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

Dorothy BUCKLEY and Bruce Allen Buckley, a minor, by his guardian and litem, Dorothy Buckley, Plaintiffs and Appellants, v. Fred D. CHADWICK, Defendant and Respondent.

Civ. 20032.

Decided: September 28, 1954

Russell H. Pray, Long Beach, Samuel P. Block, Compton, and Eric A. Rose, Long Beach, for appellants. Parker, Stanbury, Reese & McGee, Wm. C. Wetherbee, Los Angeles, for respondent.

Allen Buckley and B. F. McDonald entered into a partnership on March 18, 1951, to furnish and deliver 5,000 years of dirt to a construction site for a third party. Shortly thereafter the partners rented from the defendant Chadwick a crane without an operator or oiler on an oral rental contract requiring that the partnership provide an experienced oiler and that McDonald opperate the crane. McDonald took delivery of the vehicle on Chadwick's premises and transported it to a dirt pit where it was used as a drag line crane for the loading of two dump trucks owned by Buckley and other trucks which the partnership had rented.

On the morning of April 19, 1951, McDonald was operating the crane, filling the bucket of the crane, raising the bucket to the top of the boom, and depositing the dirt in a dump truck being driven by Buckley by swinging the boom and load over the bed of the dump truck, then lowering the bucket and opening it to release the load into the bed of the truck. The truck had pulled up parallel to and slightly ahead of the cab of the crane. On this disastrous occasion, while McDonald was swinging the bucket toward the bed of the dump truck, Buckley left the cab of the truck and was standing on the left running board in such position that the bucket and boom hovered over his head. Suddenly the boom cable broke with a snap and the boom descended, striking him on the head and killing him instantly. Subsequent inspection revealed that the cable broke inside the cab at a place on the cable that was rolled on and off the drum as the boom was raised and lowered in operation. The crane had been in the sole and exclusive possession of the partnership for the six days preceding the accident. McDonald testified that during that period he had raised and lowered the boom only once each day and that except for those occasions it had not been operated.

There was a conflict in expert testimony regarding the damage to the cable. McDonald testified that in his twenty-seven years' experience as a crane operator he had never had a cable break in this manner but that he had heard of such happening; that the crane on the job in this case was operated under normal conditions as a drag line crane, that he examined the cable at the place where it gave way and that it was worn, strands were flattened out and broken and that such wear could not have been caused during the few minutes in which he operated the boom hoist cable by merely raising it from the ground to a 45 degree angle. McDonald further testified that he had last operated the boom hoist cable about an hour before the accident and that the oiler had at that time oiled the shives and then it was hoisted back into the air. He also testified that ordinarily if a strand is broken in view either he or the oiler would have observed it in the course of their duties. An expert witness called by the plaintiff, Karl Taroldsen, a man who had been engaged in the rigging business for twenty-five years, expressed the opinion that the cable ‘was just worn out’, that wear was shown at many places other than that which gave way, that the wearing could not have been caused in merely six days of operation, that the cable had been worn out ‘probably about 200 working hours ago’.

The defendant Chadwick and Franklin Dixon, his mechanic, testified that they had inspected the boom cable closely before it was rented to Buckley and McDonald and that it was in good condition. Herbert N. Worcester, called as an expert witness for the defendant, testified that he had been chief engineer for a wire rope company for ten years, that he tested a part of the boom hoist cable involved here and found no broken wires indicating fatigue failure resulting in lowering of the tensile strength of the rope; he examined and tested the weakest portion of the cable involved and found that it tested above the minimum safety requirements set by the factory and had five times the strength needed to meet a maximum load; the ends of the broken cable at the point where the break occurred showed abrasive damage resulting from faulty winding and unwinding of the boom cable and that if McDonald and the oiler had allowed the cable to cross-wind or overlap on the drum during the six days they were using the crane, enough damage could have been caused in one second of use under strain to have caused the cable to break. Edgar C. Hanks, a crane expert called by the defendant, testified that the oiler should have checked the cable each day and reported any wear or defect.

As a result of Buckley's death, his widow and minor son brought suit against Chadwick for wrongful death charging that the rented crane was latently defective due to negligent maintenance, and in another cause of action that the defendant breached a warranty of fitness, safety and suitability. Prior to the time of trial the widow, who has since remarried, waived any right to recovery in favor of her son, leaving the latter as the sole plaintiff. A trial by jury resulted in a verdict for the defendant, from which judgment this appeal is taken.

The appellant contends (1) that the evidence was insufficient to justify the verdict; (2) that the court erroneously instructed the jury that the oiler used in connection with the crane operation was an agent of the partnership; (3) that instructions relating to imputed negligence were improper since that defense was not pleaded; (4) that the trial court erred in instructing the jury as a matter of law that any negligence by the deceased, or by a partner or agent of the deceased would bar plaintiff's recovery; (5) and that the trial court improperly prevented the plaintiff from exercising a peremptory challenge in the selection of the jury.

The appeal has been pursued on a settled statement, which indicates a conflict on the issue of negligence and contributory negligence and we are therefore, under well settled limitations upon the power of appellate courts, unable to resolve the factual differences contrary to the conclusions of the trial court. Dawson v. Williams, 127 Cal.App.2d 38, 273 P.2d 75. The evidence though conflicting was sufficient to justify the verdict.

Appellant complains of the court's instruction to the jury defining the oiler as the agent of the deceased. He maintains there was no evidence to this effect, or if there was, the court invaded the province of the jury by instructing it upon a question of fact.

We are handicapped by not having a complete transcript, and therefore cannot determine the extent of the evidence of agency or other relationship between the oiler and the deceased or partnership. We do find in the narrative statement on appeal that the ‘lease contract which was oral provided that said partnership provide an experienced oiler in the operation of the crane.’ In interrogating McDonald, produced as a witness for appellant, counsel brought out the following:

‘Q. Did you have someone else working there? A. I had an oiler.

‘Q. And was he on the job as long as you were on the job? A. Yes.’

Although appellant has quoted no evidence on the subject, it is conceivable that the partnership could ‘provide’ an oiler, or McDonald could ‘have’ an oiler by an independent contractual relationship, as well as by means of an agency. But the learned trial judge, in his memorandum upon denying the motion for new trial, wrote that ‘the case was tried and argued upon the assumption that such agency existed and it is too late now to contend otherwise.’ If the court's assertion was erroneous, it was appellant's duty on this appeal, a burden which he has failed to assume, to indicate to us wherein the evidence disclosed some relationship other than agency. If the court's opinion is accurate, then it is elementary that no error results from the acceptance of a fact concerning which there is no dispute in the evidence. Collins v. Graves, 17 Cal.App.2d 288, 297, 61 P.2d 1198.

Appellant next contends that imputed negligence was not pleaded, and therefore instructions permitting the jury to impute McDonald's or the oiler's negligence to the deceased were in error. On the other hand, respondent maintains that the negligence of an agent is properly at issue under a pleading of contributory negligence.

It is true that when an action is brought upon a contract made by an agent, it is not necessary to plead the agency, but merely the contract between the parties. Montgomery v. Dorn, 25 Cal.App. 666, 145 P. 148; 2 Cal.Jur.2d p. 879. But well established is the rule that the defense of imputed negligence must be specifically pleaded. It may not be injected through evidence, argument or instruction pursuant merely to a pleaded defense of contributory negligence. The cases of Campagna v. Market St. Ry. Co., 24 Cal.2d 304, 149 P.2d 281; Bennett v. Chanslor & Lyon Co., 204 Cal. 101, 266 P. 803, and Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518, 67 P.2d 398, are controlling. It is no answer to those authorities to point out that one involved a joint venture and another a husband-wife relationship. In respect to the imputation of one's negligence to another, they are analogous in principle to a partnership. The relationship is the significant element, for as stated in Bennett, 204 Cal. at page 105, 266 P. at page 804: ‘Imputed negligence, like contributory negligence, is a matter of defense. If the relationship between the driver of the vehicle and the plaintiff was such that his negligence would be imputable to her and bar her recovery, the burden was upon defendants to allege and prove such relationship. Plaintiff was not required to anticipate defenses.’ The later Campagna case was directly in point, 24 Cal.2d at page 307, 149 P.2d at page 283: ‘Concerning the question of pleading, the answer, as filed, did not include the defense of imputed negligence but, in general terms, it was alleged that the appellant was guilty of contributory negligence. Such a plea is not sufficient for one who seeks to charge a person with the negligence of another * * *.’ And again in Bencich, 20 Cal.App.2d at page 526, 67 P.2d at page 402: ‘No defense of imputed negligence was pleaded in this case. It therefore cannot be considered.’

The omission of this defense in the answer was not raised by appellant, however, until the motion for new trial. Throughout the trial no objection was made to evidence relating to negligence of agents of the deceased. Such evidence could be material and admissible only if imputed to the deceased. Under those circumstances, appellant had a duty to make timely objections. Resetar v. Leonardi, 61 Cal.App. 765, 767, 216 P. 71. His failure to do so will be deemed a waiver of the pleading defect. Simpson v. Bergmann, 125 Cal.App. 1, 5, 13 P.2d 531. Since the omission in no way affects jurisdiction, and appellant made no representation that the presentation of the defense took him by surprise, we do not believe a reversal is justified.

We now come to the fundamental point raised by appellant: a challenge to the doctrine of imputed negligence. The trial court erred, he argues, not only in instructing the jury as a matter of law that any negligence proximately contributing to the happening of the accident by the crane operator or the oiler would defeat appellant's right of recovery, but also in instructing the jury that the contributory negligence of the deceased would bar appellant from prevailing. Although there are numerous cases discussing joint control of motor vehicles and similar problems, the paucity of California decisions involving imputed negligence in a bona fide partnership relationship is perplexing.

The prototype of death statutes is Lord Campbell's Act, adopted in 1846 (see 44 Harv.L.R. 980) which gave a right of action only when the deceased himself, if the injury had not resulted in his death, might have maintained one, although its scope is enlarged to embrace the injury resulting from the death. Cooley on Torts, sec. 211. As stated by Prosser in his Law of Torts, page 965: ‘Under the survival acts, which merely continue the decedent's cause of action beyond his death, it is of course clear that any defenses which might have been set up against him if he had lived are still available to the defendant. The contrary might perhaps have been expected of the wrongful death acts, which create a separate and independent cause of action, founded upon the death itself, for the benefit of the designated survivors. The original Lord Campbell's Act, however, contained an express provision limiting the death action to those cases where the deceased might have recovered damages if he had lived; and this provision has been carried over into most of the American acts, or has been read into them by implication where it does not expressly appear. It obviously is intended at least to prevent recovery for death where the decedent could never at any time have maintained an action, as, for example, where there was simply no tortious conduct toward him. Accordingly there is general agreement that his contributory negligence, assumption of risk, or consent to the defendant's conduct will defeat recovery for his death, * * *’

The doctrine of imputed negligence contemplates that in certain relations there shall be visited upon the injured party, or the heirs suing in place of the deceased, the negligence of another concurring with that of the defendant so as to defeat the action. Shearman and Redfield on Negligence, sec. 83. The relation must be one in which the parties stand in such privity that the doctrine of qui facit per alium facit per se applies, Buttrick v. Pacific Electric Ry. Co., 86 Cal.App. 136, 140, 260 P. 588; Day v. Pickwick Stages System, 134 Cal.App. 92, 97, 25 P.2d 16, such as master and servant or principal and agent, Peccolo v. City of Los Angeles, 8 Cal.2d 532, 538, 66 P.2d 651, or the parties must be engaged in a joint enterprise, Williamson v. Fitzgerald, 116 Cal.App. 19, 24, 2 P.2d 201, or the parties must be partners, Andersen v. Omaha & C. B. St. Ry. Co., 116 Neb. 487, 218 N.W. 135; Hajsek v. Chicago, B. & Q. R. Co., 68 Neb. 539, 94 N.W. 609.

If two persons engage jointly in a common enterprise, in connection with, or in furtherance of which they use a vehicle driven by one of them, but in the management and control of which both have equal authority and right, each assumes responsibility for the conduct of the one who is driving. Blashfield, Cyclopedia of Automobile Law and Practice, sec. 2494. There is usually some relation between persons on a joint enterprise, such as partnership, principal and agent, master and servant, or some other kindred identity, in order to constitute such community of enterprise and joint control over the operation of the vehicle. Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518, 67 P.2d 398; Blashfield, supra, sec. 2866.

In Tannehill v. Kansas City, C. & S. Ry. Co., 279 Mo. 158, 213 S.W. 818, 822, two brothers were ‘neither master and servant, employé and employer, guest nor passenger of the other.’ They were, however, partners in the real estate business and on a joint enterprise. ‘In such case,’ said the court, ‘the negligence of one part owner of the car, when engaged in a joint enterprise, is imputable to the other.’ To the same general effect, although involving co-workers is the death case of Thomas v. Irvin, 96 Cal.App.2d 816, 216 P.2d 476.

This rule of imputed negligence, it must be observed, is not universally accepted. A few jurisdictions hold that the statutory action is derivative, its derivation being the tortious act and not the person of the deceased, so that the right of action passes on unfettered by disabilities of the relationship of the deceased and the tortfeasor. The well-reasoned case of Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 104 A.L.R. 1267, so holds. But such jurisdictions are in the small minority, and no California cases have reached that conclusion.

Flores v. Brown, 39 Cal.2d 622, 248 P.2d 922, represents our highwater mark in erection of a wall of separation between conduct of the deceased and the rights of his surviving wife and child. As analyzed in Kesler v. Pabst, 43 Cal.2d 254, ——, 273 P.2d 257, 258, in Flores ‘the question was presented whether the husband's death prevented the imputation of his contributory negligence to his wife in an action for her injuries and for the wrongful death of the minor child of the parties. It was held that the husband's negligence did not bar his wife's recovery. ‘* * * Under these circumstances the objective of preventing unjust enrichment may be accomplished by barring only the interest of the negligent spouse or his estate.’'

The words “or his estate” in the foregoing emphasize that Flores has not altered the fundamental principle of the heirs suffering the same disability as the result of the deceased's negligence or that of his agents as the deceased would have faced had he sued in his lifetime. The case has eliminated the previously harsh deprivation of a wife's recovery for physical injuries personal to her, or for the death of a child who as a passenger was itself free of negligence. It has not, however, enhanced rights which inure to the heirs only through the deceased and because of his death.

In re Estate of Riccomi, 185 Cal. 458, 197 P. 97, 14 A.L.R. 509; Rovegno v. San Jose Knights of Columbus Hall Assn., 108 Cal.App. 591, 291 P. 848, and Earley v. Pacific Electric Ry. Co., 176 Cal. 79, 167 P. 513, L.R.A.1918A, 997, are not inconsistent with the foregoing. They are authority for the proposition that our death statute is not one of survivorship, that it creates a different measure of damage from that which would have accrued to the deceased had he merely been injured, and that the recovery belongs to the heirs and is not a part of the estate.

This case would be comparable to, and controlled by Flores if, for example, Mrs. Buckley had been standing alongside Buckley and was personally injured in the same mishap that claimed Buckley's life. Clearly under Flores she could sue for her injuries, unfettered by a defense of imputed negligence.

But here the plaintiff sued, alleging in his complaint that he and his mother were the only heirs at law. His rights arise not because of invasion of his person, but solely because of his heirship, a role attributable to the passing of the deceased. Thus he may not recover for wrongful death if the deceased was guilty of contributory negligence which was a proximate cause of the death. Young v. Southern Pacific Co., 182 Cal. 369, 190 P. 36; Shade v. Bay Counties Power Co., 152 Cal. 10, 92 P. 62; Lemasters v. Southern Pacific Co., 131 Cal. 105, 63 P. 128; 8 Cal.Jur. p. 988. In regard to whether the deceased was negligent so as to prevent recovery for his death the usual rules in regard to injury by negligence apply. 8 Cal.Jur. p. 989.

There are cases that use such broad language as ‘the rule of imputed negligence as applied to actions by children in their own right no longer prevails,’ notably Zarzana v. Neve Drug Co., 180 Cal. 32, 179 P. 203, 205, 15 A.L.R. 401 and Smith v. Schwartz, 14 Cal.App.2d 160, 57 P.2d 1386. In Zarzana, however, the child was physically injured and the contributory negligence sought to be imputed was the absence of proper care and supervision by the parent. The court acidly assailed the theory that the negligence of the parent was the negligence of the child. In Smith, the child was a passenger in a vehicle and should have been accorded the same consideration by the law as other passengers would have received instead of being penalized because the contributorily negligent driver was his father. Bowen v. Kizirian, 105 Cal.App. 286, 287 P. 570, was a death case, but there the minor sued for the death of her mother, whereas the contributory negligence sought to be imputed was that of the surviving father, guardian of the minor. The court held, 105 Cal.App. at page 290, 287 P. at page 572, it was ‘absurd to hold that an innocent party cannot recover because another party, with whom he is required by law to be joined as plaintiff, is not innocent.’ The case was determined on the theory that the negligence of one beneficiary cannot prejudice other beneficiaries.

A reasonable test for ascertaining when negligence may be imputed is suggested in Restatement of the Law of Torts, Sec. 485: ‘In order that a negligent act or omission of a third person may bar a plaintiff from recovery, the relation between the plaintiff and the third person must usually be such as to make the plaintiff responsible at common law to others who may be harmed by the same or a similar negligent act or omission of such third person. And again in Sec. 491: ‘Any one of several persons engaged in an enterprise is barred from recovery against a negligent defendant by the contributory negligence of any other of them if the enterprise is so far joint that each member of the group is responsible to third persons injured by the negligence of a fellow member.’ The same rule is approved in effect in Williamson v. Fitzgerald, supra. Cited as an example by Restatement (Sec. 491) is a partnership, for ‘A partnership is a joint enterprise and therefore each partner is responsible, not only as defendant but also as plaintiff for the manner in which his fellow partners conduct the partnership activities.’

The Restatement test can be applied here. Let us assume that due to the negligence of McDonald or the oiler, a casual passer-by had been struck by the boom. There can be no question that both partners, McDonald and the deceased, would have been liable to the victim for the negligence, for each partner is an agent of the firm; and, as in any other case of agency, his acts are held to engage his principal's delictual as well as contractual liability. 20 Cal.Jur. p. 737.

However desirable to this appellant some other rule might be, there seems no room for doubt that under all existent California authority, the contributory negligence of the deceased, or those for whom he is responsible, will bar recovery in a wrongful death action. The trial court's instructions were therefore not erroneous.

Finally, appellant complains of error in being restricted in his exercise of peremptory challenges to the jury. The trial court maintained once counsel waived any peremptory challenge to the jurors in the box, that challenge expired as to those jurors, that a peremptory may thereafter be exercised only with respect to a juror or jurors called into the box after the waiver. On the other hand, appellant, after waiving his fifth peremptory challenge, sought to later excuse juror No. 10 who had been in the box at the time of the passed challenge. The court declined to permit the juror's withdrawal.

There have been at least three schools of thought among both trial and appellate courts on the employment of Code of Civil Procedure, Sec. 601 as it existed prior to the 1953 amendment. That section permitted six peremptory challenges, but ‘they must be taken by the sides alternately’ and ‘each side shall be entitled to have the panel full before exercising any peremptory challenge.’

The first point of view, in essence urged here by appellant, is that a party may exercise his peremptory challenges at any time and in any order. Silcox v. Lang, 78 Cal. 118, at page 124, 20 P. 297, at page 300, is the one civil case so holding, the court stating: ‘The fact that a party may pass the panel as satisfactory to him, at a certain stage of the examination, cannot be held to cut off his right to challenge one of the jurors so passed at a later stage. Such changes may have been made by subsequent challenges as to render it desirable to him that the particular juror should not sit, and of this the party must be the sole judge. The right of challenge may be exercised at any time before the juror is sworn.’ A second and conflicting view was taken by the Supreme Court in Vance v. Richardson, 110 Cal. 414, 416, 42 P. 909, 910, decided seven years after Silcox. There the court held that ‘the parties must challenge alternately’ and that in exercising a peremptory challenge after first passing, the appellant ‘sought an advantage to which he was not entitled.’ The third line of cases holds that the procedure is discretionary with the trial court. Jones v. Southern Pacific Co., 74 Cal.App. 10, 37, 239 P. 429; Vallejo, etc., R. Co. v. Reed Orchard Co., 169 Cal. 545, 559, 147 P. 238; 50 C.J.S., Juries, § 282, page 1079.

At common law there was no peremptory challenge in civil actions. The right, therefore, is purely statutory, and, it has often been said, procedural statutes involving practices unknown to common law should be strictly construed. 35 C.J. 406; 50 C.J.S., Juries, § 280. On the other hand authorities indicate that the right to peremptorily challenge jurors should be liberally construed and its freest exercise permitted to enable the parties to obtain a fair, intelligent and representative jury. People v. Edwards, 101 Cal. 543, 36 P. 7. In criminal cases, neither the people nor a defendant waive any right to subsequently exercise a peremptory challenge by temporarily passing a jury. 10 Attorney General's Opinions 79.

We believe the right to challenge peremptorily in civil cases, too, should be permitted generously. It is important to our jurisprudence not only that jurors actually be fair and impartial, but that the parties to the proceeding be satisfied they have participated fully in the selection of fair and impartial jurors. Since the code requires a full panel before peremptories are to be exercised, the legislature apparently desired the parties to be able to review the complexion of the whole jury in considering challenges. The entrance of a new juror of certain age, sex, occupation or other qualification might well change counsel's appraisal of a previously acceptable individual. This would appear to be the view subsequently adopted by the 1953 legislature when it added to Code Civil Procedure, Sec. 601 that ‘The number of peremptory challenges remaining with a side shall not be diminished by any passing of a peremptory challenge.’ To limit challenges to new jurors only is comparable in effect to reducing or diminishing the effectiveness, if not the number, of challenges. People v. Edwards, supra.

The instant case, however, was tried before the effective date of the amendment. The prevailing law and practice at that time made the procedure discretionary with trial courts. Jones v. Southern Pacific Co., supra; Vallejo, etc., R. Co. v. Reed Orchard Co., supra; Vol. 24 L.A. Bar Bulletin, No. 11, p. 328. As stated in Code of Civil Procedure, Sec. 187, ‘if the course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.’ Prior to the trial the court advised counsel of its practice. Any subsequent embarrassment resulting from an attempted challenge being rejected is attributable entirely to counsel forgetting the court's admonition.

From consideration of the settled statement and points ably raised on appeal, we are unable to perceive any error requiring a reversal of the judgment.

The judgment is affirmed.

MOSK, Justice pro tem.

WHITE, P. J., and DRAPEAU, J., concur.