Hensley v. Harris

• Decision Date: 19 June 1957
• Citation: 312 P.2d 414,151 Cal.App.2d 821
• Parties: Marvon J. HENSLEY, a Minor, by his Guardian ad litem, Roy Hensley, Plaintiff and Appellant, v. John Russell HARRIS et al., Defendants. Leslie H. Smith and Ernest G. Thorp, Individually and as co-partners, doing business as Smith & Thorp, Limited, a co-partnership, and John Russell Harris, Defendants and Respondents. Civ. 22081.
• Court: California Court of Appeals Court of Appeals

Page 414

312 P.2d 414

151 Cal.App.2d 821

Marvon J. HENSLEY, a Minor, by his Guardian ad litem, Roy Hensley, Plaintiff and Appellant, v. John Russell HARRIS et al., Defendants Leslie H. Smith and Ernest G. Thorp, Individually and as co-partners, doing business as Smith & Thorp, Limited, a co-partnership, and John Russell Harris, Defendants and Respondents.

Civ. 22081.

District Court of Appeal, Second District, Division 3, California.

June 19, 1957.

Rehearing Denied July 10, 1957.

Hearing Denied Aug. 13, 1957.

Julius W. Feldman and Eric A. Rose, Long Beach, for appellant.

Spray, Gould & Bowers, Los Angeles, for respondents.

SHINN, Presiding Justice.

Appeal by plaintiff from a judgment for defendants entered on a verdict in an action for damages for personal injuries arising out of a collision between an automobile and a truck.

The accident occurred about 4:45 p. m. on September 7, 1954, in an uncontrolled, blind intersection at Golden Avenue and 6th Street in Long Beach. Plaintiff was riding as a guest in an automobile driven by Donald Cory in a northerly direction on Golden Avenue. Defendant Harris, an employee of the other defendants, in the course of his employment was driving a truck west on 6th Street. The vehicles collided in the intersection. Plaintiff sued Harris and his employers but did not sue Cory. Defendants answered denying negligence but did not plead contributory negligence upon the part of plaintiff. They pleaded that the accident was unavoidable.

The only claim of error is the giving of two instructions. At the request of defendants the court gave this instruction: 'At the outset of this trial, each party was entitled to the presumptions of law that every person takes ordinary care of his own concerns and that he obeys the law. These presumptions are a form of prima facie evidence and will support findings in accordance therewith, in the absence of evidence to the contrary.' Defendant Harris testified: 'My recollection stops back from the intersection a bit'; I do not remember whether I ever looked south on Golden; my 'recollection stops some place back east of the entrance of the intersection'; I cannot recall anything further from the time my truck was about 50 feet east of the east entrance of the intersection; my 'recollection went blank'; I did not see the Cory car before the accident. Harris further testified:

'Q. [By Mr. Feldman, attorney for plaintiff] Then right at the time of the accident, after the accident, you didn't know whether you were involved in an accident with a car or a truck or jeep or what kind of a vehicle you were involved in in an accident? A. I had no idea.

'Q. When did you find out you were involved in this accident with the Mercury? A. I don't know. I don't remember.

'Q. Did you ever become conscious of any danger before the collision? A. No, I don't think so.

'Q. You can't recall becoming conscious of the fact that you were in danger, did you? A. No.

'Q. What is the next thing you did remember from the point you say your truck was at approximately 50 feet back from the east entrance of the intersection? A. I had the sensation of somersaulting with no support.

'Q. So from the time you were 50 feet back east of the intersection at the time you felt yourself somersaulting, you don't remember a thing? A. That is correct.

'Q. You didn't even know you had been in an accident, did you.

'Mr. Bradish: When?

'The Witness: When I was in the air.

'Q. By Mr. Feldman: That is right. A. No, I don't think so.

'Q. You don't recall hearing any crash or anything like that? A. No. I don't believe I heard any noise either.

'Q. You don't recall--did you lose consciousness at any time? A. I don't think I was ever unconscious, no.

'Q. Now from the scene of the accident or at the scene of the accident, do you recall seeing the car that was involved in the accident after you felt this sensation of somersaulting through the air? A. No, because I have got another blank in there where I don't remember anything that was going on.

'Q. From when to when? A. Between the time I was somersaulting and the time some woman was talking to me. I don't remember anything in between there.

'Q. Now, so, you never saw the car? A. No.'

A police officer called by plaintiff testified he had a conversation with Harris in a hospital on September 7, 1954, in which Harris said he did not notice the danger from the collision; he was going 25 miles an hour at the time and that Harris stated: 'I was coming west on 6th Street from Daisy, traveling approximately 25 miles per hour, when a station wagon or jeep made a U-turn in front of me. I then slowed down for him, and then he pulled over on the right side of the street and started going west on 6th. I took this movement from him as a signal for me to pass him. As I just cleared him, I was struck by a blue car.'

Plaintiff asserts that on this evidence it was error to give the instruction on presumption of due care. He argues the instruction should not be given 'where there was nothing in the record of the case to indicate any physical basis for a loss of memory in the presence of an admission that the defendant did not lose consciousness at any time, and that he gave a detailed report of the accident to the police officer immediately following the accident.' We do not agree with this contention. If the jury had believed the testimony of Harris it would not have been unreasonable to conclude therefrom that he had in fact suffered a loss of memory as to what took place while he was traveling the last 50 feet before the collision, and defendants would have been entitled to the benefit of the presumption. Scott v. Burke, 39 Cal.2d 388, 247 P.2d 313.

However, we agree with the further contention of plaintiff that it was a question of fact for the jury whether Harris had suffered a loss of memory. Defendants do not contend otherwise. They frankly and very properly say 'From the foregoing discussion it is clear that whether a party has sustained a genuine, rather than a pretended, loss of memory is a question of fact for the jury. If the jury believes that the loss of memory is genuine and that it resulted from the accident, then the presumption does apply.' They cite Napoli v. Hunt, 141 Cal.App.2d 782, 789, 297 P.2d 653 and other cases which clearly establish the correctness of this statement. Defendants do not contend that the presumption would have been applicable if the jury had determined that Harris had not suffered a loss of memory. Inasmuch as the question of Harris' claimed loss of memory was a vital factual question it was not only error but grave error to take that question from the jury. Zollers v. Barber, 140 Cal.App.2d 502, 507, 295 P.2d 561.

The only answer of defendants to the contention that it was error to take the question from the jury is that if plaintiff had desired an instruction that the presumption was applicable to Harris only in case it was found he had suffered a loss of memory, he should have requested such an instruction or a qualification of the instruction that was given.

Defendants rely upon the rule found in 24 California Jurisprudence, pages 796-798: 'Although it is not true as a general proposition that all issues raised by the pleadings are waived unless instructions relative thereto are requested, it is unquestionably the law that where a general instruction is given which is correct as far as it goes, being deficient merely by reason of its generality, the injured party may complain upon appeal only in case he requests that the charge be made more specific, or asks for other qualifying instructions, and his request is denied.'

This is a development of the requirement of section 607a of the Code of Civil Procedure that the parties propose instructions covering the law as disclosed by the pleadings. Each party has a duty to propose instructions in the law applicable to his own theory of the case. He has no duty to propose instructions which relate only to the opposing theories of his adversary, and having no duty respecting them he has no responsibility for the latter's mistakes.

The rule relied upon by defendants has rarely been applied except in the case of inadequate definitions of words and legal terms which each of the parties would desire to have correctly defined, and in nearly all instances the inadequacy has been in the definitions of negligence. See 24 Cal.Jur. 796. The instruction in question is not within the rule. It is not 'correct as far as it goes' nor is it 'deficient merely by reason of its generality.' It is erroneous, just as any other instruction is erroneous which improperly takes from the jury a material factual issue that upon the evidence can be decided either way. The rule has not been applied so as to absolve a party of responsibility for an instruction given at his request which took from the jury and decided as a matter of law a vital issue in the case. There are many such cases, but we know of none in which the party who was prejudiced by his opponent's instructions in this manner was denied the right to complain of the error. See cases listed in 24 Cal.Jur. 841.

There are innumerable cases which state the heart of the rule upon which the defendants rely as it was stated in State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal.2d 330, 340, 240 P.2d 282, 287, 'had plaintiff desired more specific instructions on the law of the case, it should have requested them.' In none of the cases cited by defendants, nor in any that has come to our attention has it been held that a party is under any duty to offer instructions upon principles that are irrelevant to his own theory of the case or to offer corrections of the instructions of his adversary pertinent only to the latter's theory of the case.

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