PETERSON v. GENERAL GEOPHYSICAL CO

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District Court of Appeal, Third District, California.

PETERSON et al. v. GENERAL GEOPHYSICAL CO. et al.

Civ. 7293.

Decided: October 01, 1947

Conley, Conley & Conley, of Fresno, and Hugh K. Landram, of Merced, for appellants. C. Ray Robinson, Samuel V. Cornell, and Margaret A. Flynn, all of Merced, for respondent.

The plaintiffs, who are the surviving wife and children of one George Peterson, commenced this action to recover damages for his death alleged to have resulted from the exploding of a dynamite cartridge by the defendants. From a judgment for $40,000 entered against them pursuant to the verdict of a jury the defendants, General Geophyscial Company and M. H. Lyle, have appealed. The defendant H. W. Davis was not served with process, and on motion for a non-suit at the conclusion of the plaintiffs' evidence, the suit against the Ohio Oil Company and Catherine Giannone was dismissed.

The action arose out of the following facts: The defendant General Geophysical Company is a foreign corporation engaged in the making of seismographic surveys. At the time of the accident it was conducting such a survey as an independent contractor for the Ohio Oil Company on property owned by the defendant Catherine Giannone and with her gratuitous permission and consent. Such work involves the setting off of explosive charges at the bottom of holes drilled in the earth to a depth of 50 to 80 feet, and by means of instruments, measuring the reflection of the resulting vibrations. By interpreting the record of these vibrations the structure and nature of the subsurface stratum may be determined. In the operation of drilling the holes in the present case two small excavations about two or three feet in diameter by two feet deep called ‘slush pits' were made near the drilling rig for the purpose of holding and receiving water pumped over the cutting edge of the bit during the drilling to keep it from becoming clogged witth dirt and debris.

These two slush pits were made by setting off an explosive charge at or near the surface of the earth, the noise of which caused a team of horses, then being driven by decedent to become frightened and to start suddenly, thereby throwing him to the ground with such force as to cause his fatal injury.

The complaint sets forth two counts or causes of action: The first is based upon a theory of absolute liability for damages resulting from the blasting, the second is based on an allegation of negligence. A separate answer was filed by Catherine Giannone and a consolidated answer was filed by the defendants General Geophysical Company, Ohio Oil Company and M. H. Lyle. At the same time a petition for removal of the cause to the federal court was filed by the corporate defendants and M. H. Lyle on the grounds of the diversity of citizenship of the defendants; that a separable controversy existed, and that the resident defendant Catherine Giannone had been joined fraudulently, which petition was denied.

As grounds for reversal the appellants contend that the trial court erred in refusing to transfer the cause to the United States District Court; that the verdict and the judgment are not supported by the evidence for the reason there was no proof of negligence on the part of the defendants or either of them; that the court erred in refusing to grant a non-suit as to the first cause of action in the complaint, which was based on a theory of absolute liability regardless of negligence, and in submitting the case to the jury on that theory; that the court erred in refusing to excuse a juror who was challenged on the ground of her prejudice; that the court erred in receiving and excluding evidence, in giving and refusing to give instructions to the jury; and that the amount of damages awarded is excessive.

On the first point the appellants argue that upon the filing of the petition and bond for removal, the jurisdiction of the state court ceased and its subsequent proceedings in the case are void. With this contention we cannot agree.

There is abundant authority to support the proposition that the fraudulent joinder of a resident defendant will not defeat the right of a non-resident party to remove the case to the federal court by the filing of a sufficient bond and petition setting forth facts which show such fraudulent joinder. See for example, Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144; Wecker v. National Enameling & Stamping Co., 204 U.S. 176, 27 S.Ct. 184, 51 L.Ed. 430, 9 Ann.Cas. 757; numerous cases are collected in 54 C.J. at p. 282 and in Title 28, U.S.C.A. § 71, note 360. Where, however, the plaintiff has a right to join such resident defendant, fraud or sham cannot be predicated upon a mere showing that the joinder was made for the purpose of preventing removal. If a right of joinder exists, the plaintiff's motive is immaterial. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L.R. 904; McAllister v. Chesapeake & O. R. Co., 243 U.S. 302, 37 S.Ct. 274, 61 L.Ed. 735; Chicago, R. I. & P. R. Co. v. Whiteaker; 239 U.S. 421, 36 S.Ct. 152, 60 L.Ed. 360; Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U.S. 184, 33 S.Ct. 250, 57 L.Ed. 473; Illinois Central R. Co. v. Sheegog, 215 U.S. 308, 30 S.Ct. 101, 54 L.Ed. 208.

Likewise the rule is well settled that in order to effect a removal of the cause to the federal court on this ground the petition must set forth facts which rightly engender such conclusion and compel a finding of fraudulent joinder. A denial of the allegations of the complaint upon which the liability of the resident is rested, or a denial that the complaint states a cause of action against the resident defendant, coupled with a general allegation of fraud is insufficient. Wilson v. Republic Iron & Steel Co., supra; Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 34 S.Ct. 278, 58 L.Ed. 544; Chicago, R. I. & P. R. Co. v. Dowell, 299 U.S. 102, 33 S.Ct. 684, 57 L.Ed. 1090; McNulty v. Atlas Portland Cement Co., Mo.App. 1923, 249 S.W. 730; West Kentucky Coal Co. v. Key, 178 Ky. 220, 198 S.W. 724. The allegations to be sufficient must consist of a showing that the plaintiff has knowingly made false statements of fact in his complaint in order to state a fictitous joint cause of action against a resident defendant for the purpose of defeating the petitioner's right of removal, or that the plaintiff has joined a resident defendant against whom no cause of action is alleged or could be alleged jointly with a non-resident defendant, and against whom the plaintiff could have no reasonable belief as to his liability. Wecker v. National Enameling & Stamping Co., supra; Morris v. E. I. Du Pont De Nemours & Co., 8 Cir., 68 F.2d 788; Richardson v. Southern Idaho Water Power Co., D.C. Idaho, 209 F. 949; Cella, Adler & Tiles v. Brown, 8 Cir., 144 F. 742; Gustafson v. Chicago, R. I. & P. R. Co., C.C., 128 F. 85.

Where such allegations are made in the petition for removal, an issue of fact is raised which may be determined only by the federal court (Chesapeake & Ohio R. Co. v. Cockrell, supra; Stone v. South Carolina, 117 U.S. 430, 6 S.Ct. 799, 29 L.Ed. 962; Queensboro National Bank v. Kelly, D.C., 15 F.2d 395), and after its determination thereon the question of jurisdiction is conclusive against the state court until reversed on appeal. Chesapeake & O. R. Co. v. McCabe, 213 U.S. 207, 29 S.Ct. 430, 53 L.Ed. 765. However, it is well settled that the filing of a bond and petition for removal does not ipso facto divest the state court of jurisdiction. The filing of the petition presents a question of law whether or not, assuming the truth of the facts alleged in the petition for removal, the case is one which may properly be removed, and the question is one which the state court may and should determine for itself. Burlington, C. R. & N. R. Co. v. Dunn, 122 U.S. 513, 7 S.Ct. 1262, 30 L.Ed. 1159; Central Sav. Bank v. Lake, 201 Cal. 438, 257 P. 521. If in fact the cause is not removable a transfer to the federal court does not divest the state court of jurisdiction, and its proceedings at all times are valid. Yankaus v. Feltenstein, 244 U.S. 127, 37 S.Ct. 567, 61 L.Ed. 1036; Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563, 361 S.Ct. 715, 85 L.Ed. 1044.

The general rule is against a holding of fraudulent joinder and where the allegation of such joinder is made on the basis that no cause of action is stated against a resident defendant, any doubt should be resolved in favor of the retention of the cause in the state court. Albi v. Street & Smith Publications, 9 Cir., 140 F.2d 310; Dudley v. Community Public Service Co., 5 Cir., 108 F.2d 119. In the latter case the court states, 108 F.2d at page 123: ‘Though for lack of an exact precedent there may be doubt whether [resident defendant] is legally liable, that would not render his joinder fraudulent. Morris v. E. I. Du Pont [De Nemours &] Co., 8 Cir., 68 F.2d 788; Wells v. Missouri Pac. R. Co., 8 Cir., 87 F.2d 579.’ The nature of plaintiff's cause of action and the theory of law upon which she relies is what he in his pleadings has reasonably and in good faith declared it to be, and where the remedy sought is in doubt, he has the right to have the question passed upon by the state court. Richardson v. Southern Idaho Water Power Co., supra.

Here plaintiffs' complaint is in two counts. The first is based upon the theory of absolute liability for damages resulting from the explosion of a dynamite charge irrespective of negligence. The charging allegation in it being ‘that at said time and place, defendants herein, on property adjacent to plaintiffs' said ranch, which said property was owned, occupied and being used by defendant Catherine Giannone, did cause to be set off and explode a charge of dynamite, * * *’ which proximately

The second cause of action is based upon the same facts but alleges that the blasting was done in a negligent and careless manner. Additionally the second count alleges that the ‘defendants, and each of them, acting through their agents and servants, M. H. Lyle and H. W. Davis, and others whose names are unknown to the plaintiffs, did carelessly, negligently and recklessly cause to be set off and explode an excessive charge of dynamite * * *.’

Bearing in mind the nature of plaintiffs' complaint, the allegations in support thereof and the previously stated rules relative to the removal of causes, it would appear, after a reading of the petition for removal, that the order of the trial court denying the same must be sustained. Illustrative of the insufficiency of the allegations of the petition as a whole to warrant a removal is the charge that the defendant Giannone ‘is in fact a nominal or unnecessary party’ which statement is merely a conclusion of the pleader and wholly ineffectual. Mayer v. Denver, T. & Ft. W. R. Co., C.C., 41 F. 723. The remainder of the pertinent portions of the petition which are subject to comparable infirmities may be summarized as follows:

After generally alleging that the controversy is solely between citizens of different states, the petitioners refer to plaintiffs' second, or negligence, cause of action and allege that the act of setting off the explosive was done by the General Geophysical Company as an independent contractor pursuant to the request of the Ohio Oil Company, that said General Geophyscal Company was neither an agent, servant or employee of the defendant Catherine Giannone, that she exercised no control over the work which they were doing, that the plaintiffs knew such facts and joined her as a party defendant fraudulently and for the purpose of defeating the defendants' right of removal to the federal court, and conclude with the express admission that the acts were done on property owned by the defendant Catherine Giannone as alleged in the complaint, and with her permission and consent although she received no compensation for the right to conduct the survey. Stated otherwise, the petition is but an answer to plaintiffs' complaint denying any agency relationship between the resident and non-resident defendants, additionally charging that the allegations of the complaint with respect to agency were wilfully made with knowledge of their falsity, and that therefore said complaint fails to state a cause of action against the resident defendant. As such the petition falls squarely within the rule as expressed in Chesapeake & O. R. Co. v. Cockrell, supra, and is wholly insufficient to effect a removal to the federal court.

Although she may have received no compensation for the permission given to the company, Mrs. Giannone may have had considerable interest in the survey for the the purpose of discovering oil on her land. And, while it may be doubtful that under such circumstances the owner of land would be liable for damages resulting from miscarriage of a dangerous activity carried on by others on the premises with the mere gratuitous consent of the owner, or that the activity under the facts was such as would bring it within the rule of absolute liability without negligence, such lack of settled legal right should not deprive the plaintiffs of the opportunity to litigate the question in the state court, where there is at least a colorable right and the question is one of state law. Nor will the court in determining whether a probable cause of action has been stated against the resident defendant, inquire whether objection to the complaint might be raised on a special demurrer. Chicago, R. I. & P. R. Co. v. Schwyhart, supra; Richardson v. Southern Idaho Water Power Co., supra. In McGarvey v. Butte Miner Co., D.C., 199 F. 671, 672, the court in granting a motion to remand stated:

‘Where the law is locally unsettled, it is the right of plaintiff to adopt and fairly urge that view thereof that best serves his interests, to join defendants accordingly, and, if the case be not otherwise removable, to secure a trial and determination of the disputed issues, fact and law, upon his theory and in the forum of his choice, the state court. * * * The exercise of the right aforesaid is consistent with good faith, for law is not settled by a litigant's belief or contention, but by the court's determination. This determination is for the trial, and not on remand.

‘On remand, the issue is not what is the law of the case, but is the joinder fraudulent? And the fraud to be alleged and proven to make out fraudulent joinder is essentially that in any case—in general, willful or negligent misstatement of fact.’

Assuming the truth of the facts alleged in the petition for removal and that the plaintiffs knew of the absence of any agency relationship between defendant Catherine Giannone and the non-resident defendants, it does not follow that the plaintiffs' cause of action against the resident defendant on the theory of absolute liability is so wholly devoid of any reasonable basis as to compel a conclusion that the joinder was fraudulent. The defendants by merely alleging willful misstatement of fact as to agency, under the second cause of action, and failure to state a cause of action against Catherine Giannone have failed to raise a decisive issue of fact for the determination of the federal court. Therefore having raised one of law only, there was no error on the part of the trial court in refusing to grant the removal and in retaining the case for trial. Sarah Good Hosiery Mills v. Carolina, C. & O. Ry., 216 N.C. 474, 5 S.E.2d 324, 126 A.L.R. 1499; Hurst v. Southern Ry. Co., 162 N.C. 368, 78 S.E. 434.

On the hearing of the petition for removal in the present case the proceedings for transfer of a previous case brought by George Peterson before his death against these same defendants, and based upon the same facts alleged in the present complaint, were received in evidence. In that case the petition for transfer was granted but the federal court, on motion of the plaintiff, remanded the case to the state court, stating:

‘Two causes of action in tort are jointly alleged in the complaint in each case against both resident and non-resident defendants. Both causes of action pleaded in the respective complaints are, we believe, supportable upon principles of decisions of the California Appellate Courts. Green v. General Petroleum Corporation, 205 Cal. 328, 270 P. 952, 60 A.L.R. 475; McKenna v. Pacific Electric Ry. Co., 104 Cal.App. 538, 286 P. 445.

‘No separable controversy appears from the record, and where, as here, there is joint liability alleged, the plaintiff has a right to enforce it in an appropriate state forum, and thereby prevent removal by a non-resident defendant who prefers the Federal Court. Chicago, B. & Q. R. Co. v. Willard, 220 U.S. 413, 31 S.Ct. 430, 55 L.Ed. 521; Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U.S. 184, 33 S.Ct. 250, 57 L.Ed. 473; Young v. Standard Oil Co., D.C.Cal., 35 F.2d 551.

‘But even if there were room for doubt as to the good faith of plaintiff in joining the resident defendant in the actions under consideration, the causes respectively should be retained in the State Court. Albi v. Street & Smith Publications Inc., et al, 9 Cir., 140 F.2d 310. See, also Morris v. E. I. Du Pont De Nemours & Co., 8 Cir., 68 F.2d 788, 789.’

The plaintiffs urge the decision therein as res judicata or estoppel by judgment on the issue of removability in the present case. Respondents in opposition to this contention take the position that the former decision cannot be res judicata herein for the reason that the parties are different, the former case having been one commenced by George Peterson, now deceased, to recover damages for personal injuries, whereas the present suit is an action for wrongful death brought by the heirs of George Peterson. The decision in Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892, 895, is contrary to appellant's position on this point. The necessary elements of a valid plea of res judicata are there set forth in a concise and thorough statement of the law. Under the authority of that case, it is only necessary that ‘the party against whom the plea is asserted [was] a party or in privity with a party to the prior adjudication.’

The rule thus established by the Supreme Court is in accord with the trend of decisions discarding the mutuality rule as a necessary element of a plea of res judicata. See the dissenting opinion of Clark, J., in Riordan v. Ferguson, 2 Cir., 147 F.2d 983; Coca-Cola Co. v. Pepsi-Cola Co., 36 Del. 124, 172 A. 260; Lanning v. Erie R. Co., 265 App.Div. 576, 40 N.Y.S.2d 404, affirmed, 291 N.Y. 688, 52 N.E.2d 587; 57 Harvard Law Rev. 98.

That the decision of a federal court remanding a case to the state court for lack of facts establishing a removable cause is res judicata in a subsequent case involving the same parties and pleadings based upon the same facts was decided in State v. Superior Court for Kitsap County, 194 Wash. 7, 76 P.2d 990.

Inasmuch as the appellants were parties to the prior action and therein raised the issue of the removability of the cause to the federal court, which issue was decided against them on the ground that a reasonable basis existed for the joining of Catherine Giannone as a party defendant, such facts are sufficient to satisfy the requirement of privity in support of the plea of res judicata or estoppel by judgment.

The second point raised by appellants as a ground for reversal is that there is no proof of negligence on the part of the defendants, the contention being that the use of the explosives in the preparation of the slush pits was done with due care and in conformity with the usual and customary practice in the business.

The question of whether or not the blasting was negligently done was for the jury and where the evidence is in conflict an appellate court will not substitute its judgment for that of the jury or the trial judge. Wills v. J. J. Newberry Co., 43 Cal.App.2d 595, 111 P.2d 346; Wattson v. Dillon, 6 Cal.2d 33, 56 P.2d 220.

There is sufficient evidence in the record before this court to support the position of the respondents that the reason for using the explosive charge to dig these two small holes was the defendants' desire to hasten the completion of the survey before irrigation was started on the land; that the use of such drastic methods was unnecessary and that the pits could have been made easily with ordinary digging tools. The blast occurred in an old alfalfa field used for pasture and which had been leveled and irrigated. An agent of the Geophysical Company testified that out of some four or five hundred slush pits dug in this area only three or four had been made by blasting, and that the common practice was to use a pick and shovel. The jury was warranted in concluding that the method used and the resulting loud report were not a necessary accompaniment of the defendants' work.

The dynamite charge, according to the defendant Lyle, was set off in what he observed to be a farming area and which he presumed was populated with farm animals. It would seem that under these circumstances a jury might well infere that an ordinarily prudent person would foresee that a loud and unusual noise in an area where farm animals were used would be likely to frighten the animals on nearby property. Under such circumstances causing of an unnecessary noise without warning is negligent with respect to those who are in a position of peril and whose presence is known or should be anticipated by the actor. The fact that the direct cause of the injury was due to the action of the horse rather than the physical force of the explosion does not prevent the imposition of liability upon the one whose negligent act in turn produced the frightened condition of the animal. A primary cause may be the proximate cause of an injury though it operates through successive agencies to effect the final result. Merrill v. Los Angeles Gas & Electric Co., 158 Cal. 499, 111 P. 534, 139 Am.St.Rep. 134, 31 L.R.A.,N.S., 559; Dowd v. Atlas Taxicab & Auto Service Co., 69 Cal.App. 9, 230 P. 958; Terry v. Peterson, 97 Cal.App. 160, 275 P. 484. Accordingly, cases have arisen in other jurisdictions wherein liability has been imposed for injuries occurring in a like manner as in the present situation. Klein v. Phelps Lumber Co., 75 Wash. 500, 135 P. 226; Bassett v. Moberly Paving Brick Co., 219 Mo.App. 81, 268 S.W. 645; Missouri Iron & Metal Co. v. Cartwright, Tex.Civ.App., 207 S.W. 397; City of Joliet v. Seward, 86 Ill. 402, 29 Am.Rep. 35.

The appellant Lyle states that ‘no case, under any theory, was made out against [him], and a reversal must follow as to him irrespective of any other point in the case.’ There is no citation of authority in the short paragraph of the brief containing this bald statement and no reference to the transcript. It is not the duty of this court to search the record or the authorities to find a basis upon which to reverse the judgment as to this defendant. However, in the transcript of the evidence taken at the trial of the case, there are sufficient facts from which the jury could reasonably conclude that the defendant Lyle, as surveyor of the party and the person who arranged with the landowners for permission to conduct the survey, was responsible for the general carrying out of the operation and controlled the conduct of the work.

The appellants further contend that their liability, if any, must be based on proof of negligence, and that the case should not have been submitted to the jury on the theory of absolute liability allowing them to find for the plaintiffs in the absence of any negligence. Although the pleadings set forth a cause of action based on a theory of strict liability for the damage resulting from the blasting, under the instructions the case was not submitted to the jury on this theory but solely on the issue of negligence. The jury was instructed that in order to return a verdict for the plaintiffs it must find that the defendants were negligent and that such negligence was the proximate cause of the accident which resulted in the death of Mr. Peterson. Instructions on the theory of absolute liability were requested by the plaintiffs but were refused on the ground that they were misleading. The only instruction given of which the appellants complain as permitting the jury to find for the plaintiffs in the absence of negligence, is as follows:

‘Section 3514 of the Civil Code of the State of California provides: ‘One must so use his own rights as not to infringe upon the rights of another.’ One who carries on blasting operations must do so in such a manner as not to infringe upon the rights of another.'

It is difficult to see how the more reading of this code section and a paraphase of it could have been taken by the jury as permitting them to find for the plaintiffs in the absence of negligence when they were explicitly and repeatedly instructed to the contrary. There are no words of direction but merely an observation on the duty of all persons to respect the rights of others, a principle embodied in our statutory law.

Inasmuch as the verdict and the judgment are supported by the evidence upon the theory of negligence, and since this was the only theory upon which the case was submitted to the jujry, it is unnecessary to pass upon the applicability of the doctrine of absolute liability as applied to the liability of these defendants.

The appellants next assign as error the trial court's refusal to excuse a juror, Marie Summers, which it is claimed resulted in the denial of a fair trial. During the time of the voir dire examination counsel for the defendant Giannone, and counsel for defendant General Geophysical Company, discussed the propriety of exercising a peremptory challenge as to this juror and it was agreed among them that she should be excused. Thereafter, it appears that Mrs. Summers expressed a desire to remain on the jury, which statement was communicated to Mr. Germino, counsel for defendant Giannone, by a party or parties unknown. Mr. Germino then told the other counsel that he would not join in a peremptory challenge against her, but that if the juror was excused he would remain silent unless asked if he desired to join in the challenge. Counsel were thus fully aware that they would not be able to excuse this juror if the question of joining in the challenge were raised. When counsel later excused Mrs. Summers, Mr. Germino, upon inquiry of the court, refused to join.

It is claimed by the appellants that this situation created a prejudice in the mind of the juror against counsel who had expressed a desire to remove her from the jury panel against her wishes, and that the communication by the juror of her desire to remain on the jury indicated prejudice.

It is clear that the court could not excuse the juror on the exercise of a peremptory challenge by one of defendants unless all defendants joined in the challenge. C.C.P. section 601. The language of the section is mandatory that ‘where there are several parties on either side, they must join in the challenge before it can be made.’ Switzler v. Atchison, T. & S. F. Ry. Co., 104 Cal.App. 138, 285 P. 918.

The appellants were not entitled to have Mrs. Summers excused except upon a showing that she was prejudiced, or otherwise incompetent or disqualified to act as a juror. Nothing in the record gives color to a suspicion that Mrs. Summers was prejudiced or had expressed any prejudice with respect to the parties. She merely stated to some person, unknown, that she wished to be on the jury. Why she desired to be on the jury in this particular case is not shown. A desire to sit as a juror, or an interest in a particular case, is in no way indicative of a pre-existing opinion upon the merits of the cause of action. The appellants were not entitled to have the case tried before any particular jurors. 15 Cal.Jur. 324, and cases there cited.

Any irregularity which occurred by the challenge of this juror in her presence and the subsequent refusal of the other defendant to join therein was brought about by the appellants' own acts with foreknowledge of the consequences which would ensue. The appellants cannot complain of any error or prejudicial situation in which they were placed by their own conduct. Jentick v. Pacific Gas & Electric Co., 18 Cal.2d 117, 114 P.2d 343; Reinders v. Olsen, 60 Cal.App. 764, 214 P. 268; Dougherty v. Ellingson, 97 Cal.App. 87, 275 P. 456.

Further error is alleged in the trial court's admission of evidence, the first of which consisted of testimony by H. W. Davis, an employee of defendant General Geophysical Company and others concerning statements made by the said H. W. Davis immediately after the accident and before the ambulance had arrived to pick up the decedent. The lapse of time between the accident and the making of the statements was approximately thirty minutes. The witness Davis, called under section 2055 of the Code of Civil Procedure, was a party to the action although not served with process, and was by the answer of defendant General Geophysical Company, admittedly their agent and employee. The statements testified to consisted of words addressed to Mrs. Peterson to the effect that she was not to worry; that the company would take care of everything.

The contention that the statement was made too long after the explosion to be admissible is without merit. There is evidence that Mr. Davis, upon hearing of the injury to Mr. Peterson, immediately went over to the scene of the accident and there made the statement in question. It is now settled in this state that spontaneous declarations of an agent are admissible against the principal where made under stress of an exciting cause, and that the element of time is no longer as material as under the former rule. Showalter v. Western Pacific Railroad Co., 16 Cal.2d 460, 106 P.2d 895; Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 160 P.2d 21. In the Showalter case the court stated at page 467 of 16 Cal.2d, at page 899 of 106 P.2d:

‘The cases cited hereinabove to the contrary, holding the view that the admissibility of such statements is dependent on proximity of time to the principal event or on the continuation of the occurrence to which they relate, are as a consequence hereby overruled.’

Evidence of such statements may be introduced by the testimony of third persons who heard the statements, and is an exception to the hearsay rule. Lane v. Pacific Greyhound Lines, supra. The contention of appellants that the statement was only a general assumption of liability on behalf of the company and did not relate to factual circumstances of the accident, goes to the weight of the evidence rather than to the admissibility. The defendants at the trial took the position that the injury to the decedent was not caused by the explosion but that the team of horses had started to run away before the explosion. The statement of the agent was therefore admissible for the purpose of showing his belief as to the cause of the accident, and as a declaration against interest made by an agent within the res gestate during the course of his employment. If the statement had but slight probative value it must be assumed that the jury composed of rational persons gave to it the weight to which it was entitled.

The trial court also admitted, over the objection of appellants, evidence relative to the amount of powder in a shotgun shell. Witnesses for the defendants testified that the noise produced by the simultaneous explosion of the two quarter pound charges was about the same as that of a shotgun. There was also direct testimony by residents in the area that the noise was such as had never been heard in the area before and was mistaken for a bomb. To rebut the contention that the sound was comparable to that of a shotgun, the plaintiffs introduced in evidence the amount of powder in a shell as compared to the quarter pound explosives for the purpose of showing the comparative strength of the various powders. The conclusions and inferences to be drawn were left to the jury. The appellants cite no authority in support of their contention that the evidence was irrelevant as applied to the facts of this case, and it is difficult to see how the appellants were prejudiced by the introduction of the exhibit for the purpose stated.

Soil samples also were introduced to show the condition of the earth in the field where the explosion took place and for the purpose of showing the lack of necessity for using such methods to dig the slush pits. The samples were taken from a point approximately forty or fifty feet from the point where the pits were dug, but the witness who identified the samples which he had taken stated that he observed the soil to be the same as that where the slush pits were blasted. The reason given for taking the samples at a distance from the slush pits was that the witness did not at that time know exactly where the holes had been blasted. The affidavit of Mario Ferro on motion for a new trial, supports this fact of similarity, wherein it is stated that ‘I find that the soil in these exhibits corresponds exactly to and is entirely similar to that which I now find at the very place where this explosion occurred.’ It is of course true as stated by the appellants that in order for real evidence of the nature of that introduced here to be admissible it must be shown that the condition or quality of the other thing is the same. Story v. Nidiffer, 146 Cal. 549, 80 P. 692; Palladine v. Imperial Valley Farm Lands Ass'n, 65 Cal.App. 727, 225 P. 291; Brown v. Lemon Cove Ditch Co., 36 Cal.App. 94, 171 P. 705. However it clearly appears from the record that such similarity was established and that no error was committed in allowing the samples to be introduced.

Error also is alleged to have resulted from the court's admission in evidence of hospital and doctor bills for the care of the decedent after the accident and prior to his death. The question of whether or not medical expenses incurred in an effort to save the life of the decedent may be recovered as an element of damages in an action for wrongful death appears to be unsettled in this state. There is dictum in three cases to the effect that such expenses are not recoverable. Salmon v. Rathjens, 152 Cal. 290, 92 P. 733; Fitzgerald v. Quinn, 131 Cal.App. 457, 21 P.2d 656; Nitta v. Haslam, 138 Cal.App. 736, 33 P.2d 678. However, in the case of Cleary v. City R. Co., 76 Cal. 240, 18 P. 269, the parents were allowed to recover items of medical expenses as damages in an action for the wrongful death of their minor child. The distinction to be made may be that such items are recoverable where the plaintiff or some of the plaintiffs are liable for the payment of such expenses, but the court in Nitta v. Haslam, supra, failed to make such a distinction. In that case one of the parties plaintiff was the surviving husband of the decedent. Medical expenses were pleaded as special damages. The appellate court held that although not recoverable in an action for wrongful death the surviviing spouse might maintain a separate action for them, and that the issues of law and fact involved in such an action would be the same as in the action for wrongful death, having arisen out of the same transaction, and could be joined therewith under section 378 of the Code of Civil Procedure. It was held that the allegation of such damages therefore constituted the statement of a separate cause of action, which should have been separately stated under the provisions of section 427 of the Code of Civil Procedure, but since there had been no special demurrer or motion to strike, the question of misjoinder or failure to separately state the two causes of action could not be raised for the first time on appeal, and the inclusion of such items in the judgment was proper. The situation presented in the instant case is on all fours with that in Nitta v. Haslam, supra, and on the authority of that decision the holding here must be that there was no reversible error in admitting evidence of medical and hospital expenses in support of the allegations of special damages contained in the complaint.

It is further sought by appellants to show error in giving and refusing instructions by the trial court. The following given instruction is alleged to have been erroneous and prejudicial:

‘I charge you that if you find that the death of George Peterson was caused by the frightening of his horses without any fault or negligence on his part and you find that the defendants by negligent acts caused the frightening of said animals, then the proximate cause of the fatal injuries to said George Peterson was the negligent acts of defendants which so frightened the horses and your verdict must be for the plaintiffs.’

The unsoundness of the instruction is claimed to exist in that the jury was instructed that if one of the causes of the decedent's death was the frightening of his horses and if some negligent act of the defendant was one of the causes of the frightening of the animals then they must find for the plaintiffs.

All of the instructions must be read together for the purpose of ascertaining whether or not as a whole they properly conveyed to the jury the law of the case. Graham v. Griffin, 66 Cal.App.2d 116, 151 P.2d 879; Westover v. City of Los Angeles, 20 Cal.2d 635, 128 P.2d 350. The language of a particular instruction cannot be strained so as to present a meaning other than the jury must reasonably have attached to it. In the present case the jury was fully instructed on the law relative to proximate cause and no rational interpretation of the above quoted instruction could be made other than that the use of the verb ‘caused’ meant ‘proximately caused.’ An appellate court is not required to reverse a judgment for a questionable error in the giving of an isolated instruction in the absence of a showing that the miscarriage of justice has thereby resulted. Cal.Const. Art. VI, sec. 4 1/212; Shuey v. Asbury, 5 Cal.2d 712, 55 P.2d 1160; Church v. Payne, 36 Cal.App.2d 382, 97 P.2d 819; Haney v. Takakura, 2 Cal.App.2d 1, 37 P.2d 170, 38 P.2d 160.

The trial court refused to give instructions offered by the appellants on unavoidable accident. The case was tried and submitted to the jury on the theory that each party was negligent. The question of unavoidable accident was outside the issues and an instruction thereon would only have been confusing to the jury and of no possible aid to them. It would be obvious to them that if they should find that the accident occurred without the fault of either party, there would be no liability, and there could be no error in refusing to give them a formal statement of such a self-evident truth. Stein v. United Railroads, 159 Cal. 368, 113 P. 663; Fraser v. Stellinger, 52 Cal.App.2d 564, 126 P.2d 653.

It is unnecessary to set forth all of the instructions which were offered by the appellants and refused. They were either cumulative of instructions given, misleading, or were, like that on unavoidable accident, outside the issues of the case. There was no error in refusing such instructions.

Finally, appellants contend that the damages awarded were excessive, and that the jury in returning a verdict for $40,000.00, must necessarily have been swayed by passion or prejudice.

At the time of his death George Peterson was sixty-four years of age and had a life expectancy of 11.67 years. He was in robust health, and actively engaged in the operation of his farm which was producing an annual income of $6,000. His wife was of the same age and had a similar life expectancy. The two children of the decedent were adults of the ages of 34 and 39. In addition to the element of loss of support for the wife and the special damages, the plaintiffs were entitled to some award for the loss of comfort and society of their husband and father. The amount to be allotted to such portion of the damages sustained by the death of Mr. Peterson cannot be ascertained with any degree of mathematical certainty. All of the considerations which go into the determination of the proper amount of damages are for the jury in the first instance, and for the trial judge on a motion for a new trial. Appellate courts of this state have repeatedly held that an award cannot be disturbed except where at first blush the amount clearly shows itself to be the result of passion or prejudice. Purcell v. Goldberg, 34 Cal.App.2d 344, 93 P.2d 578; Williams v. Layne, 53 Cal.App.2d 81, 127 P.2d 582; Nitta v. Haslam, supra. The mere fact that an appellate court might have awarded a smaller verdict is insufficient to warrant a reversal. Bennett v. Hardy, 108 Cal.App. 473, 291 P. 903.

Amounts of similar size have been awarded in actions for wrongful death (Krause v. Rarity, 210 Cal. 644, 293 P. 62, 77 A.L.R. 1327; Weaver v. Shell Co., 34 Cal.App.2d 713, 94 P.2d 364), a fact which an appellate court may consider in its determination of the reasonableness of the figure (Power v. California Street Cable R. Co., 52 Cal.App.2d 289, 126 P.2d 4), together with the fact that the purchasing power of the dollar has substantially decreased in recent years. Lasater v. Oakland Scavenger Co., 71 Cal.App.2d 217, 162 P.2d 486. With these considerations in mind it cannot be said as a matter of law that the verdict is so grossly excessive as to show passion or prejudice on the part of the jury.

The judgment appealed from is affirmed.

I dissent. I am convinced the trial court erred in denying defendants' petition to remove the cause to the United States District Court. The majority opinion supports the denial of that motion on the ground that the petition ‘raised one [question] of law only.’ I think the essential question was one of fact and not merely of law. The petition for removal was filed under Section 28 of the Federal Judicial Code, 28 U.S.C.A. § 71, on the ground that all defendants, except Catherine Giannone, were residents of states other than California, and that she was not a proper party defendant, and not liable for the injuries which resulted in the death of George Peterson. No answer or counter-affidavit was filed opposing that petition. The question of whether she was a proper party, or liable for the accident, depends upon a determination of the facts which appear in the petition and the complaint. No fact is alleged from which it may be determined, as a matter of law, or otherwise, that she was a proper party or liable for the results of the accident. The complaint alleges no fact from which it may be assumed she was a proper party, or liable therefor. The verified petition specifically alleges that she had no knowledge or control over the acts of the General Geophysical Company whose agents exploded the dynamite cap which ultimately caused the death of Mr. Peterson. It is alleged that she was merely the owner of the land upon which the explosion occurred, and that she had, without consideration, gratuitously permitted that company to explore the land for prospective presence of oil; that she did not participate therein and took no part in those proceedings; that she had no control or authority over the company or its agents, and was not present, and had no right to direct their operations, or to advise them, either as a principal, or agent, or otherwise; that the operations were conducted solely by said company as an independent contractor of the Ohio Oil Company, and that the said Catherine Giannone was made a party defendant to confer jurisdiction on the California state court and to defeat a transfer of the cause to the Federal court. Those facts should be accepted as true for the reason that no answer or counter-affidavit was filed to refute them.

Under the uncontradicted facts alleged in the petition, since all other defendants were residents of other states, a proper case for transfer to the Federal court appears to be conclusive. The authorities appear to be unanimous to the effect that when a cause for removal is alleged in the petition the trial court has no discretion to pass upon the facts, but must certify the record to the United States court, which has the sole province to determine the merits of the application. Evidently the trial court came to the conclusion that Catherine Giannone was not a proper party, for, after the presence of her name, as a party defendant, had served its purpose of retaining jurisdiction in the state court, on motion a nonsuit was granted in her favor.

It is true that in another case previously brought by George Peterson for injuries received as a result of that same explosion, on a similar petition for removal, the cause was transferred to the United States District Court, and subsequently remanded. But that was another suit between different parties, and is not res judicata of this petition. The procedure in that case was proper. It confirms the rule previously referred to, that the Federal court has the sole province of passing upon the facts involved in a petition for removal to that court. That is exactly what should have been done in the present case. The question of the Federal court's authority to remand the cause does not authorize the state court to deprive that court of exercising its province, by denying the motion.

When the proceedings on petition therefor disclose a removable case for diversity of residence of parties defendant all subsequent proceedings in the state court become void. Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563, 61 S.Ct. 715, 85 L.Ed. 1044. When the petition for removal is denied by the state court the applicant therefor may preserve his rights by excepting to the order, which entitles him to a review of its validity on appeal from a subsequent judgment against him, or he may perfect the record on removal and ask the Federal court to assume jurisdiction. Petitioner may elect either course of procedure. He does not waive his right of removal by participating in a subsequent trial in the state court. Metropolitan Casualty Ins. Co. v. Stevens, supra; 45 Am.Jur. p. 919, sec. 155. In this case the petitioners excepted to the order denying their motion for removal and now urge the error of that order on appeal from the judgment which was rendered against them.

Upon petition for removal of a cause from a state court to the United States court, the inquiry on the part of the state court is merely one of law to determine whether the record, on its face, discloses a removable cause. The state court is bound by the allegations of fact disclosed by the petition and record on that motion. The allegations of the petition must be accepted as true. The state court may not pass upon issues of fact involved therein. The questions of fact as to the actual residence of parties or alleged bad faith in making defendants parties to the suit to retain jurisdiction in the state court, are solely for the determination of the Federal court. General allegations of negligence contained in the complaint will not suffice to overcome specific allegations to the contrary contained in the petition for removal. Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 34 S.Ct. 278, 58 L.Ed. 544; Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144; State of Ohio ex rel. Seney v. Swift & Co., 6 Cir., 270 F. 141; Donovan v. Wells, Fargo & Co., 8 Cir., 169 F. 363, 22 L.R.A.,N.S., 1250; Harrington v. Great Northern Ry. Co., C.C., 169 F. 714; Lane Bros. Co. v. Rickard, 135 Ga. 650, 70 S.E. 565, Ann.Cas. 1912A, 234; 45 Am. Jur. 917–918, secs. 152–154; 54 C.J. 331, sec. 253; 28 U.S.C.A. § 71, and cases cited.

In 45 American Jurisprudence, at page 918, section 154, it is said in that regard:

‘Issues of fact arising on an application for removal are to be decided by the Federal court to which the cause is removed. The state court must confine itself to the record, and must accept as true the allegations of the petition for removal; it cannot examine or determine fact issues arising thereon, whether they relate to the amount in controversy, the existence of a separable controversy, diversity of citizenship, fraudulent joinder, or other matters.’

The foregoing text is supported by numerous authorities.

Likewise it is said in 54 Corpus Juris, at page 333, section 253:

‘No issue of fact arising upon the petition for removal or the record as to the removability of the cause can be tried in the state court, but any such issue may be determined only by the federal courts to which the cause is sought to be removed.’

In the last mentioned section it is further stated that:

‘* * * Although it is only where the nonremovability of the cause clearly appears on the face of the petition that a state court is at liberty to deny a removal, and in determining that no removal has been effectuated the court acts at its peril as to the efficacy and validity of its subsequent proceedings. If, on the other hand, upon the face of the petition for removal and the record the cause appears to be removable, and a sufficient bond is filed, where that is requisite, it is the duty of the state court to recognize the removal and proceed no further.’ (Italics added.)

The mere recital in the complaint that the defendants caused the alleged acts of negligence to be performed, without specifying facts or acts of the resident defendant who is alleged in the petition to have been wrongfully made a party to defeat the jurisdiction of the United States court, will not rebut adequate and specific allegations of the petition which otherwise show a removable cause. Shaver v. Pacific Coast Condensed Milk Co., C.C., 185 F. 316; Reinartson v. Chicago Great Western Ry. Co., C.C., 174 F. 707; Chesapeake & Ohio Ry. Co. v. Cockrell, supra [232 U.S. 146, 34 S.Ct. 279]. The state court may not weigh the evidence. In the case last cited, suit was brought in a state court in Kentucky, against the railroad company and the engineer and fireman of a locomotive engine by the representative of the estate of a man who was struck by the engine and killed. In that case the complaint specifically alleged the particular acts and omissions of the engineer and fireman upon which plaintiff relied to show their joint liability. The residence of the railroad company was in Virginia. It filed a petition to remove the case to the United States court on the ground of diversity of residence. The petition for removal failed to affirmatively allege facts showing that the cause was removable. All that it alleged was that the specific acts of asserted negligence of the engineer and fireman which were stated in the complaint, were ‘false and untrue,’ and that they were fraudulently made parties defendant for the purpose of defeating the jurisdiction of the United States court. The trial court denied the petition for removal, and proceeded to try the cause on its merits, and rendered judgment against the railroad company. That judgment was affirmed by the reviewing court of Kentucky, which held that, ‘The questions of fact arising upon the petition were open to examination and determination in the state court.’ The Supreme Court of the United States said in that regard:

‘In so holding the court of appeals fell into manifest error, for it is thoroughly settled that issues of fact arising upon a petition for removal are to be determined in the Federal court, and that the state court, for the purpose of determining for itself whether it will surrender jurisdiction, must accept as true the allegations of fact in such petition.’ (Citing many authorities.)

But the United States Supreme Court held that because the petition for removal failed to affirmatively allege any facts showing a removable case, the state court was justified in retaining jurisdiction, and the judgment was therefore affirmed. It said:

‘In this case had the petition contained a sufficient showing of a fraudulent joinder, accompanied as it was by a proper bond, the state court would have been in duty bound to give effect to the petition and surrender jurisdiction, leaving any issue of fact arising upon the petition to the decision of the Federal court.’

Based upon the foregoing authorities, I see no escape from the inevitable conclusion in this case that, since the petition for removal of the cause adequately and specifically alleges a case which is properly removable to the United States District Court on the ground of diversity of residence of essential defendants, the trial court erred in denying the petition and proceeding to trial on the merits.

But the respondents claim that the remanding of the former action became res judicata and estops the defendants in this suit from removing the cause to the Federal court. I think not. The two actions were entirely separate and distinct, although they were based on the same transaction. They were not between the same parties. Upon the death of George Peterson, the plaintiff in the first suit, that cause abated since it was a suit for personal injuries sustained as the result of alleged tort of the defendants. Norton v. City of Pomona, 5 Cal.2d 54, 62, 53 P.2d 952; Munchiando v. Bach, 203 Cal. 457, 264 P. 762; 1 Cal.Jur. 71, sec. 41; 1 C.J.S., Abatement and Revival, § 144, page 197; 1 Am.Jur. 71, sec. 84. Section 385 of the Code of Civil Procedure is not applicable to this case. That section merely provides that an action does not abate ‘if the cause of action survive or continue.’ In this case the cause could not survive or continue because it was based on tort and demands damages only for personal injuries sustained on account of alleged negligence. Moreover, there was no order of court permitting it to be continued in the names of the representatives of the deceased, as that section provides with respect to cases which may survive the death of a party. The prior action in which the cause was remanded to the state court was abandoned upon the death of plaintiff. It was not tried or determined on its merits. Regarding the application of the doctrine of res judicata, the Supreme Court said in Bernhard v. Bank of America, 19 Cal.2d 807, at page 813, 122 P.2d 892, at page 895:

‘In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?’ (Citing authorities.)

I conclude that the order remanding the prior suit of George Peterson to the state court is not res judicata of the right of defendants in this separate suit to remove the cause to the federal court. The order became functus officio when the prior cause terminated upon the death of the plaintiff. That case was never tried on its merits, nor were the parties to the two actions the same. For the same reason I am convinced the defendants were not barred from petitioning to remove the present action to the federal court on the ground of diversity of residence or the joining of a party defendant for the purpose of defeating the jurisdiction of the federal court.

The case of Pratt v. Vaughan, 2 Cal.App.2d 722, 38 P.2d 799, 800, upon which respondents rely, is not in conflict with what I have said on that issue. That was a suit for property damages, as distinguished from one for personal injuries sustained by the plaintiff, growing out of an automobile collision. Plaintiff brought suit in the municipal court for damages to his automobile, which was tried by that court and determined on its merits against plaintiff. That judgment became final. Thereafter the same plaintiff brought suit in the Superior Court against the same defendant upon the same transaction for personal injuries growing out of that automobile collision. The answer denied the allegations of the complaint and affirmatively pleaded the estoppel of the former judgment as res judicata. On trial the Superior Court determined that the prior final judgment of the municipal court ‘conclusively settled the rights of the parties thereto,’ and rendered judgment for the defendant. On appeal that judgment was affirmed. In that case there was no question regarding the abatement of the former action on account of the death of plaintiff. The former suit was tried and determined on its merits. The court merely held that plaintiff having brought suit for property damages growing out of an automobile collision, and having failed to ask for damages for personal injuries on that account, was barred from maintaining a subsequent suit for personal injuries on the well-established doctrine that the determination of the necessary elements of negligence and contributory negligence by a final judgment on the merits involving the same transaction bars the plaintiff from again litigating those issues. Koehler v. Holt Mfg. Co., 146 Cal. 335, 80 P. 73.

In the cases of Clarke v. Mathewson, 12 Pet. 164, 37 U.S. 164, 9 L.Ed. 1041, and Dunn v. Clarke, 8 Pet. 1, 33 U.S. 1, 8 L.Ed. 845, both of which were suits in equity and not based on torts, it was held that since the suits did not abate upon the deaths of parties litigant and the representatives of the decedents were duly substituted in the same actions, the federal courts were authorized by federal statute to try and determine the issues contained therein. In Clarke v. Mathewson, supra, it is said:

‘The death of either party pending the suit does not, where the cause of action survives, amount to a determination of the suit. It might in suits at common law, upon the mere principles of that law, have produced an abatement of the suit, which would have destroyed it. But in courts of equity, an abatement of the suit by the death of a party has always been held to have a different effect; for such abatement amounts to a mere suspension, and not to a determination of the suit. It may again be put in motion by a bill of revivor, and the proceedings being revived, the cause proceeds to its regular determination as an original bill. The bill of revivor is not the commencement of a new suit, but is the mere continuation of the old suit.’ (Italics added.)

The cases last cited are distinguishable from the present action on that ground. The cause were revived and continued by substitution of the representatives of the estates of deceased parties as required by statute. In the present case the former cause abated upon death of the plaintiff. Since that suit was founded on tort for personal injuries received as the result of alleged negligence, it could not survive the death of the plaintiff. An entirely new cause of action was commenced. The order remanding the previous case to the state court therefore did not preclude the defendants from making a motion on petition for removal of this cause.

I am therefore impelled to hold that the trial court erred in denying defendants' motion for removal.

PEEK, Justice.

ADAMS, P. J., concurs.