Bauer v. Jackson

• Decision Date: 17 February 1971
• Citation: 15 Cal.App.3d 358,93 Cal.Rptr. 43
• Court: California Court of Appeals Court of Appeals
• Parties: Raymond BAUER et al., Plaintiffs and Appellants, v. Harris D. JACKSON et al., Defendants and Respondents. Civ. 9627.

Page 43

93 Cal.Rptr. 43

15 Cal.App.3d 358

Raymond BAUER et al., Plaintiffs and Appellants, v. Harris D. JACKSON et al., Defendants and Respondents.

Civ. 9627.

Court of Appeal, Fourth District, Division 2, California.

Feb. 17, 1971.

[15 Cal.App.3d 361] Jones & Weldon and Samuel Schekman, Norwalk, and Leonard Sacks, Pico Riviera, for plaintiffs and appellants.

Thompson & Colegate and Bruce Morgan, Riverside, Henry F. Walker and Abe Mutchnik, Los Angeles, for defendants and respondents.

OPINION

TAMURA, Associate Justice.

Plaintiffs engaged the services of defendant Jack Farnell, doing business as Los Angeles Turf Express, to transport six race horses from the Pomona Fair Grounds in Los Angeles County to Phoenix, Arizona. En route to Phoenix the truck transporting the horses collided with a vehicle operated by a Mrs. Kyles. Plaintiffs brought the present action against Farnell, his truck driver (Jackson), Mrs. Kyles, and a passenger in Mrs. Kyles' vehicle to recover damages for injuries allegedly suffered by the horses as a proximate result of the collision.

Defendants Farnell and Jackson interposed a special defense alleging that under the terms of the shipping contract their liability was limited to a declared value of $200 per horse. This defense was severed from other issues and, over plaintiffs' objection, tried by the court without a jury. The court determined that plaintiffs were bound as a matter of law by the contractual provisions limiting the carrier's liability and that consequently recovery against Farnell and Jackson could in no event exceed $200 per horse.

The remainder of the trial was bifurcated and the liability issue was tried to a jury. The parties tried the issue on the assumption that plaintiffs had the burden of proving that damage to the shipment was caused by the negligence of the defendants. Plaintiffs introduced portions of Mrs. Kyles' deposition and brief testimony from an 'accident reconstruction expert.' The evidence revealed the following: The shipment of horses left the Pomona Fair Grounds in a Los Angeles Turf Express truck on the night of October 3, 1965. The accident occurred on Interstate Highway 10 between Blythe, California, and Parker, Arizona, at about 1:30 a.m. on October 4. Interstate 10 was a two-lane paved highway with a four-foot shoulder on each side. Mrs. Kyles was westbound en route to Los Angeles from Parker, Arizona. As she approached a bridge which spanned a wash, she saw an oncoming truck veer across the center line as it crossed the bridge and then attempt to return to its lane. She moved over to the right side of her lane as far as possible but as she crossed the bridge her vehicle was struck by the rear of the truck. There had been no intervening vehicles for about one and one-half miles. There was some confusion in Mrs. Kyles' testimony as to whether the headlights on her car were on low beam; at one point she testified she lowered her lights about a mile before the accident, but at another point she testified that she lowered her headlights when she first observed the truck as it was about to cross the bridge.

On the foregoing evidence plaintiffs rested. All defendants moved for a nonsuit. The court granted the motion as to Mrs. Kyles and the occupant of her vehicle, but, after permitting plaintiffs to reopen to introduce additional evidence, denied the motion as to defendants Farnell and Jackson. The defense thereupon rested without putting on any evidence. Plaintiffs moved for a directed verdict contending that the doctrine of res ipsa loquitur was applicable and that, absent an explanation from defendants as to the cause of the accident, the carrier's liability was established as a matter of law. The motion was denied and the cause was submitted to the jury. Following a defense verdict, plaintiffs unsuccessfully moved for a judgment notwithstanding the verdict and for a new trial.

The present appeal only concerns the judgment in favor of defendants Farnell and Jackson. ¹

Plaintiffs' principal contentions are: (1) The court erred in denying them a jury trial on the question whether they were bound by the terms of the shipping contract limiting the carrier's liability and (2) under applicable federal law pertaining to interstate motor common carriers, the evidence adduced on the liability issue established defendants' liability as a matter of law.

Defendants not only contend that the court correctly decided the special defense, they urge: (1) plaintiffs, having elected to try the liability issue on the theory of common law negligence, are estopped from asserting for the first time on appeal that the defendants were liable as a common carrier, without fault; and (2) in any event, where shipment of livestock is involved, the burden is on the shipper to prove that injury to the animals occurred through the carrier's negligence. On the foregoing premises, defendants urge that plaintiffs' failure to prevail on the liability issue rendered the correctness of the court's ruling on the special defense academic.

The crucial issues, therefore, are: (1) Whether the court erred in ruling as a matter of law that the shipping contract effectively limited plaintiffs' recovery to $200 per horse, and (2) if so, whether the error requires reversal of the judgment. From the analysis which follows we have concluded that both issues must be answered in the afirmative.

I

In the court below plaintiffs demanded a jury trial on the special defense on the ground it presented factual as well as legal issues. The court, over plaintiffs' objections, decided the special defense as a matter of law. In so doing, the court erred.

The pertinent evidence on the trial of the special defense consisted of depositions of Mr. Vizcaya (plaintiffs' horse trainer) and of Mr. Fator (defendants' representative), together with brief testimony from defendant Farnell.

In his deposition Mr. Vizcaya testified: Several days before October 3 he made arrangements through Mr. Fator to have Los Angeles Turf Express transport the horses to Phoenix; there was no discussion concerning value, limitations on liability, or rates, other than the fact that the charge would be $50 per horse; defendants' truck arrived at the Pomona Fair Grounds about 9:00 p.m. on October 3; after the animals were loaded on the truck--a process which took about 45 minutes--defendants' driver asked him (Vizcaya) to sign a document; since the truck was about to depart, he did not have an opportunity to read the document; he did not know what he was signing and neither knew nor was told that the document contained a declaration of value for the horses and provisions limiting the carrier's liability; and he was not given a copy of the shipping document. On cross-examination he testified he had previously shipped horses by Los Angeles Turf Express.

Mr. Fator testified: Mr. Vizcaya contacted him two or three days before October 3 to arrange for the shipment; there was no discussion concerning value or rates other than that the charge would be a flat $50 per horse; on the afternoon of October 3 he (Fator) filled out the shipping document and inserted in a space provided the figure '$200' as the declared value of each animal; he signed the contract and gave it to the driver with instructions to have the shipper sign it; it was his (Fator's) practice to insert the figure $200 as the declared value of horses in all contracts for shipment of horses by Los Angeles Turf Express unless the shipper requested a higher valuation.

Defendant Farnell testified he published and filed a tariff schedule with the Interstate Commerce Commission and had been issued a rate order authorizing the establishment and maintenance of rates dependent upon declared value of the shipments. Certified copies of the tariff schedule and rate order were introduced into evidence. Farnell admitted that plaintiffs were not furnished a copy of the shipping document until after the accident had occurred.

The printed shipping contract signed by Mr. Vizcaya contained a recitation that the shipper, before delivering the animals to the carrier, demanded to be advised of the rates to be charged, was advised by the carrier that the rates depended upon value declared by the shipper, and was offered a choice of rates dependent upon value in accordance with the rate schedule set out in the contract. The document contained a box in which appears the following statement: 'The agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding $_ _ per animal on horses and not exceeding $_ _ for the personal effects of each attendant.' Mr. Fator inserted in the blank spaces the figure '200' as the value per animal and '50' as the value of the personal effects.

Section 5 of the shipping contract provided in pertinent part: '* * * The Shipper hereby releases and discharges the Company from all liability for delay, injuries to or loss of said animals and paraphernalia, from any cause whatever, unless such delays, injury or loss shall be caused by the Company or by the negligence of its agents or employees, and in such event the Company shall be liable only to the extent of actual damage sustained, but in no event to an amount for an animal or paraphernalia in excess of its value as declared by this contract. * * *'

Section 8 of the contract provided in pertinent part: 'The Shipper agrees that as a condition precedent to recovery hereunder for loss or injury or damage to or delay in delivery of this shipment, such loss, injury, damage or delay shall be proved by the Shipper to have been caused by negligence of the carrier, * * *'

The shipment in question being interstate, the rights and liabilities of the parties must be governed by applicable federal statutes as interpreted by federal tribunals. (Missouri P.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S.Ct. 1142, 1144, 12 L.Ed.2d 194, 197; Adams Express Co. v. Croninger, 226...