WEST v. City of San Diego, Appellant.

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District Court of Appeal, Fourth District, California.

Dorothy D. WEST, Incompetent, by Mert J. West, her Guardian ad Litem, and Mert J. West, Plaintiffs and Respondents, v. CITY OF SAN DIEGO et al., Defendants, City of San Diego, Appellant.

Civ. 6148.

Decided: November 19, 1959

Jean F. DuPaul, City Atty., and Raymond F. Moats, Jr., Deputy City Atty., McInnis, Focht & Fitzgerald and William T. Fitzgerald, San Diego, for appellant. Enright, Von Kalinowski & Levitt, San Diego, for respondents.

This is an action for damages for personal injuries arising out of a collision between a San Diego police vehicle and an automobile being driven by plaintiff Dorothy West. The suit was brought by Mert J. West, her husband, as guardian ad litem for her and he joined in the action suing for loss of his wife's services and companionship.

A jury trial resulted in a verdict and judgment in favor of plaintiff Dorothy D. West and against the defendant City of San Diego in the sum of $57,828.69 and in favor of plaintiff Mert J. West in the sum of $5,000. The City appealed from the judgment, contending that the court erroneously instructed the jury and that there is no right of action under California law for loss of consortium by a husband for negligent injury to his wife.

The accident occurred on March 11, 1957, at approximately 2:00 p. m. on U. S. Highway 101 in Rose Canyon in San Diego. The highway at the point of collision had four lanes, two for northbound and two for southbound traffic, and the lanes were separated by a raised center island approximately two feet in width. The police officer, Sgt. Harry Vincent Kay, was proceeding north in the northbound outside traffic lane, rounding a curve, and at a point approxiamtely one-fourth of a mile north of the Union Brick Yard, the police car went out of control, crossed the inside northbound traffic lane, laying down heavy skid marks, jumped the raised center island and, after grazing one southbound car, collided broadside with a Ford Ranch Wagon being driven south by plaintiff Dorothy West in the inside southbound traffic lane and then struck a gravel truck Sgt. Kay was killed in the accident and plaintiff Dorothy West suffered severe injuries, including fracture of facial bones and knee cap and severe brain contusions. She suffered massive brain atrophy which reduced her mentality to that of a four or five year old child, resulting in an adjudication that she was an incompetent.

There was conflict in the evidence as to what caused the police car to go out of control. A truck driver who was driving north on the highway testified that when he was approximately one-half mile from the brick yard he looked in his mirror and saw the police car coming up behind him; that it passed his truck at a speed of approximately 60 miles per hour and returned to the right hand northbound traffic lane. Persons who were at the Convair warehouse located on the east rim of the canyon heard the police car siren and the driver was observed to increase his speed. Other witnesses stated that they did not hear a siren or observe a red light. The evidence shows that there was a car ahead of the police vehicle in the inside northbound traffic lane, clearly visible to the officer for a distance of one-fourth to one-half mile south of the point of collision that the driver of this vehicle heard the siren at the approximate time the officer attempted to pass him and pulled to the right to yield the right of way, thereby pulling into the path of the police vehicle intent on passing to the right. There was also conflict in the evidence as to whether the officer was attempting to overtake a speeding car at the time of the accident. A speeding car was described differently by three witnesses and there were several witnesses who testified that they saw no such car ahead of the police vehicle.

Appellant contended at the trial that the police officer was exempt from the provisions of the Vehicle Code because he was driving an authorized emergency vehicle, was in the immediate pursuit of an actual or suspected violator of the law and was sounding his siren and displaying his red light, all as required by section 454 of the Vehicle Code; and that even if not exempt under said Vehicle Code section, the police officer was, under all the surrounding circumstances, not guilty of negligence.

Appellant's first contention on appeal is that the trial court erred in its instructions to the jury on the emergency vehicle privilege. The record shows that 81 instructions were read to the jury (Rep.Tr., pp. 700–759) and that many of these instructions dealt with the rules applicable to liability for negligent acts without consideration of the emergency vehicle privilege. For example, in instruction No. 32 the court said: ‘If by a preponderance of evidence it has been proved that any negligent conduct on the part of the defendant was a proximate cause of an injury in question, such proof is sufficient to establish liability.’ In instruction No. 39, in stating the issues to be determined by the jury, no mention was made by the court of the issue involving the emergency vehicle privilege. In instruction No. 52 the jury was instructed that:

‘The speed at which a vehicle travels upon a highway, considered as an isolated fact and simply in terms of so many miles an hour, is not proof either of negligence or of the exercise of ordinary care.

‘Whether that rate of speed is a negligent one is a question of fact, the answer to which depends on all the surrounding circumstances.

‘The basic speed law of this State, as provided by Section 510 of our Vehicle Code, is as follows:

“No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent, having due regard for the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.'

‘Prima facie speed limit that was in effect at the time and place of the accident involved in this case was fifty-five miles an hour.’

Instruction No. 56 was as follows:

‘Section 454 of the Vehicle Code provides:

‘The driver of a motor vehicle could be guilty of wilful misconduct in doing no wrong except driving at a speed which in the attendant circumstances would be excessive and reckless, provided either that in so driving he had knowledge that serious injury to another probably would result, or that he drove at such speed with a wanton and reckless disregard of the possible results.

“and speed alone may constitute an arbitrary exercise of the privileges extended by Section 454 of the Vehicle Code.”

It is apparent that the trial court did not correctly state the provisions of section 454 of the Vehicle Code in this connection. This section provides as follows:

‘The driver of an authorized emergency vehicle shall be exempt from those provisions of this code herein set forth under the following conditions:

‘(a) Said exemptions shall apply whenever any said vehicle is being driven in response to an emergency call or when used in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm.

‘(b) Said exemptions shall apply only when the driver of said vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to others. Under the circumstances hereinabove stated, any said driver shall not be required to observe those regulations contained in Chapter 3 or in Chapters 6 to and including Chapter 13 of Division 9 or Section 604 of this code, but said exemptions shall not relieve the driver of any said vehicle from the duty to drive with due regard for the safety of all persons using the highway, nor shall the provisions of this section protect any such driver from the consequences of an arbitrary exercise of the privileges declared in this section.’

In instruction No. 57 the jury was told that ‘If a party violated the statute just read to you, a presumption arises that he was negligent.’ It does not appear that the statute was in fact read to the jury, as stated, and it further appears that the jury was informed that ‘speed alone may constitute an arbitrary exercise of the privileges extended by section 454 of the Vehicle Code.’ It is apparent that the trial court informed the jury that speed alone, despite the fact of the exemption granted by the statute, may constitute negligence. This, we conclude, was reversible error.

In Goldstein v. Rogers, 93 Cal.App.2d 201, 206, 208 P.2d 719, 722, the court said:

‘Section 454 of the Vehicle Code expressly relieves the operator of an emergency vehicle being driven in response to an emergency call from compliance with the regulations contained in Chapter 6 of Division 9 of the Code, where, as a warning, a siren is sounded and a red lamp is displayed. Chapter 6 is entitled, ‘Speed Laws,’ and includes Section 510, the basic speed law of the state. Since the decision in Lucas v. City of Los Angeles, 10 Cal.2d 476, 75 P.2d 599, it must be considered as settled law that a finding of negligence in the operation of an emergency vehicle cannot be predicated upon violations of speed regulations alone, where the required warning has been given. See, also, Reed v. Simpson, 32 Cal.2d 444, 450–451, 196 P.2d 895; Coltman v. City of Beverly Hills, 40 Cal.App.2d 570, 573, 105 P.2d 153. The error in the instructions is apparent. They authorized the jury to predicate a finding of contributory negligence merely upon a determination that plaintiffs drove at a speed greater than would have been reasonable under the circumstances for a nonexempt vehicle, or at a speed which, if maintained by an ordinary vehicle, would have been dangerous to the safety of persons or property. By its instructions, the court denied plaintiffs the benefit of a privilege expressly conferred upon operators of emergency vehicles by the legislature. Similar instructions were held to be erroneous in Raynor v. City of Arcata, 11 Cal.2d 113, 117–118, 77 P.2d 1054.'

In Raynor v. City of Arcata, 11 Cal.2d 113, 117, 77 P.2d 1054, 1057, the court, in discussing secting 120 and 132 of the Vehicle Code then in effect, stated that these sections provided that the exemption did not protect the driver from ‘an arbitrary exercise’ of a privilege but that an arbitrary exercise of said privileges cannot be predicated upon the elements of speed and failure to observe other rules of the road when a warning has been given, and that the conduct of the driver of an emergency vehicle in responding to an emergency call is actionable only where it is in the nature of ‘wilful misconduct’. In the instant case no mention was made in the above criticized instructions of this rule of law nor of the provisions of section 454 of the Vehicle Code relative to the ‘arbitrary exercise’ of the privileges declared in that section. While it is true that in another instruction the trial court properly instructed the jury with reference to the meaning of the phrase ‘arbitrary exercise of the privilege’ and as to the effect of the exemption statute, it cannot be determined whether the verdict was reached upon the basis of the criticized instructions or upon the later instructions given. As is said in Francis v. City and County of San Francisco, 44 Cal.2d 335, 341, 282 P.2d 496, 500:

‘The giving of an erroneous instruction is not cured by the giving of other correct instructions where the effect is simply to produce a clear conflict in the instructions and it is not possible to know which instruction was followed by the jury in arriving at a verdict.’

In the instant case an examination of the entire charge to the jury does not convince us that the error complained of was cured by the other instructions given. The instruction that the ‘prima facie speed limit that was in effect at the time and place the accident involved in this case was 55 miles per hour’ coupled with the instruction that ‘A violation of any of the Vehicle Code sections, namely, 510, 511, 525, 529 (b) or 544, that I have read to you constitutes negligence as a matter of law, unless, under all the circumstances surrounding the event, the conduct in question was excusable, justifiable and such as might reasonably have been expected from a person of ordinary prudence.’, without consideration of the exemption set forth in section 454 of the Vehicle Code, may well have caused the jury to conclude that violation of the basic speed law alone was actionable negligence.

Appellant contends that there is no right of action under California law for loss of consortium by a husband for negligent injury to his wife.

In Deshotel v. Atchison, T. & S. F. Ry. Co., 50 Cal.2d 64, 328 P.2d 449, 450, it was held that a wife whose husband has been injured as the rusult of the negligence of a third person may not maintain an action for loss of ‘consortium’ (a term which is used in the opinion to refer to noneconomic aspects of the marriage relationship, including conjugal society, comfort, affection, and companionship). In discussing the question of whether the husband is given a right to recover for loss of ‘consortium’ if his wife is negligently injured, the court said:

‘In a number of jurisdictions where the wife has not been allowed recovery, the husband is given such a right if his wife is negligently injured. See Prosser on Torts (2d ed. 1955), 701 et seq.; Rest., Torts, § 693; 133 A.L.R. 1156, 1157; 23 A.L.R.2d 1378, 1380. Plaintiff argues, in effect, that the courts which withhold relief from the wife have relied upon medieval concepts of the marriage relation, that in modern times the marital status of the wife has changed, placing her in a position equal to that of her husband, and that there is no longer any reason to refuse her the kind of redress which he may obtain. Some jurisdictions, however, have denied recovery to the husband as well as to the wife. [Citations.] The law in California with respect to the right of the husband is not settled. In Meek v. Pacific Electric Ry. Co., 175 Cal. 53, 56, 164 P. 1117, it was said that damages could not be obtained by a husband for the loss of his wife's ‘society, or what is termed the consortium.’ This statement was rejected as ‘inadvertent dictum’ in Gist v. French, 136 Cal.App.2d 247, 288 P.2d 1003, which held that a husband whose wife had been negligently injured could recover not only for the loss of services but also for the loss of cohabitation and society. We agree that the quoted statement in the Meek case is dictum, but a statement in the Gist case which indicates that the wife may recover for loss of consortium resulting from a negligent injury to her husband is also dictum (see 136 Cal.App.2d 247, 257, 288 P.2d 1003, 1009), and for the reasons hereafter given, the language in the Gist case relating to the wife's rights is disapproved.'

In the Gist case it was held that a husband whose wife had been negligently injured could recover not only for the loss of services but also for the loss of cohabitation and society. A petition for hearing was denied in that case by the Supreme Court and in the Deshotel case the right of the husband to recover for loss of consortium was not decided. However, the court, as noted, held that the law in California with respect to the right of the husband was not settled, citing decisions denying recovery to the husband as well as to the wife. The court then stated that some of the objections noted with respect to an action by the wife applied with equal force to one brought by the husband. The statements made by the Supreme Court in the Deshotel case indicate recovery should be denied to a husband as well as to the wife for loss of consortium until directly allowed by legislative action. We can see no compelling reason for denying recovery by a wife and permitting recovery by a husband.

Judgment in favor of plaintiff Dorothy D. West and in favor of Mert J. West reversed.

MUSSELL, Justice.

GRIFFIN, P. J., and SHEPARD, J., concur.