Opinion
7-1-1953
ARMENTA et al. v. CHURCHILL et al. * Civ. 19331.
Victor C. Rose and Alfred M. Klein, Los Angeles, for appellants. Parker, Stanbury, Reese & McGee, Los Angeles, for respondents.
ARMENTA et al.
v.
CHURCHILL et al.
July 1, 1953.
Rehearing Denied July 28, 1953.
Hearing Granted Aug. 27, 1953.
Victor C. Rose and Alfred M. Klein, Los Angeles, for appellants.
Parker, Stanbury, Reese & McGee, Los Angeles, for respondents.
SHINN, Presiding Justice.
The heirs of Amador Armenta, Sr., brought this cause to recover damages for alleged wrongful death. Defendants are Dale and Alece Churchill, husband and wife. In a jury trial verdict and judgment were for defendants and plaintiffs appeal.
The complaint was in two causes of action. In the first it was alleged that defendant Dale Churchill, in driving a truck as the agent and employee of his wife, acting within the scope of his agency and employment, negligently backed it into Mr. Armenta, Sr., causing his death. In the second cause of action it was alleged, in addition to the foregoing, that Dale was operating the truck with the permission and consent of his wife and that she was negligent in entrusting the truck to her husband, having knowledge that he was a careless and reckless driver. By their answer defendants admitted that Dale was the agent and employee of Alece, acting within the scope of his employment, and during the trial defendants stated that if judgment should go against either defendant it should go against both. This oral admission, however, was unnecessary in view of the admissions of the answer.
The fatal accident happened on Tyler Avenue, a county highway in Los Angeles County, where the street was being resurfaced and widened. Warren Southwest, Inc., a paving concern, was spreading 'black top,' an asphaltic pavement. The paving material was being distributed by a mobile machine known as a 'Barber-Green.' This machine travels while in operation at about two miles per hour and needs to be fed a constant supply of paving material. Several trucks were required to bring the necessary supply from a distance of about six miles. Dale, driving one of these trucks southward on Tyler Avenue, passed a Barber-Green which was headed south, and stopped 75 or 100 feet in front of it. There was another truck unloading at the time. As the Barber-Green advanced slowly Dale kept his truck in front of it, and when the other truck had left, commenced backing toward the Barber-Green. Armenta, Sr. was a 'stringman,' whose duty it was to stretch a cord in front of the Barber-Green to lay out a straight course for it to follow. He was engaged in laying out the string with his back to defendants' truck at the time he was struck and run over. He was then about 30 or 40 feet in front of the Barber-Green and four feet east of the western edge of the paving area. Dale was standing with one foot on the throttle and the other on the running board of his truck, guiding it and looking to the rear. He could not see the right rear of the truck, which was the part that struck and ran over Armenta.
It is unnecessary to follow the argument of appellants that Dale was guilty of negligence. The implied finding of the jury was that he was not negligent and the sufficiency of the evidence to support this finding is not questioned.
Appellants' first contention is that they should have been permitted to prove, as they offered to do, that Dale had been found guilty of some 37 traffic violations, including a conviction of manslaughter, that Alece had knowledge of these facts and was negligent in permitting him to operate the truck. An objection to the offer of proof was sustained. There was no error in this ruling. In Fuentes v. Tucker, 31 Cal.2d 1, 187 P.2d 752, the point in question here was decided contrary to the contention of the appellants. That action was by parents for the death of minor sons. The defendant answered, admitting liability. Plaintiffs, over defendant's objection, were permitted to prove the circumstances of the accident including the fact that defendant was intoxicated, and that the children were thrown eighty feet by the force of the impact. The court said, 31 Cal.2d at page 4, 187 P.2d at page 754: 'Evidence which is not pertinent to the issues raised by the pleadings is immaterial, and it is error to allow the introduction of such evidence. [Citations.] * * * The defendant here by an unqualified statement in his answer admitted liability for the deaths of the children, and the sole remaining question in issue was the amount of damages suffered by the parents. In an action for wrongful death of a minor child the damages consist of the pecuniary loss to the parents in being deprived of the services, earnings, society, comfort and protection of the child. Bond v. United Railroads, 159 Cal. 270, 285, 113 P. 366, 48 L.R.A.,N.S., 687, Ann.Cas.1912C, 50. The manner in which the accident occurred, the force of the impact, or defendant's intoxication could have no bearing on these elements of damage. The evidence, therefore, was not material to any issue before the jury, and its admission was error.' Here, the question of the liability of the wife for the acts of her husband was completely eliminated by a clear and unequivocal admission in the pleadings. Alece's liability depended upon proof of Dale's negligence, and if he was not negligent in operating the truck it was immaterial whether his wife was negligent in permitting him to operate it. It is not claimed that the evidence was necessary to prove the responsibility of the wife for the acts of her husband. Any such claim would be refuted by the admissions of the answer. The sole contention of plaintiffs is that since they alleged the facts sought to be proved they had a right to prove them, notwithstanding the admissions of the answer. The law is settled to the contrary. The purpose of evidence is to enable the court to determine the issues and it would be indefensible to receive evidence which could serve no purpose other than to distract the minds of the jurors from the issues and arouse feelings against one or more of the parties. Evidence of many traffic violations by Dale Churchill, including the claimed conviction of manslaughter, would have tended to prejudice the jury against him, and against his wife also, for permitting him to use the truck. Under the circumstances it also would have tended to confuse the jury in considering the evidence upon which the question of actionable negligence was to be determined, namely, the conduct of the driver at the time of the accident. We hold that the offer of proof was properly rejected under the rule that the evidence should be limited to the issues which are for trial and decision.
The second point is that the court should have instructed the jury in the language of Construction Safety Order 1753(b) of the Administrative Code. Such an instruction was requested and refused. The court instructed that section 671(b) of the Vehicle Code, then in effect, provided that: 'The driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn. Such horn shall not otherwise be used.' Defendants resist the claim of error upon several grounds, namely: (1) The regulation is unreasonably discriminative in that it applies only to trucks hauling certain materials; (2) it is fatally uncertain in that it does not define the term 'construction materials' and it would be impossible for a driver to know whether it included only heavy materials, such as concrete, lumber and the like, but also all small articles of hardware and like materials which enter into construction, and (3) the regulation attempts to invade the field of legislation which is preempted by section 671(b) of the Vehicle Code. Although we find merit in the first and second objections, we pass them as not requiring decision. We do not believe the safety order could be given effect in view of the provisions of section 671(b).
The safety order is contained in Title 8 of the Administrative Code, entitled 'Construction Safety Orders.' Section 1506 of Article 2, Title 8, provides: 'These orders shall apply to the excavation, construction, alteration, repairing, renovating, removal or wrecking of buildings or other structures.' If we assume, without deciding, that the order relates to the surfacing of highways, it is clear that if it purports to apply to highway operated trucks it would be in a field covered by state law and in conflict therewith.
Section 671(b) of the Vehicle Code covers the entire subject of giving signals by blowing a horn of a vehicle traveling on a highway. Not only does it require that a horn be blown when reasonably necessary to insure safe operation, but it prohibits its use under other circumstances. Thus the regulation, in addition to invading the field of state legislation, would be in conflict with it insofar as it would require the blowing of a horn in backing up on a highway under all conditions, even though that warning was not reasonably necessary to insure safety. A field of the law which is entirely covered by state legislation is not subject to legislation by a municipality. This subject was thoroughly explored and the cases reviewed in Pipoly v. Benson, 20 Cal.2d 366, 125 P.2d 482, 147 A.L.R. 515, and Agnew v. City of Los Angeles, 110 Cal. App.2d 612, 243 P.2d 73.
Plaintiffs say that safety order 1753(b) is broader than section 671(b) in that the latter is limited by section 616, Vehicle Code, to the operation of vehicles on a highway while the former governs the equipment of vehicles and its use whether it be on or off a highway. Therefore, they contend, the safety order is valid and has application here. We cannot agree. It may be that the order was intended to apply under all conditions. Granted that it is a proper regulation of trucks when not on a highway, there was uncontradicted testimony of a county highway engineer that in September, 1950, when the accident occurred, Tyler Avenue was a county highway, and there was other evidence to the same effect. Plaintiffs have contended throughout that it was a highway and there was no evidence to the contrary.
The reasons which preclude municipal legislation in a field covered by state legislation have application to regulations and orders of administrative agencies. Government Code, sec. 11374; 2 Cal.Jur.2d 154.
A further assignment of error is the refusal of the court to admit into evidence a certified copy of Churchill's chauffeur's license by which he was authorized to operate a motor vehicle of not over 6,000 pounds, unladen weight. The truck he was driving weighed, unladen, 13,000 pounds. The Department of Motor Vehicles has authority to issue either a general chauffeur's license or a restricted chauffeur's license, the latter showing the type of vehicle or combination of vehicles the licensee is licensed to operate. Veh.Code, sec. 273. Under section 272 the department shall issue to an applicant found to be entitled thereto an operator's or chauffeur's license 'as applied for.' Under section 265, 'An applicant for a chauffeur's license may state the type of vehicle or combination of vehicles he desires to operate.' Plaintiffs argue that the fact that Churchill held a license to operate a vehicle with an unladen weight of only 6,000 pounds was evidence that the Motor Vehicle Department had determined that it would be unsafe for him to operate a vehicle of greater weight, and that such supposed ruling by the department would be some evidence of negligence. The court did not err in sustaining defendants' objection.
We understand the law to be as stated in Strandt v. Cannon, 29 Cal.App.2d 509, 518, 85 P.2d 160, 164; 'The weight of authority, as we see it, is that the operator's negligence is to be determined by the facts existing at the time of the accident, and whether the operator had a license to operate an automobile under the laws of this state is immaterial unless there is some causal relationship between the injuries and the failure to have a license or the violation of the statute in failing to have one', and in the concurring opinion of Justice Marks and Presiding Justice Barnard, 29 Cal.App.2d at page 520, 85 P.2d at page 165: 'In this kind of a case the courts are not interested in the competency or incompetency of a driver but only in his actions at the time and place of the accident.' Appellants' counsel stated to the trial court and now urges that it was to be presumed that the Motor Vehicle Department had determined that Churchill was not competent to drive a heavy truck. No such presumption existed, and even if that had been the opinion of some one in the department, evidence of the fact would have been no evidence at all of negligence. The fact that one was known to be a careless driver would be no better evidence that he was negligent upon a given occasion than would the fact that he was known as a careful driver be evidence that he was not negligent on that occasion. There was no causal connection between the fact that Churchill was driving a vehicle of a weight exceeding that permitted by his license and the accident which caused Mr. Armenta's death. It may be added that there was no evidence, and no offer to prove, that Churchill had applied for and been deied a license to operate a vehicle of greater weight than 6,000 pounds. When he applied for a license he may have stated in his application, as allowed by section 265, that he desired to operate the lighter vehicle. Also there was no evidence that he did not have an operator's license, and we think there was insufficient evidence to prove that he was a chauffeur, defined by section 71, Vehicle Code, as 'a person who is employed by another for the principal purpose of driving a motor vehicle on the highways and receives compensation therefor.' The evidence was that Churchill was in business for himself. He had purchased the truck himself, it was registered in his wife's name, but there was no evidence that he was driving the truck for his wife for compensation. If he was in business for himself, or jointly with his wife, and was not a chauffeur, as above defined, he was not required to have a chauffeur's license, even though he was using his wife's truck.
Appellants requested, and the court refused, an instruction based upon section 543 of the Vehicle Code, which provides: 'No person shall start a vehicle stopped, standing or parked on a highway nor shall any person back a vehicle on a highway unless and until such movement can be made with reasonable safety.'
'Highway' was defined in the unstructions in the language of section 81, Vehicle Code. Many of the instructions assumed that the accident occurred on a highway. In view of the evidence the jury could not have been in doubt as to that fact. The instructions as a whole clearly stated the principle that defendants' vehicle should not have been backed unless and until it could be done with reasonable safety. They made it clear that Churchill would have been guilty of negligence if he had moved his truck backwards when it was not reasonably safe to do so or without exercising ordinary care. We think plaintiffs would have gained nothing had the court instructed in the language of section 543 of the Vehicle Code. We do not discover any error in the court's refusal to admit into evidence a photograph of Mr. Armenta, taken during his lifetime.
The judgment is affirmed. The attempted appeal from the order denying motion for new trial is dismissed.
PARKER WOOD and VALLEE, JJ., concur. --------------- * Subsequent opinion 267 P.2d 303. 1 'Sec. 1753. Trucks. (b) Trucks used to haul dirt, rock, concrete or other construction material shall be equipped with a horn, bell or whistle on both the front and rear ends, or with a horn capable of emitting a sound audible under normal operating conditions from a distance of not less than two hundred feet (200') in the rear of the truck, provided, the warning will be sounded while the truck is backing up.'