Buckley v. Chadwick

• Decision Date: 07 October 1955
• Court: California Supreme Court
• Parties: Dorothy BUCKLEY and Bruce Allen Buckley, a minor, by his guardian ad litem Dorothy Buckley, Plaintiffs and Appellants, v. Fred D. CHADWICK, Defendant and Respondent. L. A. 23492

Page 12

288 P.2d 12

45 Cal.2d 183

Dorothy BUCKLEY and Bruce Allen Buckley, a minor, by his guardian ad litem Dorothy Buckley, Plaintiffs and Appellants, v. Fred D. CHADWICK, Defendant and Respondent.

L. A. 23492.

Supreme Court of California

Oct. 7, 1955.

As Modified on Denial of Rehearing Nov. 4, 1955.

Russell H. Pray, Block & Dunbar, Samuel P. Block, Compton, Eric A. Rose, Long Beach, for appellants.

Parker, Stanbury, Reese & McGee and William C. Wetherbee, Los Angeles, for respondent.

SCHAUER, Justice.

In this wrongful death action plaintiffs, the surviving widow and minor son of Allen Buckley, deceased, appeal from an adverse judgment entered upon a jury verdict. During the trial the widow waived in favor of the son her rights to the proceeds of any recovery. We have concluded that plaintiffs' various contentions furnish insufficient grounds for reversal, and that the judgment should be affirmed.

The record on appeal consists of a clerk's transcript and a settled statement, prepared by plaintiffs, of oral proceedings at the trial. (See Rule 7, Rules on Appeal, 36 Cal.2d 8.) The statement comprises in part a narration of numerous facts and in part verbatim extracts 'from a partial reporter's transcript of oral proceedings.' From such statement it appears that the decedent, Allen Buckley, was in the business of contracting for the furnishing of dirt and other materials on construction jobs. He owned two dump trucks and rented at various times cranes and other equipment necessary in his business. On March 16, 1951, he and one McDonald entered into a partnership with each other to furnish certain dirt on a construction site for a third party and agreed to equal division of the profits. On the same day the two partners rented from defendant, also in the contracting business, a drag line crane, without an operator and on a 'bare rental basis.' The lease contract, which was oral, 'provided that said partnership provide an experienced oiler in the operation of the crane and also that Mr. McDonald would operate it.' Defendant stated at that time that the crane was in first class condition and had been worked on since it came off the last job. McDonald transported the crane to a dirt pit where the partnership used it for the loading of dump trucks.

On April 19, 1951, while McDonald was operating the crane to deposit dirt in a dump truck, the boom cable of the crane broke and the boom fell, striking and killing Buckley, who was standing on the running board of the truck. The one-half inch boom cable broke inside the cab of the drag line crane at a place on the cable that was rolled on, around, and off the drum as the boom was raised and lowered in operation.

The evidence conflicts sharply concerning what caused the cable to break. The settled statement recites that 'At the time of the accident said crane was being operated and maintained by said partnership through Mr. McDonald and said oiler' provided by the partnership. There was expert testimony that at the point of break the cable had been worn and defective for some time and was 'worn out a long time age,' and that such condition could not have developed during the period the partnership had used the crane. Conflicting evidence was that defendant Chadwick and his mechanic had inspected the cable closely before renting it out to the partnership and that it was then in good condition. McDonald testified that it was the oiler's duty to 'oil the machine' but it was not his duty to inspect the cable and that if a strand of the cable 'is broken in view, either I or the oiler would have caught it,' while defendant's expert witnesses stated that the oiler should have inspected the cable every day and oiled it at intervals, and, further, that 'the ends of the broken cable * * * where the break occurred showed abrasive damage resulting from faulty winding and unwinding' of the cable and that 'if McDonald and the oiler had allowed the cable to cross-wind or overlap on the drum during the six days they were using the crane, enough damage could have been done in one second of use under strain to have caused the cable to break.'

Plaintiffs' complaint is framed in two counts, one for an alleged breach of warranty and the other for alleged negligence of defendant crane owner. Defendant answered with a general denial, and also pleaded contributory negligence of the deceased, and unavoidable accident. As grounds requiring reversal of the judgment in defendant's favorplaintiffs urge error in jury instructions, and also that the court erroneously prevented the exercise of peremptory challenges by plaintiffs in the selection of the jury.

The court instructed the jury that negligence on the part of the deceased Buckley or of his agent which proximately contributed to the death would bar recovery against defendant, that the evidence established that the crane was being operated and maintained by agents of the deceased, that McDonald was such an agent, that if the jury found 'that there was any negligence on the part of one or both of Buckley's agents, McDonald and the oiler, which contributed in any degree as a proximate cause of the accident,' then plaintiffs could not recover, and that the 'reason for the rule is that negligence of an agent within the course and scope of his employment is imputed to his principal.'

In reliance upon Campagna v. Market St. Ry. Co. (1944), 24 Cal.2d 304, 307, 149 P.2d 281 (see also Bennett v. Chanslor & Lyon Co. (1928), 204 Cal. 101, 105, 266 P. 803; Bencich v. Market St. Ry. Co. (1937), 20 Cal.App.2d 518, 526), 67 P.2d 398, plaintiffs first contend that the instructions as to imputed negligence were erroneous because such defense was not pleaded in defendant's answer and therefore was not in issue. Plaintiffs first raised the point, however, on their motion for new trial, and the case was tried throughout upon the theory that the pleading was sufficient in this respect. Further, the record on appeal discloses no objection by plaintiffs to evidence relating to negligence of agents of the deceased. Under such circumstances, plaintiffs will be deemed to have waived the alleged pleading defect. (See Miller v. Peters (1951), 37 Cal.2d 89, 93, 230 P.2d 803; Vaughn v. Jonas (1948), 31 Cal.2d 586, 605, 191 P.2d 432; Hinkle v. Southern Pacific Co. (1939), 12 Cal.2d 691, 701, 87 P.2d 349; Swink v. Gardena Club (1944), 65 Cal.App.2d 674, 680-681, 151 P.2d 313; Simpson v. Bergmann (1932), 125 Cal.App. 1, 5-6, 13 P.2d 531; Resetar v. Leonardi (1923), 61 Cal.App. 765, 767, 216 P. 71.)

Plaintiffs also urge that there was no evidence that the oiler was an agent, servant or employe of the partnership or of the deceased. In addition to the rental contract provision that the partnership furnish an experienced oiler in the operation of the crane, the settled statement prepared by plaintiffs recites as indicated above that 'At the time of the accident said crane was being operated and maintained and said partnership through Mr. McDonald and said oiler.' McDonald, as a witness for plaintiff, testified, 'Q. Did you have someone else working there? A. I had an oiler. Q. And was he on the job as long as you were on the job? A. Yes.' Also, the trial judge in his memorandum opinion upon denying plaintiffs' motion for a new trial (which opinion is included in the settled statement) wrote that 'the case was tried and argued upon the assumption that such agency existed,' and that counsel for plaintiffs, when requested on oral argument to indicate 'evidence pointing to any inference other than the agency of the oiler * * * could point to none.' Plaintiffs do not claim such statements of the trial judge are incorrect, and on appeal have failed to point out or provide a record of any evidence which would support a finding that the oiler was other than an employe or agent of the partnership. Their contention on this point thus provides no ground for reversal. (See Brokaw v. Black-Foxe Military Institute (1951), 37 Cal.2d 274, 280, 231 P.2d 816; Philbrook v. Randall, 1924, 195 Cal. 95, 104, 231 P. 739; Bacon v. Grosse (1913), 165 Cal. 481, 490, 132 P. 1027; Cutting Fruit Packing Co. v. Canty (1904), 141 Cal. 692, 695-696, 75 P. 564; 4 Cal.Jur.2d 426, § 559, and cases there cited.) The quoted statements and testimony also establish that any negligence by McDonald or the oiler in operation of the crane was in the scope of their employment on behalf of the partnership; thus no error is shown in not submitting to the jury the issue of scope of employment.

Plaintiffs next urge that any negligence of an agent of the deceased is not imputable to an heir in a wrongful death action. The court, however, instructed the jury that if negligence on the part of the deceased or of his agent proximately contributed to the death, then recovery was barred. Very recently, after first pointing out the general principle that 'The relationship of joint venturers is that of a mutual agency, akin to a limited partnership,' we held that 'the negligence of one joint venturer or of his employes acting in connection with the joint venture is imputed to the other joint venturers.' (Leming v. Oilfields Trucking Co. (1955), 44 Cal.2d 343, 282 P.2d 23.) Applying the same rule here, it follows that any negligence of the partner McDonald or the oiler, an agent of the partnership, would be imputed to Buckley.

Plaintiffs also contend, in reliance upon a challenging article appearing in 42 California Law Review 310, authored by the learned Judge Paul Nourse of the Los Angeles Superior Court, that in any event contributory negligence (whether of the deceased, or imputed to him) is not a defense in a wrongful death action. Meeting the challenge, defendant urges, is the opinion of the equally learned trial judge delivered upon denying plaintiffs' motion for a new trial in the case, holding that the law is definitely settled to the contrary. Since the origin, development and acceptance of the rule...