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Court of Appeal, Second District, Division 4, California.

Richard MENCHACA et al., Plaintiffs and Appellants, v. HELMS BAKERIES, Defendant and Respondent.

Civ. 30458.

Decided: November 22, 1967

Lawrence William Steinberg, Beverly Hills, and Martin Sosin, Los Angeles, for plaintiffs and appellants. George A. Kuittinen, North Hollywood, and Jean Wunderlich, Los Angeles, for defendant and respondent.

This is an action for wrongful death. Plaintiffs are appealing from the judgment which followed a jury verdict for defendant.

Plaintiffs Richard and Barbara Menchaca were the parents of 22-month-old Richard Menchaca, Jr., who was killed when struck by a truck owned by the defendant Helms Bakeries.

On September 30, 1963, the defendant's driver was making a delivery to the Blanchard home on Morningside Street in Mar Vista. The driver testified that as he turned the corner onto Morningside, he sounded his whistle and four children began running down the Blanchard driveway. He pulled over to the left side of the street and parked at the Blanchard driveway so the approaching children would not have to cross the street to reach his truck. The driver saw four children approach the truck, the two Blanchard children and two Menchaca children, sisters of the deceased Richard. The driver made a sale to another little girl whom he saw go home. After handing bread and doughnuts to the Blanchard children the driver turned toward the rear of the truck, shut the bread and recorded the transactions in a book. When he turned toward the front of the truck he saw that the four children were safely standing in the driveway. He then started the truck. As the truck moved forward it passed over the body of Richard who apparently had been standing in front of the left front wheel. The driver testified that at no time prior to the accident had he observed Richard. This was corroborated by a neighbor who saw Richard go down the Blanchard driveway to the left front of the Helms truck while the driver's back was turned.

Plaintiff Barbara Menchaca, the mother of Richard, testified that she and the children were visiting the Blanchard home. For ten minutes before the accident, Richard, his sisters and the two Blanchard children were playing in the backyard of the Blanchard home. The oldest child of this group was five years of age. The backyard was enclosed by a fence. The gate to the fence was locked but all of the children except Richard were able to open the latch. When she discovered that the yard was empty, she went outside to investigate. As she came down the driveway Mrs. Menchaca saw the four older children standing at the foot of the driveway and heard a scream. At that moment the truck ran over Richard.

I—Effect of instructions on negligence

Plaintiffs' appeal is based in part upon a claim of error in the jury instructions on the issue of the defendant's negligence. Defendant argues that no such claim of error need be considered. Defendant contends that the verdict of the jury could have been based either upon a finding that defendant was not negligent, or a finding that the plaintiff parents were guilty of contributory negligence; and that the court must assume in favor of the judgment that the jury found in defendant's favor on the latter issue, so that any error with respect to the other issue would be harmless. As authority for this proposition defendant cites Nigro v. West Foods of California, 218 Cal.App.2d 567, 571, 32 Cal.Rptr. 692; Thompson v. Casaudoumecq, 205 Cal.App.2d 549, 23 Cal.Rptr. 189, and Philpott v. Mitchell, 219 Cal.App.2d 244, 255, 32 Cal.Rptr. 911. The Nigro and Thompson cases are not in point, for they do not consider the effect of procedural error. Those cases hold that if the evidence is sufficient to support the verdict on one theory, it is unnecessary to consider the sufficient on any alternative theory. The Philpott case does support defendant's argument, but the court which decided Philpott thereafter reached the opposite conclusion in Hudspeth v. Jaurequi, 234 Cal.App.2d 526, 528, 44 Cal.Rptr. 428.

In Hudspeth the trial court erred in failing to give proper instruction on the negligence issue. The opinion says at page 528, 44 Cal.Rptr. at page 429:

‘Finally, defendants argue that if there was error it was harmless because plaintiff suffered no injuries. However, plaintiff testified that she was injured, and she presented evidence on the issue of damages. From the record it cannot be determined whether the jury disbelieved plaintiff's evidence concerning her injuries and decided the case on the issue of damages, or whether the jury concluded defendants were not negligent and decided the case on the issue of liability. An appellate court will not speculate on which issue the jury based its verdict under such circumstances. (Robinson v. Cable, 55 Cal.2d 425, 428, 11 Cal.Rptr. 377, 359 P.2d 929; Miller v. Peters, 37 Cal.2d 89, 95, 230 P.2d 803.)

‘* * *

‘The judgment is reversed.’

The two decisions of the Supreme Court, cited in Hudspeth, support the view that erroneous instructions on one issue, which may have been the basis of the verdict, may be ground for reversing the judgment.

II—Claimed error in instructions

(a) Plaintiffs contend that the trial judge erred in refusing their request to instruct the jury:

‘California Vehicle Code, Section 27001, in effect at the time of the accident, provided in relevant part as follows: ‘The driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn.’'

This requested instruction quotes only a portion of the code section. The omitted sentence reads ‘The horn shall not otherwise be used.’ The statute, read as a whole, indicates that the horn is not to be used unless some particular circumstance calls for it. To tell the jury that the first sentence of the section alone is the ‘relevant part’ would be misleading in the context of this case. The driver testified that he saw only five children, and he observed that all had returned to a position of safety before he started his vehicle. The jury could have concluded that the driver had no more reason to sound his horn on this occasion than would any other driver starting such a vehicle in a residential area. Under the general instructions on the subject of negligence the jury was of course at liberty to consider whether failure to sound a horn in this instance violated the standard of the reasonable man. But to have presented the issue to the jury in terms of the Vehicle Code section, it would have been necessary to include the qualification contained in the second sentence.

The cases relied upon by plaintiffs deal with other kinds of situations.

In Rush v. Lagomarsino, 196 Cal. 308, 320, 237 P. 1066, it was error to refuse to give a requested instruction quoting the complete code section. The evidence there showed the defendant was driving in the dark, without lights, through a crosswalk where he had reason to expect pedestrians.

In Jones v. Maynard, 141 Cal.App.2d 643, 297 P.2d 461, it was error to refuse to give an instruction on the complete code section. There was evidence that the defendant knew plaintiff was somewhere close to the truck when it started.

In Weiss v. Baba, 218 Cal.App.2d 45, 32 Cal.Rptr. 137, failure to give an instruction based on the first sentence of section 27001 was held to be error. The second sentence of the section is not mentioned in the opinion, and it does not appear that anyone raised the contention that this made the proposed instruction defective. The case involved a nighttime collision of two vehicles at an intersection where visibility was limited by hedges, trees and parked cars. Defendant had admitted that he had seen the lights of the plaintiff's vehicle. This is a fact situation quite different from the case at bench, where the defendant testified without contradiction that he was unaware of anyone's presence.

Closer in point is Trapani v. Holzer, 158 Cal.App.2d 1, 321 P.2d 803, where a judgment for defendant was affirmed, despite the refusal of the trial court to instruct on the use of a horn. The evidence showed that defendant did not see the deceased before the accident. The court said (at pp. 7–8, 321 P.2d at p. 807):

‘As to the statute requiring a driver to blow his horn when necessary to insure safe operation, Vehicle Code, Section 671 (b), paraphrased by the plaintiffs in one of the refused instructions, that statute further provides: ‘Such horn shall not otherwise be used.’ In the case of Free-land v. Jewel Tea Co., 118 Cal.App.2d 764, 258 P.2d 1032, cited by the plaintiffs, the presence of the children was known to the driver.'

(b) Plaintiffs also argue that the court erred in refusing to give a number of instructions offered by them on the subject of negligence. The court explained negligence in general terms by giving BAJI Nos. 101 (revised), 101–B, 101–C, 102 (revised), and 102–A. It also gave BAJI No. 148, as follows:

‘One dealing with children must anticipate the ordinary behavior of children. The fact that they usually cannot and do not exercise the same degree of prudence for their own safety as adults, that they often are thoughtless and impulsive, imposes a duty to exercise a proportional vigilance and caution on those dealing with children, and from whose conduct injury to a child may result.’

These instructions presented the law on the issue of negligence. While other more specific instructions might have been given as requested, the failure to do so could not have affected the jury's understanding of the problem.

Borenkraut v. Whitten, 56 Cal.2d 538, 15 Cal.Rptr. 635, 364 P.2d 467, does not support plaintiffs' contentions here. There it was held to be prejudicial error to refuse to instruct the jury on the extreme caution required of one who pours gasoline into a carburetor, an especially hazardous activity. No comparable situation is involved here. The duty of a driver to keep a proper lookout is so familiar to everyone that jurors can be expected to grasp the applicability of general negligence instructions to the facts of this case. Plaintiffs were not prejudiced by the refusal of more elaborate instructions.

III-The claim of misconduct

Appellants contend that ‘The cause of plaintiffs was heavily and prejudicially denigrated when defendant's counsel was permitted to argue, without admonition despite the protest of plaintiffs' counsel, that ‘in his experience’ he had never heard of a 22-month-old child wrongful death case with a recovery representing even a low fraction of $25,000.00.'

Ordinarily, allusions to an attorney's personal knowledge and experience in argument are improper, and may constitute misconduct requiring a reversal. (Garden Grove School Dist. v. Hendler, 63 Cal.2d 141, 143, 45 Cal.Rptr. 313, 403 P.2d 721.) In the case at bench plaintiffs are in no position to complain. Plaintiffs' attorney, in his argument, asked the jury to award $25,000, and then closed by saying ‘it may be that Mr. Kuittinen * * * will enlighten you as to what he feels a reasonable and appropriate award should be * * *.’

Defendant's counsel accepted the challenge in these words:

‘He asked me to say something about it. Well, I will. Never in my experience have I heard of a disposition of a death of a 22-month-old child with a recovery representing even a low fraction of the amount of money he asked for.’

After plaintiffs objected, the court stated there was no misconduct, but he admonished the jury thus:

‘Some discussion has arisen between counsel and the Court as to the propriety of counsel's referring to the fact that he had never experienced or known of any verdict of $25,000 in any other case. I want to caution the jury that the only and the sole issue to be determined by this jury in this case is the determination of, first, liability, if any, of the defendant; and, secondly, what damages should be awarded these plaintiffs as based solely and exclusively upon the evidence here without any reference to what happens in some other case, because in some other case the evidence may be entirely different than it is in this case.’

Under the circumstances there was no misconduct, and the outcome of this exchange was not unfair to plaintiffs.

Plaintiffs also claim misconduct in the defense attorney's comment upon the fact that the owner of the vehicle, not the driver, was the sole defendant. But plaintiffs did not raise the point in the trial court, and therefore may not complain of it now on appeal. (Horn v. Atchison, T. & S. F. Ry. Co., 61 Cal.2d 602, 611, 39 Cal.Rptr. 721, 394 P.2d 561.)

IV—Negligent design

During plaintiffs' closing argument the following colloquy took place between the trial judge and counsel for plaintiffs:

‘MR. STEINBERG: * * * we are considering not just the negligence of Mr. Bransfield but the negligence, if any, on the company.

‘I mean, the plaintiffs are asserting the negligence of the company with regard to the mode of equipment and maintenance of that truck, which you have only to look at the truck to see what I mean. I talked about it earlier, the difficulties of seeing and the added ones, so these issues—when this——

‘THE COURT: I must interrupt, counsel, at this point. There is no evidence in this case that this truck was improperly constructed or was an improper truck to be used for this purpose, so the jury is admonished that that's not an issue before them.

‘MR. STEINBERG: Well, at any rate, your Honor, I think it would be fair to say that the care which the care which the driver would have to use would be——

‘THE COURT: That's something else.

‘MR. STEINBERG: Let us say——

‘THE COURT: But as far as the truck, itself, is concerned, there is no evidence it was improper to be used for this purpose and that there was any faulty construction of the truck that had anything to do with the accident.

‘MR. STEINBERG: Yes, your Honor.

‘So that, as I say, at any rate, the question of what ought to be done, what ought to be done by the driver in given situations, would relate to the kind of truck which he was driving and using in the course of his work.’

Based on the judge's remarks, appellants maintain that ‘The trial court erred seriously and reversibly in withdrawing from the jury during plaintiffs' closing argument the strongly supported issue of defendant's negligence in equipment and construction of the retail truck.’

There is nothing in the pleadings or the pretrial papers which raised any issue as to the design or construction of the truck. The complaint alleges that ‘the defendants and each of them so negligently entrusted, managed, maintained, drove and operated’ the truck as to inflict the fatal injuries. The plaintiffs' ‘separate statement of issues, contentions and itemization of damages' (Pretrial form 2) states:

‘Plaintiff contends that defendant HELMS BROS., INC., was negligent in respects including choice, sinstruction [sic] and training of its driver, and use, maintenance and equipment of the truck involved in the accident; and that defendant HELMS BROS., INC. was negligent through its agent and employee driver in respects including driving on the wrong side of the street and starting when it was unsafe to do so, and in failing to keep a proper lookout, and in his mode of delivery of bakery products, and in his driving and operation of the delivery truck.’

The pleading and statement of contentions exclude any issue as to the design and construction of the truck. No evidence was offered or received with respect to this non-existent issue. The physical characteristics of the truck were described in the testimony, as such description was pertinent to any determination of the kind of precautions which the driver should use in operating it. Neither side offered evidence as to whether the design of the truck and its equipment met proper standards. There was no evidence that it lacked proper maintenance.

Upon this record plaintiffs' attorney should not have attempted to argue to the jury that the defendant was negligent ‘with regard to the mode of equipment and maintenance of the truck.’ It was appropriate for the trial court to remind counsel that his argument seemed to go beyond the issues and the evidence.

Plaintiffs' attorney did not take exception to the court's remark. His succeeding statement indicated that he was trying to make a different point, namely, that the reasonableness of the driver's conduct ‘would relate to the kind of truck which he was driving.’ The court agreed counsel was entitled to make that argument. It thus does not appear that counsel was prevented from arguing fully the effect of the evidence in the record.

V-The use of defendant's concessions

Plaintiffs called as their witness a deputy coroner and commenced to interrogate him as to the condition of the child's body immediately after death. Defendant's attorney objected and offered to stipulate that the child died of injuries sustained in the accident. He further advised the court that two days before the trial he had told plaintiffs' attorney that he would so stipulate, in order to obviate the calling of the medical witness. The court stated it would accept defendant's admission. Plaintiffs' attorney then stated that he wished to show the child was in excellent physical condition but for the fatal injury. Defendant then offered to stipulate that the child was in good health.

The court then told counsel the evidence would not be received, and thereafter told the jury that defendant had admitted that the child had died solely as a result of the accident, and had been in good health before the accident.

Later plaintiffs' attorney told the court he desired to call the child's pediatrician ‘to show that this was a normal, bright, and healthy child.’ Defendant's attorney said, ‘I stipulated that he was.’ The court remarked, ‘So there isn't any occasion for bringing him in.’

Plaintiffs' attorney appeared to acquiesce in this view, as he stated, after a brief discussion:

‘Anyway, your Honor, in view of the effort involved in getting a doctor to court anyway, and the expense, I might add, I don't want to do it and just have no ability, you know, to use his testimony.’

Thereafter, in the presence of the jury, the court stated:

‘Counsel for plaintiff has indicated he might want to call another doctor for the purpose of having that doctor testify that the child before this accident was a normal, healthy child.

‘Counsel for the defendant has so stipulated, so the Court has directed it will not be necessary to call the doctor.’

Plaintiffs now ask a new trial because the trial court accepted the concessions of defendant's attorney in lieu of evidence. In this case it was reasonable for the trial court to conclude that a coroner's description of the child's body after death would serve only to excite the sympathy of the jury. Plaintiffs' attorney inferentially acknowledges his real purpose, as he criticizes the ‘pale stipulation’ which he was forced to accept.

The pediatrician's testimony as to the child's health could establish no more than the fact which was admitted. Plaintiffs argue that they were entitled to show something more of the nature and disposition of the child. Curiously, although both parents testified, neither was asked about that subject. A photograph of the child was received in evidence, and the father gave a physical description and told of his ambition that the boy go to college and become a professional football player.

There was no contention that the witness had any special way of predicting the future of a healthy child at that state of its development. It seems doubtful that a pediatrician could have given any prognosis other than what a jury could infer from the conceded fact of good health at the age of 22 months. There was no evidence tending to create any unfavorable impression of the child's health, disposition, or character. No offer of proof was made other than the statement that the doctor would attest to a state of health.

Under the circumstances it was not error for the trial court to accept the concessions of the defendant and limit the proof accordingly. (See Sumrall v. Butler, 102 Cal.App.2d 515, 518–519, 227 P.2d 881.)

The judgment is affirmed.

FILES, Presiding Justice.