DILLENBECK v. CITY OF LOS ANGELES

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Court of Appeal, Second District, Division 3, California.

Margaret H. DILLENBECK and Timothy Owen Dillenbeck, a minor, by his Guardian ad Litem, Margaret H. Dillenbeck, Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent.

Civ. 30275.

Decided: November 30, 1967

Getz, Aikens & Manning and George E. Leaver, Los Angeles, for plaintiffs and appellants. Roger Arnebergh, City Atty., Bourke Jones and John A. Daly, Asst. City Attys., for defendant and respondent.

The plaintiffs Margaret H. Dillenbeck and Timothy O. Dillenbeck are the surviving wife and son respectively of Arthur O. Dillenbeck, deceased. They brought an action against the City of Los Angeles and Abraham Weber, a police officer for the City of Los Angeles, for the wrongful death of Arthur O. Dillenbeck, deceased, arising out of the collision of the vehicle driven by the latter with a police vehicle owned by the City and operated at the time of the accident by Weber in the course and scope of his employment. California Compensation and Fire Insurance Company, the insurance carrier for the decedent, filed a complaint in intervention against the City wherein it sought recovery of benefits paid or to be paid by it as a result of the fatal injuries received by the decedent. Prior to the trial the plaintiffs dismissed their action, without prejudice, as to Weber, and the plaintiff in intervention dismissed its action against the City. The jury returned a verdict in favor of the City and against the plaintiffs by a 10 to 2 vote, and judgment was entered on the verdict. The plaintiffs appeal from the judgment.

The Evidence

At the time of his death, Arthur O. Dillenbeck was the president, and owned 50 percent of Dillenbeck-Galavan Incorporated, a trade advertising firm, from which he received a salary of $24,875 for the year preceding his death. At pretrial it was agreed that the accident out of which the action arose occurred on January 22, 1962, at approximately 2 p. m., at the intersection of Wilshire Boulevard and Hobart Boulevard in the City of Los Angeles; the area where the accident occurred was a business area, and at the time of the accident it was raining and the streets were wet; the decedent was operating a 1961 Oldsmobile in a northerly direction on Hobart Boulevard and Abraham Weber was operating a city owned, 1960, black and white Plymouth police vehicle in an easterly direction on Wilshire Boulevard; as a result of the collision, Arthur O. Dillenbeck received in juries from which he died on January 24, 1962; he was 51 years of age at the time of death; Margaret H. Dillenbeck, 51 years of age, was the wife of the decedent, and Timothy Owen Dillenbeck, 14 years of age, was the son of the decedent. There appears to be no dispute that at the time of the accident Weber was driving the police vehicle in response to a police radio broadcast for all units in the area to respond to a call designated as a ‘211, Silent, at the bank, 3327 Wilshire Boulevard, Code 3.’ Translated, this refers to a silent alarm involving a robbery at the designated premises. He was proceeding east on Wilshire Boulevard with both the red lights and the siren on his vehicle activated and operating. There was evidence that the windows on the Dillenbeck vehicle were closed at the time of the impact, the windshield wipers were operating, and the radio was playing in a normal tone, neither soft nor extra loud. The point of impact was determined to be 28 feet south of the north curb of Wilshire Boulevard, a street 72 feet wide at this point, and 18 feet west of the east curb of Hobart Boulevard. No skid marks left by either vehicle were noted. A number of witnesses testified that at the time of the accident the traffic control light at the intersection was green for Dillenbeck who was traveling north on Hobart Boulevard into the intersection, and that such light was red for Officer Weber, who entered the intersection from the west and who was traveling east on Wilshire Boulevard. A large office building was situated on the southwest corner of the intersection. Officer Weber testified that for approximately four blocks west of the point of impact up to such point the speed of his vehicle was a constant 30 miles per hour; he was aware of the signals at the intersection but did not observe their changing as he approached it; during the last block of his approach he could not state what the condition of the signal was; during the last half block of his approach he was watching for movement in the intersection; he observed at least six eastbound cars getting out of his was as he approached the intersection. At the trial, Weber testified that as he approached the intersection his view of the south half of Hobart Boulevard was partially obstructed. In his deposition he stated that when he was at a point 200 feet away from the intersection, his view of the traffic on Hobart Boulevard was obstructed by vehicles stopped in the eastbound lanes of traffic; his view of the south half of the intersection was almost completely obstructed. Weber testified that a good car length separated his vehicle and the Dillenbeck vehicle when he first observed the latter.

There was the usual variance in the testimony of the witnesses as to their ability to hear the siren of the police vehicle. This variance was attributable to the location of the witness in the area and whether the witness was riding in a vehicle or was a pedestrian. There was also the usual conflict in the testimony of the witnesses as to the speed of the police vehicle as it approached the intersection and at the time of impact. It would serve no useful purpose to detail these conflicts here.

The Contentions

The sole assignment of error is that ‘The trial court committed reversible error in refusing to admit into evidence Los Angeles Police Department Training Bulletins covering Code 3 procedures and in refusing to permit examination of Officer Weber on his training and knowledge of there rules.’

The Law

The operator of an authorized emergency vehicle (Veh. Code § 165), driving such vehicle in response to an emergency call (Veh. Code § 21055), must use ‘that care consistent with the exercise of ordinary prudence in all the prevailing circumstances, including those circumstances manifest at the time of an emergency call. The question to be asked is what would a reasonable, prudent emergency driver do under all of the circumstances, including that of the emergency. In no event, however, can a municipality justify an arbitrary exercise of emergency privileges conferred by statute.’ (Torres v. City of Los Angeles, 58 Cal.2d 35, 51, 22 Cal.Rptr. 866, 876.)

The rules of an employer requiring an employee to take certain action or precaution under specified conditions in the conduct of the employer's business are admissible in evidence as bearing on the standard of care the employer thought appropriate to insure the safety of others. While a violation of such rule would not constitute negligence per se, it would be a circumstance for the jury to consider on the issue of the employer's negligence. (Powell v. Pacific Electric Railway Co., 35 Cal.2d 40, 46, 216 P.2d 448; Simon v. City and County of San Francisco, 79 Cal.App.2d 590, 597, 180 P.2d 393; 29 Am.Jur.2d, Evidence § 445.)

The plaintiffs' assignment of error relates to the trial court's refusal to admit in evidence plaintiffs' exhibits 2 and 3 for identification. The plaintiffs contend that the contents of these exhibits constitute rules promulgated by the City for the conduct of its police officers in operating city owned police vehicles while on an emergency call.

The term rule as applied to the question here under consideration means an express direction by an employer to its employees requiring certain conduct on the part of the employee in connection with the employer's business, under specified circumstances. Unless the expression meets with these requirements it cannot be binding upon the employer as a standard of care thought appropriate to insure the safety of others. (See 77 C.J.S. Rule p. 544.)

We have examined both exhibits 2 and 3 for identification. Exhibit 2 for identification is a small paperback pamphlet containing an introduction numbered paragraph I. The remaining nine paragraphs are devoted to what may be described as advice concerning the civil liability of the employee and the City of Los Angeles for the negligent operation of a city owned vehicle; the unauthorized use of city owned vehicles; the requirement to notify the complaint board in case of accident resulting in damage; defense of civil actions by the City Attorney; circumstances exempting police officers from obeying ‘Rules of the Road.’ The latter subject is discussed in paragraph number VI in the pamphlet. That paragraph sets forth the substance of old section 454 of the Vehicle Code, now section 21055 of the Vehicle Code, and contains explanatory and instructive matter as to the application of the section to city owned and operated emergency vehicles. Paragraph number VII of the pamphlet relates to the speed of the emergency vehicle and is generally illustrative of the overall content of the document.1 Paragraph VIII contains a discourse on the subject of ‘Exemption from Liability for Civil Damages' and refers to the provisions of both sections 454 and 401 of the Vehicle Code; it suggests that the provisions of section 401 of the Vehicle Code do not purport to relieve the police officers from possible criminal liability under section 193 of the Penal Code; the paragraph quotes an excerpt from the case of Lossman v. City of Stockton, 6 Cal.App.2d 324, 44 P.2d 397, as having a bearing upon the sound public policy recognized by the Legislature in the enactment of section 401 of the vehicle Code. Paragraph number IX of the pamphlet quotes old section 672 of the Vehicle Code, now section 21057 of the Vehicle Code, which imposes certain restrictions upon the conduct of a police officer when serving as an escort to any vehicle. Paragraph X is entitled ‘Conclusion,’ and contains general suggestions as to how a police officer will perform his duty best in responding to an emergency call. The document indicates that it was reprinted in April 1948.

Plaintiffs' exhibit 3 for identification consists of nine sheets of paper bearing dates from February 2, 1949, to February 14, 1949. Each sheet bears the title in bold print at the top, ‘Daily Training Bulletin.’ These documents contain material which is informative and instructive in nature. They appear in the form of written lectures explaining the law as applied to emergency vehicles; giving the results of comparative tests conducted by skilled members of the police department to determine distances at which a fender mounted siren could be heard; station that buildings are barriers which greatly diminish siren noise and recommending a speed of 15 miles per hour for an emergency vehicle proceeding against a traffic control device through a blind intersection. This latter statement and recommendation is found in one of three subdivisions under a paragraph entitled ‘Conclusion: (Field tests with under-the-hood siren).’ The particular daily training bulletin on which the foregoing is found bears date February 9, 1949, and concludes ‘This lesson was prepared from field tests conducted under the supervision of Mr. Fred Crowder, Chief Radio Engineer, Radio Technical Division and through the cooperation of Newton Street Division.’

In order to buttress their contention that exhibits 2 and 3 for identification contain rules specifically direction police officers of the defendant City in their conduct while responding to emergency calls, the plaintiffs have lifted portions of sentences out of context and have ascribed to the language contained in such selected portions a result never intended by the authors. We find nothing in the two exhibits marked for identification from which it can be held that either of them constitute a rule or a compilation of rules expressly directing members of the defendant City's police department in their conduct in responding to emergency calls.

The documents not having contained rules, but being only informative and educational in character, the City was not bound by them as evidence bearing on the standard of care the employer thought appropriate to insure the safety of others, and the court's refusal to receive the exhibits in evidence, and its refusal to permit the plaintiff to examine Officer Weber concerning their content, under these circumstances, was not error.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  ‘Speed. It is seldom, if ever, that an officer is justified by the emergency nature of the call in traveling at a speed greater than the district speed. There may, of course, be circumstances which would justify higher speeds. They must be exceptional and of a character which will unequivocally outweigh the additional hazard of such operation and the additional uncertainty of reaching the scene. Of course, when pursuing an actual or suspected violator of the law the speed necessary in the proper performance of official duty is largely determined by the violator being pursued.‘The primary thing accomplished by the use of the siren is clearing the roadway and thereby gaining the right of way so that stopping and unusually slow speed are avoided.’

FRAMPTON, Associate Justice pro tem.* FN* Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

FORD, P. J., and COBEY, J., concur.