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


Civ. 10784

Decided: August 23, 1939

Cross & Brandt, of San Francisco, for appellant. Hone & Hone and Bronson, Bronson & McKinnon, all of San Francisco, for respondent.

This is an appeal by plaintiff from the court's judgment in favor of defendant following the return by a jury of a general verdict in favor of plaintiff. The motion of the defendant for judgment notwithstanding the verdict was based upon the separate provisions of sections 625 and 629 of the Code of Civil Procedure. It was granted pursuant to those of section 625.

The complaint set forth in part that defendant operated a public bath house having therein a steam room with a shower; “that said shower bath was so carelessly and negligently constructed and maintained by the defendant, that the pipe carrying hot water to said shower bath, when the valve or faucet attached to said pipe was opened, first emitted from said shower cold water before emitting therefrom hot water, that said cold water, without any intermediate change in temperature, suddenly without notice or warning changed from cold water to hot water and that said shower emitted boiling, scalding water; that said defendant carelessly and negligently failed and neglected to notify the plaintiff which of said pipes leading to said shower carried hot water and which of said pipes carried cold water, or to designate by sign, writing or in any other manner, which of said pipes leading to said shower bath carried hot water and which of said pipes carried cold water thereto.” The complaint further alleged that plaintiff, intending to take a cold shower, for the purpose of ascertaining which of the pipes carried cold water, turned on a faucet or valve attached to one of the pipes; that cold water was first emitted, followed, without warning, by scalding water, which struck and injured the body of plaintiff; that as a proximate result plaintiff suffered severe burns on his right arm and the right side of his body. Defendant denied the allegations of negligence and charged contributory negligence. Appropriate instructions were given on the law applicable to the facts. Two forms of verdict, general and special, were submitted to the jury, the latter reading in part as follows: “At the time and place of plaintiff's accident were there any signs or lettering plainly designating as to which faucet was hot and which cold. The answer is to be ‘yes' or ‘no’ and signed by the foreman of the jury.” The general verdict was returned in favor of plaintiff, and the special was answered in the affirmative.

Factually, the real issue in this case was whether or not defendant gave notice, by signs or otherwise, as to which valves terminating the respective water pipes released the hot and cold water; and if notice was so given, did plaintiff pay heed to the signs or lettering designating the hot and the cold water. The special interrogatory having been answered in the affirmative, it is necessary to determine whether the special finding is irreconcilably inconsistent with the general verdict. When a special finding of fact is inconsistent with a general verdict, the special verdict must prevail and judgment be rendered accordingly. Code Civ.Proc., sec. 625, supra. The return of the general verdict in favor of plaintiff carried with it implied findings that the evidence substantiated the position of plaintiff on the issues presented relative to the alleged negligence of defendant, and on the issue of his own alleged contributory negligence. If the answer to the special interrogatory, standing alone, as a matter of law legally entitled defendant to a different verdict, then the special controlled the general verdict. Hudgins v. Standard Oil Co., 136 Cal.App. 44, 28 P.2d 433; Koskela v. Albion Lumber Co., 25 Cal.App. 12, 142 P. 851. Such finding, however, must exclude any reasonable theory in support of the general verdict. If, for instance, in a personal injury case several acts or omissions of acts are charged as proximately causing the injury, the special finding must negative all of the alleged negligence which is supported by evidence, in order to overcome the significant predominance of the general verdict. Antonian v. Southern Pacific Company, 9 Cal.App. 718, 100 P. 877.

It becomes necessary, therefore, irrespective of the special finding, to inquire whether the complaint alleged, and the evidence proved, negligence by the defendant. In considering the special verdict, we will confine our attention to the pleadings and findings and not indulge in evidentiary presumptions favorable to the answer to the interrogatory. In determining the sufficiency of the general verdict, the evidence and all reasonable inferences drawn therefrom will be examined. Law v. Northern Assurance Co., 165 Cal. 394, 132 P. 590.

The complaint alleges careless and negligent construction and maintenance of the shower apparatus, and negligent failure to notify or designate “by sign, writing or in any other manner” which valves controlled the emission respectively of hot and cold water. Our attention has not been called to evidence supporting the theory of faulty construction in installation. The question of maintenance is closely interwoven with the subject of sufficient reasonable notice given as to the operation of the controls determining the temperature of the water emitted from the shower pipes. The evidence discloses a description of the storage tank, the heater and the system of distributing the hot and cold water. Attached to the front of the hot water tank was a thermostat auomatically controlling the temperature of the water. Assuming that plaintiff desired a tepid shower, there was no evidence to show that the thermostat was not functioning properly, or that the valves would not respond to proper manipulation. However, plaintiff did not desire a hot or tepid bath. After remaining in the steam room for a reasonable time, he decided to take a cold shower. In such a situation, the maintenance of the hot water pipes or the operation of the valve controlling water from such pipes could have nothing to do with the negligence of either plaintiff or defendant. Plaintiff was familiar with public bath houses and the operation of showers. He entered the shower space intending to turn on the cold water. Instead his hand reached for the valve connected with the hot water pipes, an act which would not be performed by an ordinarily prudent man under the circumstances if he knew or should have known the location of the respective valves. Assuming for the moment that he had constructive knowledge of such location, then we conclude that if the shower was properly maintained, plaintiff was guilty of negligence; if it was not functioning properly, he was nevertheless guilty of contributory negligence by turning on the hot instead of the cold water faucet. The proximate cause of plaintiff's injury was his own contributory negligence, found by the jury in its answer to the special issue, since without it the injury could not have occurred notwithstanding the assumed negligence of the defendant. Plaintiff alleged in his complaint that he had no knowledge of any kind as to which of said pipes leading to the shower carried cold water and which carried hot water. Upon this subject, he testified that “there was light enough”; that “I could not see no sign on the valves and I look above the valves on the wall—above and below—and between the valves, and could not find no sign”.

The purpose of the special interrogatory was to ascertain whether defendant by signs or writing notified plaintiff regarding the shower temperatures. If the answer “yes” to the interrogatory was upon a material matter and constituted a special finding, it was inconsistent with the general verdict. The designation or lack thereof by signs or lettering was an issue raised in the complaint. It was material to the issue of the negligence of plaintiff, and if answered in the affirmative destroyed the general verdict.

Appellant's objection is that the words “signs” and “lettering” in the special interrogatory are separated by the disjunctive conjunction “or” and that therefore it cannot be ascertained whether there were signs, whether there was lettering, or whether there were both signs and lettering. This form of interrogatory, while sometimes permissible, has often been criticized. When the question is indefinite, uncertain or ambiguous it frequently results in overcoming the aim and purpose of the side sponsoring such interrogatory. Likewise, when one of the separated words or clauses in the question is the antithesis of the other, such as “was it night or day”, “was it true or false”, the answer “yes” is meaningless. In other words, when the affirmative of one may be construed as the negative of the other, the special finding must be entirely disregarded. Also, when an interrogatory is double in form and leads to confusion resulting in an unintelligible answer, as in the question “was the injury willfully or intentionally inflicted”, the same rule applies. In Pennsylvania Co. v. Reesor, 60 Ind.App. 636, 108 N.E. 983, the court pointed out that willfully includes intentionally, that “willfully” is the broader term and as used in the interrogatory in that case called for a conclusion of law and hence could not be considered synonymous with the word “intentionally”. In a question such as “was the construction of the shower or the lack of signs and lettering the proximate cause of the injury”, the answer “yes” would not convey an intelligible idea of the conclusion of the number of jurors required to return a special finding as to which clause had been adopted as the proximate cause of the injury. Tosty v. Morgan Co., 151 Wis. 601, 139 N.W. 402.

When the answer is susceptible of two reasonable constructions, the one in consonance with the general verdict should be adopted (Hudgins v. Standard Oil Co., supra), as the general rule is that the interrogatory must be directed to a material issue, and that any ambiguity or uncertainty should be resolved against the party framing the question. Benedict v. Carter State Bank, 54 S.D. 14, 222 N.W. 500. One interrogatory with alternatives stated therein is sufficient if the alternatives are not irreconcilable, and completely answer the question of negligence or contributory negligence as the facts and the law demand. If one witness in a given case testified that bruises upon the body of an alleged injured person were black and a second witness claimed they were blue, a question seeking to ascertain whether the bruises appeared upon the body before the accident, and describing the discoloration as “black or blue”, would not be objectionable, because the color of the bruises would be immaterial. The purpose of such an interrogation would be to ascertain whether the bruises, black or blue, were present before the accident.

Assuming that the word “signs” and the word “lettering” as applied to the facts in the instant case are alternatives, either alternative produces the same legal effect. The test for a special interrogatory is whether or not the question is plain, manifest and intelligible, and whether or not a direct answer may be given. Plyler v. Pacific etc. Cement Co., 152 Cal. 125, 92 P. 56. By the answer returned to the question, the jury determined that the faucet to the hot water and the faucet to the cold water were “plainly” designated by “signs or lettering”. As used in the question, the word “sign” is not an antonym of the word “lettering”, but rather falls into the classification of a synonym. Having determined that each of the faucets was “plainly” designated, the manner or method of designation was simply corroborative of such plain designation. Whether it was by sign or by lettering was a mere incident and indicative only that if plaintiff, from either the signs or the lettering, or both, did not see the designated hot and the designated cold water faucets, he should have seen them. The answer to the question determined the proximate cause of the accident, and being inconsistent with the general verdict, precluded plaintiff from recovery.

Appellant contends that there is nothing in the record to show that the requisite number of jurors did in fact answer in the affirmative the question as presented. The answer to this is that our attention has not been called to anything in the record to support such contention.

The judgment is affirmed.

I dissent.

While it is true that a special finding will control a general verdict, it is equally true that “all presumptions are in favor of the general verdict for the plaintiff, and it must control if the special verdict is not absolutely irreconcilable therewith”. Koskela v. Albion Lumber Co., 25 Cal.App. 12, 27, 142 P. 851, 857. The same case reiterated the well-settled rule that (25 Cal.App. page 27, 142 P. page 857) “answers to interrogatories cannot be aided by intendment, as all intendments are in favor of the general verdict”. The general verdict imports a finding in favor of plaintiff on all the averments of the complaint material to his recovery. It is the duty of an appellate court in a case like the instant one, to interpret the special verdict, if reasonably possible, so that it is harmonized with the general verdict. (24 Cal.Jur., 910.) In Hudgins v. Standard Oil Co., 136 Cal.App. 44, 51, 28 P.2d 433, 436, the court quotes from 27 Ruling Case Law, 880, in part as follows: “* the special facts returned must be of such a nature as to exclude the possible existence of other controlling facts, provable under the issues, relating to the same subject. They must clearly exclude every conclusion that would harmonize with the general verdict, as it is only when the antagonism between the special findings and the general verdict on material questions is of such a nature as to be beyond the possibility of reconciliation under any supposable state of facts provable under the issues that the special findings control.” Under these rules it is our duty to engage in every presumption and every inference to support the general verdict, and if any reasonable theory can be evolved whereby the special and general verdicts can be reconciled, then the general verdict controls. The majority decision, while correctly stating these rules, fails to apply them to the facts here presented. It is my opinion that if these rules be so applied a reversal must result.

The complaint charged negligence in two respects: (a) In not properly marking the faucets; and (b) in so maintaining the shower that the hot water faucet first emitted cold water and then, without “any intermediate change in temperature, suddenly without notice or warning changed from cold water to hot water, and that said shower emitted boiling, scalding water.” All that the jury specially found in the present case was that there were “signs or lettering plainly designating as to which faucet was hot or cold”—all other issues, including that of proximate cause were decided in favor of the plaintiff by the general verdict. The jury might well have found, and on this appeal I think we are compelled to assume they did find, that even if the faucets were plainly marked, that the proximate cause of the injury, under the circumstances disclosed in the record, was not the failure to see the markings, but the maintenance of a shower that first emitted cold water and then suddenly, without intermediate changes in temperature, emitted boiling water—a condition that would exist if the water in the tank were boiling and the pipes partially filled with steam.

It is my opinion that the jury was entitled to find, and we must conclusively presume it did find, that the maintenance of a shower in the condition above described constituted a trap, and that such maintenance was the proximate cause of the injury. It is my view that the majority opinion improperly invades the proper province of the jury. Proximate cause is normally a question for the jury and not for the appellate court. For this reason I believe the judgment should be reversed.

WARD, Justice.

I concur: KNIGHT, J.