions were commenced by the heirs or personal representatives of persons who lost their lives in a collision between two airplanes. The cases were consolidated and tried together, and from judgments in favor of defendants these appeals are taken.

On January 2, 1930, Fox Film Company, engaged in the business of producing motion pictures, entered into a written contract with respondent James E. Granger, Inc., to furnish one Lockheed Vega cabin plane and two “Whirlwind planes” as camera planes, at stated prices per day, in first-class condition and with licensed pilots to operate the same, to be used under direction of Kenneth Hawks as director and Max Gold as assistant director of the Fox Film Company in the filming of a picture showing a parachute jump over the Pacific Ocean. James E. Granger, Inc., obtained and furnished the services of a Lockheed Vega plane with Captain Roscoe Turner as lawfully licensed pilot thereof, and made arrangements to hire from Tanner Motor Livery, a corporation, also a respondent herein, two Stinson planes for use as camera planes, with licensed pilots to operate the same, agreeing to pay therefor a hire fixed in terms of dollars per hour. These planes and pilots were offered by James E. Granger, Inc., to Fox Film Company and by it approved and accepted for use in making the picture. After dual controls were installed in the Stinson planes and cameras mounted therein, and Hawks had given detailed directions as to the course of the flight and the positions of the planes when photographing was to be done, the flight of the three planes commenced. Captain Turner was pilot of the Lockheed Vega, carrying the parachute jumper; Hallock Rouse, a regular employee of Tanner Motor Livery and a lawfully licensed pilot, was pilot of one Stinson plane, with Max Gold sitting beside him at the dual control, and Ross Cook, also a regular employee of Tanner Motor Livery and a lawfully licensed pilot, was pilot of the other Stinson plane, with Hawks sitting beside him at the dual control. Neither Hawks nor Gold was a licensed pilot. Six other employees of Fox Film Company, participating in the picture making, were divided between the two Stinson planes. While flying out over the bay in a general southwesterly direction on a designated course to be followed for a distance with return thereon, the Lockheed Vega was in the lead, one Stinson to its left and rear, the other to the left and somewhat to the rear and below the first Stinson. The Lockheed Vega allowed the two Stinsons to pass and then made a left turn to follow the return course. Thereupon the two Stinsons commenced to make a left turn, when the leading one appeared to slide sideways, the tips of the wings on the two planes touched, then their noses came together, there was an explosion, and both planes fell into the ocean carrying to their death all the occupants thereof.

The foregoing is but a brief sketch of the occurrence, no effort being made to state details which are embodied in over 1,000 pages of testimony and other evidence. On the evidence and under the instructions given, the jury found for defendants, respondents herein. On this appeal appellants embody their contentions in three questions as comprising those involved in the case, and have presented the same under some sixteen points. As many of these points naturally fall into separate groups, we will not attempt to follow the order of their statement in the briefs, but will state the same, and dispose of them in the order of occurrence or position in the course of the trial proceedings.

1. After the jury was sworn and before any evidence was offered, a juror voluntarily stated from the jury box that he had certain views as to the status of persons going up in airplanes in respect to right to protection, depending on whether they went up as passengers or as one who is being paid a big salary and knew what he was “going up against.” Appellants requested leave to interpose a challenge for cause. This the court denied after interrogating the juror, who announced that notwithstanding his views of the law he would follow the instructions of the court. We find no abuse of discretion in this ruling.

2. During presentation of their cases defendants offered in evidence a document issued by the Department of Commerce of the United States containing air commerce regulations relating to the licensing of aircraft and rules of air traffic. The court sustained an objection to its introduction into evidence made on the grounds that the same was incompetent, irrelevant, and immaterial. The ruling of the court was correct. The document offered purported to contain copies of official acts and regulations of a department of the United States. Of these the court takes judicial knowledge (section 1875, subd. 3, Code Civ. Proc.) and proof thereof by evidence is not required. Varcoe v. Lee, 180 Cal. 338, 181 P. 223. All questions of law and the construction of statutes and other writings are to be decided by the court; and whenever the knowledge of the court is made evidence of a fact, the court is to declare such knowledge to the jury. Section 2102, Code Civ. Proc. In charging the jury the court may state to them all matters of law which it thinks necessary (section 608, Code Civ. Proc.), and either party may request special instructions to be given covering any law pertinent and applicable to the case (section 609). If the regulations offered in evidence contained law pertinent to and controlling in the case, appellants were privileged to request special instructions thereon; but no such request was made. We have examined the regulations offered and find nothing therein of which the court was charged with judicial knowledge and which the court was called upon to declare to the jury. The flight of the planes herein mentioned was intrastate, and under the Federal Constitution and the California Aircraft Act enacted in 1929 (St. 1929, p. 1874), the state of California was vested with exclusive power to prescribe air traffic rules to govern the operation of aircraft in flying in purely intrastate flights. No such rules had been made by the Legislature when the accident herein occurred, and the conduct of the pilots and others involved in the accident would be measured and judged only under the general law and rules of negligence pertinent and applicable to the case.

3. During the trial expert witnesses were called by respondents and objections by appellants to certain questions propounded to them were overruled. The first two sought to elicit definitions of aeronautic terms and were clearly proper. The others to which objections were made were of a hypothetical nature, and appellants contend they were not based in whole on facts in evidence and called for guess or conjecture rather than opinion. We have examined the same and find no error in the court's rulings which could in any degree be deemed prejudicial to appellants. The questions were predicated on assumption of facts, concerning which there was evidence, possessing supporting tendency, and were framed in accordance with respondents' theory of defense; and the questions and answers thereto were clearly in line with respondents' defenses.

4. Appellants also claim error in the admission in evidence over their objection of conversations between the director, Hawks, and James Granger, president of James E. Granger, Inc. We find no error in the court's rulings. The evidence elicited was clearly relevant and material to a clearer exposition of the facts touching the question of performance of the contract between the Fox Film Company and James E. Granger, Inc., and the acceptance and approval by the Fox Film Company of the arrangements for the hiring and use of the two planes and pilots made with Tanner Motor Livery.

5. At the close of the evidence and after all parties had rested, appellants each moved for a directed verdict in their favor, respectively, and all such motions were denied. Such motion may be made by a plaintiff where, upon the whole evidence, the cause of action alleged in the complaint is supported and no support is given to the defense or any of the defenses alleged by defendant. But such motion may not be granted where there is a conflict in the evidence of a substantial kind, relating either to the basis of plaintiff's cause of action or any defense thereto. Kohn v. National Film Corp., 60 Cal. App. 112, 212 P. 207. To authorize the granting of such a motion the evidence must be undisputed or of such conclusive character that the court, in the exercise of a sound discretion, would be compelled to set aside a verdict returned in opposition to it. The rule is established in this state that the ruling of a trial court as to whether a given state of facts presented before it does or does not amount to negligence as a matter of law will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. Burgesser v. Bullock's, 190 Cal. 673, 214 P. 649. The same rule of course attaches to the question of whether facts presented in support of a defense do or do not sustain the same. Under this rule, and after examination of the record herein, we cannot disturb the discretionary ruling of the court on the motions for directed verdicts. And for the same reasons, and based on the same foundation, we cannot disturb the court's ruling denying the subsequent motions for judgments in favor of plaintiffs notwithstanding the verdicts in favor of defendants. The foregoing conclusions apply with equal force to many specifications of insufficiency of the evidence to support various issues and defenses in the case, all of which were submitted to the jury on the evidence, which was either in conflict or of such character as to support different inferences reasonably to be based thereon.

6. Respondents also made a motion for a directed verdict in each case, which was likewise denied. In their reply brief herein appellants contend that it is the law that when both parties move for a directed verdict the trial court is under the duty of taking the case from the jury. In support of this contention appellants cite a note in Ann. Cas. 1913C, page 1342, wherein the following appears: “The general rule seems to be that where both parties have requested the court to direct a verdict, and neither has asked to have any fact in issue determined by a jury, the parties will be presumed to have waived the right to a trial by jury, and to have constituted the judge a trier of questions both of law and of fact.” A rather formidable list of authorities from other jurisdictions are therein cited in support of such statement of the rule. We are of the opinion that such rule cannot be invoked and applied under the Constitution and procedure and practice in California. Trial by jury may be waived only in the manner designated in section 631 of the Code of Civil Procedure, in which request by both parties for a directed verdict is not included. It has been held in this state that a jury trial cannot be waived by implication. Smith v. Pollock, 2 Cal. 92; Platt v. Havens, 119 Cal. 244, 51 P. 342; People v. Metropolitan Surety Co., 164 Cal. 174, 128 P. 324, Ann. Cas. 1914B, 1181. In Swasey v. Adair, 88 Cal. 179, 25 P. 1119, it was held that the right to a jury trial secured to a party under the provisions of section 592 of the Code of Civil Procedure could be waived only by such party in one of the modes prescribed in section 631 of that code. Section 7 of article 1 of the Constitution of this state provides that: “The right of trial by jury shall be secured to all, and remain inviolate. * * * A trial by jury may be waived * * * in civil actions by the consent of the parties, signified in such manner as may be prescribed by law.” The manner prescribed by law is that contained in section 631 of the Code of Civil Procedure. Under a practice similar to that of California, the Supreme Court of Illinois in Wolf v. Chicago Sign Printing Co., 233 Ill. 501, 84 N. E. 614, 13 Ann. Cas. 369, held that waiver of jury trial could not be had by implication, that motions for directed verdicts by both parties did not operate as a waiver of jury trial, and that the rule above quoted was inapplicable to the practice in Illinois. Clearly the rule quoted is not applicable under the law and practice in California.

7. Upon the issues framed by the pleadings, including several separate defenses, and under the evidence, the court gave instructions covering the doctrines of res ipsa loquitur, volenti non fit injuria, joint enterprise, inevitable or unavoidable accident and contributory negligence, in addition to general and special instructions usual in such cases as these. Appellants complain of many given at the request of respondents and of several refused on their own request. We have carefully examined the same as given and refused, both in respect to contents and in connection with the instructions as a whole, and find no error in the action of the court which would be likely to operate to the prejudice of appellants, excepting, however, from this statement, for purpose of separate consideration, certain instructions hereinafter discussed.

Plaintiffs herein charged defendants with negligence in general terms, and introduced proofs tending to show that the two planes which came into collision were owned by defendant Tanner Motor Livery, which was engaged in the business of renting planes with licensed pilots as a private carrier, and that through James E. Granger, Inc., the Tanner Motor Livery had hired the two planes with pilots to the Fox Film Company, employer of the deceased persons represented herein by plaintiffs, to carry such persons as passengers for hire on a picture-making trip over the Pacific Ocean and return; that the planes collided in flight, resulting in the death of all the occupants thereof; and that the planes and pilots were at the time under the control of defendants. No explanation of the cause of the collision was furnished by plaintiffs' evidence, but such evidence clearly left it doubtful as to whether or not the ultimate cause of the collision was the negligence of the defendants. Under such state of the cases it was proper to instruct the jury as to the doctrine of res ipsa loquitur. Connor v. Atchison, etc., Ry. Co., 189 Cal. 1, 207 P. 378, 26 A. L. R. 1462; Damgaard v. Oakland High School Dist., 212 Cal. 316, 298 P. 983. At plaintiffs' request it gave the usual and approved form of such instructions setting forth the doctrine as defined and used in this state. Following such instruction, at the request of defendant Tanner Motor Livery, the court gave the following instructions: R3 in part: “In other words, the doctrine [res ipsa loquitur] is based upon the theory that the burden of showing exactly how the accident occurred should rest upon the person who has the better knowledge or means of knowledge as to how it did occur. Therefore, if both plaintiff and defendant have equal knowledge or equal means of knowledge as to how the accident occurred, the doctrine cannot apply. Likewise, if neither plaintiff nor defendant has any knowledge or means of knowledge as to how the accident occurred, the doctrine also cannot apply.” R4 in part: “In order that the doctrine of res ipsa loquitur should apply to a given case the plaintiff must have first shown by a preponderance of the evidence that certain conditions existed; amongst these conditions are the following: * * * 4. The person against whom the doctrine is invoked must possess or have possessed superior knowledge as to the cause of the accident or must be or have been in a better position to obtain that knowledge, so that the duty of explaining the accident should, in fairness, rest upon him on account of that greater knowledge or greater means of knowledge.” R8 in part: “The doctrine of ‘res ipsa loquitur’ does not apply to any of the following situations: * * * 5. Where the defendant or his agent has not now nor has had superior knowledge or means of knowledge of the cause of the accident. In any one or all the above cases the doctrine does not apply, and the happening of the accident raises no inference whatsoever of negligence on the part of any person, with the result that a plaintiff, to recover against a defendant, must prove by a preponderance of the evidence the actual cause of the accident and that said accident was caused by the negligence of that defendant.”

When the other conditions upon which the doctrine of res ipsa loquitur is founded are established by evidence so as to make a prima facie case of negligence, the ultimate application thereof to a given case after the evidence is all in depends on the factor of explanation of cause of the accident. This explanation may be established by either party. Manuel v. Pacific Gas & Elec. Co., 134 Cal. App. 512, 25 P.(2d) 509. A prima facie case of negligence having been once established by the evidence under the operation of the doctrine in question, the duty devolves upon the defendant to explain how the accident occurred, and to show that he was without negligence or that it was the result of causes beyond his control, in order to secure relief from responsibility. Steele v. Pacific Electric R. Co., 168 Cal. 375, 143 P. 718. By giving the instructions above quoted the jury was told that no explanation by either party of the cause of the accident would make the doctrine inapplicable. This is not the law. The instructions quoted have the effect of entirely destroying the benefit of the doctrine in cases where neither party explains, or where each party has equal knowledge or means of knowledge of the cause of the accident. Under the qualification of the doctrine and its application as expressed in these instructions, all that a defendant need do to overcome the prima facie case would be to declare ignorance of the cause or show that the parties had equal knowledge or means of knowledge thereof, or that neither had any knowledge thereof. That this is not the rule has been decided in Ireland v. Marsden, 108 Cal. App. 632, 291 P. 912, 917, in which case a petition for hearing was denied by the supreme court. Therein the court said: “Does the fact that the defendant and all of his witnesses did not know the cause of the accident explain the occurrence so as to avoid the inference of negligence? * * * ‘I do not know’ does not explain anything; throws no light upon what causes an accident; is no explanation. Under the doctrine of res ipsa loquitur, defendant must explain in some degree, that degree being sufficient to rebut the inference of negligence, which comes to the aid of the plaintiff's cause under the doctrine of res ipsa loquitur.”

As the case of plaintiffs herein rested on the inference of negligence furnished by the doctrine in aid of plaintiffs' case, and depended for its continued vitality on failure of defendants to explain it away by showing that the accident happened without negligence on their part, or that it happened from causes over which they had no control, the effect of the instructions above quoted was highly prejudicial, as they operated to relieve defendants of the duty to so explain and to overcome or offset the inference of negligence supplied by the doctrine. The doctrine is in part founded on the theory that defendant possesses superior knowledge of the cause of the accident, not on the fact as to whether he does so possess it or not. And the doctrine once having attached under plaintiff's evidence, the inference of negligence arises thereunder and prevails unless it is offset or overcome by defendant's explanation.

The orders denying the motions for judgment notwithstanding the verdicts are affirmed. The judgments are reversed.

WILLIS, Justice pro tem.

We concur: STEPHENS, P. J.; CRAIL, J.