Gotcher v. Metcalf

• Decision Date: 27 March 1970
• Citation: 85 Cal.Rptr. 566,6 Cal.App.3d 96
• Court: California Court of Appeals Court of Appeals
• Parties: Gordon J. GOTCHER et al., Plaintiffs, Respondents and Cross- Appellants, v. Curtis E. METCALF, etc., Defendant, Appellant and Cross-Respondent. Civ. 1110.

Page 566

85 Cal.Rptr. 566

6 Cal.App.3d 96

Gordon J. GOTCHER et al., Plaintiffs, Respondents and Cross- Appellants, v. Curtis E. METCALF, etc., Defendant, Appellant and Cross-Respondent.

Civ. 1110.

Court of Appeal, Fifth District, California.

March 27, 1970.

Rehearing Denied April 24, 1970.

Hearing Denied May 21, 1970.

[6 Cal.App.3d 98] Panattoni, Farrell & Gibbert, by Adon V. Panattoni, Sacramento, for plaintiffs, respondents and appellants.

Hardin, Fletcher, Cook & Hayes, Oakland, by Cyril Viadro, San Francisco, for defendant, appellant and respondent.

OPINION

COAKLEY, Justice.

Helen L. Gotcher was killed in a midair collision between a single-engine Piper Comanche and a single-engine Beechcraft Debonair. The jury returned a verdict for the defendant, and judgment was entered accordingly. Plaintiffs moved for a new trial upon numerous grounds. The motion was granted on the ground of 'irregularity in the proceedings of the adverse party as shown in the record.' (Code Civ.Proc. § 657, subd. (1).) The reason given was that the defendant's counsel 'without prior consultation and/or approval of the court, read certain proposed and improper instructions to the jury, * * * and in an improper manner urged the jury to consider the correlative rights and duties of defendant and the pilot of the airplane in which decedent Helen Gotcher was riding, the cumulative and net effect of which was misconduct, having prejudicial effect upon the verdict. * * *' The defendant appeals from this order. Plaintiffs cross-appeal from the judgment contending that the court erred in refusing to instruct on the doctrine of res ipsa loquitur as requested by the plaintiffs.

We first consider the alleged misconduct of defendant's counsel on which the new trial was predicated.

In his argument to the jury, counsel read certain instructions which he advised the jurors he believed the court would give them. Counsel for the plaintiffs objected, and his objection was overruled. Defense counsel next discussed the doctrines of negligence and ordinary care in relation to the evidence, paraphrasing but not reading directly from the instructions which the court later gave. He then told the jurors, that they would 'also be instructed that the Federal Aviation Regulation Right-of-Way Rules, which were in effect at the time, read as follows. * * *' Counsel thereupon read a section of the General Operating and Flight Rules of the Federal Aviation Regulations dealing with right of way, and the converging and overtaking of planes in flight, following which he commenced to discuss the applicability of the regulation he had read to the evidence. At that point, the court declared the noon recess. Outside the presence of the jury there was a long colloquy initiated by the court concerning the court's uncertainty as to particular instructions which had been proposed, and the propriety of defense counsel arguing to the jury the alleged negligence of the deceased pilot, since plaintiffs' decedent could not be charged with such negligence. On the day preceding the commencement of oral argument, i.e., May 1, 1967, a conference on proposed instructions had been held between court and counsel. The record of that conference, if one was made, is not before us. However, from the reporter's transcript of what transpired on May 2, it is apparent that when the conference on instructions was adjourned on May 1, counsel for both parties were under the impression that all questions concerning disputed instructions had been resolved by the court, and that an instruction or instructions on Federal Aviation Regulations on right of way and related subjects would be given, albeit that counsel for plaintiffs was opposed to the giving of the instruction later read to the jury by defense counsel. The next morning, May 2, 1967, a brief conference was held in chambers. The only subject of that conference was the use of the Present Value of the Dollar Table (BAJI 1967 Supp. p. 146). Counsel for plaintiffs then made his opening statement, followed by defense counsel, whose argument was interrupted by the noon recess and for further conference on instructions which was called on the court's initiative following the recess. From the long colloquy that took place at that conference, it is clear (1) that the court was most uncertain as to what instructions, if any, should be given on Federal Aviation Regulations, (2) that both counsel believed that the court had decided on May 1 to give one or more instructions on said regulations, and (3) that respective counsel again urged the court to give the instructions which he offered and to reject those offered by opposing counsel with reference to Federal Aviation Regulations.

Unfortunately, the court had failed to inform counsel at either of the conferences which immediately preceded oral argument (afternoon of May 1 and morning of May 2) that there was any uncertainty as to which of the disputed instructions the court proposed to give, refuse, or modify. Instead, the court directed counsel to proceed with oral argument. The confusion, therefore, was caused by the court rather than by counsel. Having conferred with counsel on proposed instructions, it was the duty of the court to delay the argument until its own uncertainty was resolved and counsel advised accordingly. That is the purpose of Code of Civil Procedure section 607a, which provides in part that:

'Before the commencement of the argument, the court, on request of counsel, must: (1) decide whether to give, refuse, or modify the proposed instructions; (2) decide which instructions shall be given in addition to those proposed, if any; and (3) advise counsel of all instructions to be given.'

It is axiomatic that it is the function of the court, not counsel, to instruct the jurors as to the law of the case. However, it is the right of counsel, and therefore not misconduct, to discuss the law of the case in his oral argument, provided, of course, that his statement of the law is correct and is not at variance with instructions on the law which the court has advised counsel it will give. (See Hodges v. Severns, 201 Cal.App.2d 99, 114, 20 Cap.Rptr. 129.)

Assuming, arguendo, that defense counsel was guilty of the misconduct charged, we hold, notwithstanding, that such misconduct was not grounds for granting a new trial for these reasons:

(1) When the court reconvened following the second conference on May 2, it explained to the jurors that it was the court's responsibility to instruct them as to the law, that it does so after conferring with counsel, that it did not believe it would give them a particular instruction or two to which counsel for the defendant had referred, and that the jurors were to take their instructions from the court. We believe that this admonition cured any possible prejudicial error and that, in accordance with article VI, section 13, of the California Constitution, the judgment should not be set aside.

(2) There was no motion for a mistrial at any time by counsel for the plaintiffs, in the apparent belief that defense counsel's conduct, it error, was not prejudicial or that the court's admonition cured the prejudice. By failing to make a timely motion for a mistrial, the alleged misconduct was waived. (Hansen v. Warco Steel Corp., 237 Cal.App.2d 870, 878, 47 Cal.Rptr. 428, 48 Cal.Rptr. 164.)

We next consider the plaintiffs' cross-appeal predicated upon the court's failure to give a conditional res ipsa loquitur instruction as requested by the plaintiffs.

The fatal mid-air collision between the two airplanes occurred on January 1, 1965, at approximately 12:30 p.m. over Folsom Lake at an altitude of 2,500 to 3,000 feet. The visibility was excellent, and both pilots were experienced, with many hours of flying in both single and multiple engine aircraft. At the time of the collision, the two planes, each on pleasure and sight-seeing flights, had been in the air only a few minutes. As a result of the collision, the Comanche lost two or three yards of its right wing and plunged into the lake and was never recovered. The right half of the horizontal part of the tail of the Debonair was parted by the impact, but the plane managed to return to the Sacramento Airport.

At the trial, defendant, the pilot of the Debonair, said he did not see the Comanche before the accident; that it was his practice to look all around and that he always scanned the horizon, left, right and forward, under visual flight rules conditions. There was testimony that the defendant was pointing out the scenery and other points of interest to his two passengers shortly before the collision. Edward Johnson, a correctional officer at nearby Folsom Prison, testified that he was on tower duty when the two airplanes passed over the prison at approximately the same altitude and the same rate of speed. The airplanes were flying in the same general direction, with the Comanche in the lead by about 400 feet and to the Debonair's left by about 300 feet, and they seemed to be going on a trip together. Johnson said that after passing Folsom Prison the Comanche commenced a gradual turn to the right and had completed a half circle when the planes collided. Robert Stafford, who was 14 years old at the time of the accident, testified that he was less than a mile from the dam when he heard airplane engines, looked up and saw the Comanche coming down. He said it was in a fast spin, slowed into a very slow spin, and fell into the lake.

Under the facts, the trial court correctly declined to instruct on the doctrine of res ipsa loquitur.

Application of the doctrine of res ipsa loquitur traditionally requires the presence of three elements or conditions. They are: (1) the accident must be of a type which ordinarily does not happen unless someone is negligent; (2) the accident must not be due to any voluntary act on the part of the plaintiff; and (3) the accident must be caused by an agency or...