Hyatt v. Sierra Boat Co.

• Decision Date: 04 April 1978
• Citation: 145 Cal.Rptr. 47,79 Cal.App.3d 325
• Court: California Court of Appeals Court of Appeals
• Parties: John Wilson HYATT, Plaintiff and Respondent, v. SIERRA BOAT CO., Defendant and Appellant. Civ. 39172.

Page 47

145 Cal.Rptr. 47

79 Cal.App.3d 325

John Wilson HYATT, Plaintiff and Respondent, v. SIERRA BOAT CO., Defendant and Appellant.

Civ. 39172.

Court of Appeal, First District, Division 1, California.

April 4, 1978.

Hearing Denied June 1, 1978.

Boornazian, King & Schulze, James G. Boornazian, Oakland, Lascher & Wilner, Edward L. Lascher, Ventura, for defendant and appellant

White, Giambroni & Walters, Francis R. Giambroni, J. Michael Amis, Oakland, for plaintiff and respondent.

ANELLO, ^* Associate Justice.

This is an appeal taken from a judgment entered upon a jury verdict in favor of plaintiff. The action is one for damages for personal injuries suffered as a result of an automobile accident on September 22, 1971. The case was tried subsequent to Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, wherein the Supreme Court adopted the comparative negligence system assessing liability in direct proportion to fault.

Sometime after midnight on the date of the accident John Hyatt, plaintiff and respondent herein, was driving a 1960 Volkswagen on a four-lane highway in a westerly direction on Highway 28, near Carnelian Bay, Placer County. He was travelling in the right lane nearest the paved shoulder and was near his temporary motel residence when the accident happened.

There were no witnesses to the collision, and plaintiff was unable to supply any information that led up to the accident because of retrograde amnesia. However, the evidence revealed that plaintiff's car struck a glancing blow against defendant's 8-foot-wide boat trailer parked along the highway up against a dike, and thereafter skidded or rolled and had a second impact with a telephone pole.

Defendant Sierra Boat Company operated its business directly across the road from where the accident happened and had been officially warned on previous occasions about parking vehicles on the road. There was extensive testimony as to whether the boat trailer was illegally parked and stuck out in the travelled lane portion of the highway. The boat trailer struck by plaintiff was not registered and had no reflectors.

Plaintiff was 27 years of age and was a journeyman union carpenter prior to the accident. He had worked a full day framing houses and had been awake 18 hours before the accident. There was no direct evidence to indicate that plaintiff drove off the road at the time his car came in contact with the boat trailer.

It should be noted that Highway 28 has been extensively redesigned since the accident, so both parties introduced many witnesses who testified as to its width, the kind of curb, and its condition on the night of the accident. The plaintiff presented a design engineer from the state highway department, two surveyors and a highway maintenance officer. Defendant presented two traffic engineers and two auto accident experts.

There was evidence relating to plaintiff's possible intoxication. One of the police officers testified that he had smelled alcohol while extricating the plaintiff from his car after the accident. Another officer testified that he had not smelled alcohol, and the accident report made no reference to it. A blood alcohol test was taken approximately four hours after the accident. Based on that test, an expert witness testified that plaintiff's blood alcohol content at the time of the accident was between .087 percent and .093 percent.

As to plaintiff's injuries, the evidence showed he suffered amnesia, a contusion which left him with hemiparesis (weakness and stiffness or partial paralysis similar to a condition after a stroke) and some brain damage as a result of the accident. He was unconscious for over a week and was discharged from the hospital November 3, 1971. He has not held a job since the accident. In December 1971 and May 1972, John Hyatt saw a neurologist at Kaiser Hospital. In June 1972 plaintiff was admitted to the Veterans Administration Hospital in Portland, Oregon for 61/2 months. He received physical therapy and some psychiatric care while a patient there. His condition continued to deteriorate and in May 1974, 21/2 years after the accident, he was diagnosed as having multiple sclerosis. The medical experts agreed that the onset of multiple sclerosis was in no way related to or caused by the accident. Conflicting medical testimony was presented concerning the plaintiff's extent of disability prior to the onset of multiple sclerosis. Evidence also indicated that plaintiff had psychiatric problems in adjusting to his disability following the accident.

An economist called on behalf of the plaintiff testified that plaintiff's loss of earnings due to inability to work from the date of the accident to the date of trial was estimated at $54,900 and that his future loss of earnings projected from the date of trial was $633,300 to a total of $688,200.

The jury returned a special finding fixing plaintiff's damages at $850,000. The jury also found plaintiff to be contributorily negligent in the amount of 40 percent. A net verdict and judgment was thereafter entered on behalf of plaintiff in the amount of $510,000.

Defendant cites numerous errors which were allegedly committed by the trial court and which it contends were prejudicial in fixing liability and assessing damages by the jury, to wit:

1. The trial court improperly rejected defendant's instructions on intoxication.

2. The trial court improperly excluded testimony of an expert witness as to plaintiff's speed prior to the first impact.

3. The trial court's instruction defining the term "curb" was erroneous.

4. The jury was improperly instructed on the subject of damages.

5. The judgment was excessive.

6. The court costs should have been apportioned commensurate with the degree of fault attributable to each party.

DISCUSSION

1. It was not prejudicial error to fail to give the requested instructions on intoxication.

Defendant proposed and the court refused to give jury instructions BAJI No. 5.40 as modified ¹ and BAJI No. 3.45 as modified, ² and thereby contends it was "clearly error" because a litigant has the right to have the jury instructed on every issue which finds support in the record in the case. In support thereof, defendant quotes from Zamucen v. Crocker (1957) 149 Cal.App.2d 312, 316, 308 P.2d 384, 387, as follows: "All of the decided cases on the subject recognize that it is negligence as a matter of law to drive a vehicle upon a public highway while in an intoxicated condition."

Plaintiff argues that there was no evidence of intoxication which was substantially supported by the record. (4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 192, p. 3012.) He contends there were no witnesses that testified he or she saw plaintiff take one drink of any alcoholic beverage, and that there was no evidence that plaintiff was driving in a manner except as permitted by law. We disagree.

There was ample circumstantial evidence of plaintiff's possible intoxication. One of the police officers testified that he had smelled alcohol in the car while removing plaintiff from it. It is true another officer testified that he had not smelled alcohol, and the accident report made no reference to it. However, a blood alcohol test was taken at Washoe Medical Center in Nevada approximately four hours after the accident. Plaintiff's attorney sought to establish that the test was unreliable, but the court permitted an expert witness, Dr. Loquvam, to testify. His opinion was that plaintiff's blood alcohol content at the time of the accident was between .087 percent and .093 percent. A presumption of intoxication in criminal cases arises if the blood level is .10 percent. (Veh. Code, § 23126.) Dr. Loquvam extensively commented on the effect of alcohol on impairment of peripheral vision and reflection time.

Whether plaintiff was intoxicated on the evening of the accident was a disputed question of fact. There is no question that there was sufficient evidence from which the jury could have found that plaintiff was driving while intoxicated at the time of the collision. In light of such evidence, was it error for the court to refuse the submitted instructions on being under the influence of intoxicating liquor?

BAJI No. 5.40, as modified, which was submitted was not a correct statement of the law and was therefore properly refused by the trial court.

Defendant's proposed instruction BAJI No. 5.40, as modified, is comprised of certain excerpts from Vehicle Code sections 23102 ³ and 23126. ⁴ Vehicle Code section 23126 specifically states that it applies "Upon the trial of any criminal action, or preliminary proceeding in a criminal action." Defendant has provided no authority where the use of Vehicle Code section 23126 as an instruction is proper in a civil case, and our research has failed to show that such an instruction as submitted by defendant has ever been used and approved in a civil case.

In order to complain of failure to instruct on a particular issue the aggrieved party must request the specific proper instructions. (Carbaugh v. White Bus Line (1921) 51 Cal.App. 1, 5, 195 P. 1066; Barrera v. De La Torre (1957) 48 Cal.2d 166, 170, 308 P.2d 724; Phillips v. Noble (1958)50 Cal.2d 163, 166, 323 P.2d 385; Gaspar v. Georgia Pac. Corp. (1967) 248 Cal.App.2d 248, 251, 56 Cal.Rptr. 243; Switzer v. State of California (1969) 269 Cal.App.2d 627, 636, 75 Cal.Rptr. 371.) It is the responsibility of counsel to propose correct instructions and the court has no duty to modify erroneous instructions submitted to it, and there is no error if it simply rejects such instructions. (Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 158, 323 P.2d 391.) As stated in Rogers v. County of Los Angeles (1974) 39 Cal.App.3d 857, 862, 114 Cal.Rptr. 540, 543, "The court may properly reject defective instructions and need not correct them."

Furthermore, the duty of the court is fully discharged if the instructions given by the court embrace...