SCHAFFER v. CLAREMONT COUNTRY CLUB (1959)

On petition for rehearing respondent argues that since we held the evidence sufficient to support a plaintiffs' judgment on the ground of attractive nuisance we should have affirmed following the rule stated in Brandes v. Rucker-Fuller Desk Co., 102 Cal.App. 221, 228, 282 P. 1009, 1012: ‘* * * even though the evidence may not be sufficient to sustain a cause of action * * * to which an instruction applies, a reversal may not be had upon that ground if the evidence as to other causes of action * * * is sufficient to sustain the verdict.’

This rule has frequently been announced in opinions in the District Courts of Appeal of which respondent cites 15. As so broadly stated it has not been applied in any recent opinion of the Supreme Court. In Nunneley v. Edgar Hotel, 36 Cal.2d 493, 500, 225 P.2d 497, 502, the question was presented to the Supreme Court and the counterargument was made that ‘there is no way of determining whether responsibility was laid upon each of them [defendants] because of general negligence, or violation of the statute.’ The court after finding that the erroneous instructions as to statutory duty only applied to one defendant was careful to point out that since the jury found against both defendants it was clear that the verdict could not have been based upon the erroneous instructions which only applied to one of the two held liable. 36 Cal.2d at pages 500–501, 225 P.2d at pages 501–502; cf. dissenting opinion in the same case, 36 Cal.2d 502, 225 P.2d 497.

It is the generally accepted rule that if the court cannot determine whether the jury based its verdict on her erroneous instructions or not the error must be deemed prejudicial. Edwards v. Freeman, 34 Cal.2d 589, 594, 212 P.2d 883; Huebotter v. Follett, 27 Cal.2d 765, 770–771, 167 P.2d 193; Oettinger v. Stewart, 24 Cal.2d 133, 140, 148 P.2d 19, 156 A.L.R. 1221; Davenport v. Stratton, 24 Cal.2d 232, 254, 149 P.2d 4.

Where the jury is erroneously instructed that the defendant was under a statutory duty the likelihood of the jury being prejudicially misled is increased by the fact that the statutory duty becomes the measure of care and if the jury finds a violation of the statute it need not concern itself with the further question of common-law negligence as measured by the conduct of that ideal concept the man of ordinary prudence.

So parallel with the cases relied on by respondent we find another group of cases holding that erroneous instructions applying incorrectly a statutory duty are prejudicial although the verdict would find support on the theory of common-law negligence. Westberg v. Willde, 14 Cal.2d 360, 369–371, 94 P.2d 590; Markwalder v. Leonhard, 152 Cal.App.2d 254, 256–259, 313 P.2d 200; Clark v. Pamplin, 147 Cal.App.2d 676, 679–680, 305 P.2d 950; Anderson v. Mothershead, 19 Cal.App.2d 97, 99, 64 P.2d 995; Adrian v. Guyette, 14 Cal.App.2d 493, 505–506, 58 P.2d 988; Elmore v. County of Lassen, 10 Cal.App.2d 229, 233–234, 51 P.2d 481; Johnson v. Gokey, 4 Cal.App.2d 497, 498–499, 41 P.2d 193; Pilcher v. Tanner Motor Livery, 138 Cal.App. 558, 560–561, 33 P.2d 58.

Under the circumstances of this case we cannot say that the verdict was not based on the instructions erroneously applying the statutory duty.

The petition for rehearing is denied.

DOOLING, Acting Presiding Justice.