Miller v. Peters

• Decision Date: 04 May 1951
• Citation: 230 P.2d 803,37 Cal.2d 89
• Court: California Supreme Court
• Parties: MILLER et al. v. PETERS et al. L. A. 21849

Page 803

230 P.2d 803

37 Cal.2d 89

MILLER et al. v. PETERS et al.

L. A. 21849.

Supreme Court of California

May 4, 1951.

Rehearing Denied May 31, 1951.

Novack & Haberkorn, San Bernardino, appellants.

Guthrie, Lonergan & Jordan and Swing & Gillespie, San Bernardino, for respondents. & Gillespie, San Bernardino, for respondents.

SPENCE, Justice.

Plaintiffs sought damages for personal injuries sustained by reason of a collision between an automobile and a bus on Highland Avenue a short distrance east of the city limits of the city of San Bernardino. Plaintiff Harold Herbert Miller was driving the automobile and his mother, plaintiff Emily Miller, was riding with him. The bus was owned by defendant San Bernardino Valley Transit Company and was being operated by its employee, defendant Charles Luther Peters.

The complaint set forth two causes of action: (1) that of plaintiffs Louis Miller and Emily Miller, husband and wife, for injuries received by the latter while riding as a guest of her son; and (2) that of plaintiff Harold Herbert Miller, the son, for his own damages. In their answer defendants denied the alleged negligence, and as an affirmative defense to the second cause of action but not to the first cause of action involving the claim of the mother defendants pleaded contributory negligence, such defense relating only to the son. The case was tried before a jury and judgment on the verdict was rendered in favor of defendants. From such judgment, plaintiffs Louis and Emily Miller have appealed. They contend that the trial court committed prejudicial error in (1) submitting to the jury the question of contributory negligence on the part of plaintiff Emily Miller; and (2) in refusing to instruct the jury that such question was not an issue as to her cause of action. The record shows their position to be well taken.

The accident occurred at about 6 o'clock p.m. on May 9, 1948, at which time the weather was clear and dry. The automobile driven by appellants' son struck the left side of respondents' bus as it was making a 'U' turn on Highland Avenue at the terminal of the bus line just beyond the city limits of San Bernardino. Appellants' son testified that he first noticed the bus turning when he was 'about 150 feet away,' at which time he was traveling at about 40 to 45 miles per hour; that he sounded his horn; that the bus continued its circling movement; that he applied his brakes but was unable to avoid the collision. In response to questions asked by counsel for respondents, both the mother and son testified that the mother made no suggestion or remonstration to the son regarding his speed and the mother further testified that she never saw the bus prior to the collision. There was evidence that the brakes on the son's automobile were in good condition, that they left tire marks on the pavement for some 102 feet, and that just prior to the accident appellants' son was driving at a speed variously estimated from 50 to 60 miles per hour. Respondent bus driver testified that after he had looked in both directions on Highland Avenue and had adjusted the hand-signal on his bus to indicate a left turn, he shifted into low gear and commenced to make his turn; that he was then traveling between 3 and 4 miles per hour when the bus stalled; that he set the emergency brake and attempted to start it; and that while in such position and within a few seconds, the automobile driven by appellants' son struck the bus.

From the above brief summary, it is apparent that there was conflicting evidence which would support a determination that the collision was proximately caused by the negligence either of appellants' son or of respondent bus driver, or by the concurrent negligence of both. But the negligence of the driver of an automobile cannot be imputed to a passenger unless the latter exercised some control over the driver, or had the power to supervise or direct the manner in which the vehicle should be operated. Marchetti v. Southern Pacific Co., 204 Cal. 679, 681-682, 269 P. 529; Renowden v. Pacific Electric Ry. Co., 73 Cal.App. 383, 388, 238 P. 785; Queirolo v. Pacific Gas & Electric Co., 114 Cal.App. 610, 615, 300 P. 487; Strandt v. Cannon, 29 Cal.App.2d 509, 514, 85 P.2d 160. Concededly there was no evidence here that would sustain a finding of imputed negligence against the mother, and no instruction on this theory was given. However, although the issue was not pleaded, the trial court instructed the jury on the personal contributory negligence of a guest and its application in bar of a recovery for the injuries to the mother. The instruction, in substance, was as follows: that if the jury found that the son 'was driving * * * at a dangerous and excessive rate of speed * * * under all the facts and circumstances immediately prior and leading up to the happening of (the) accident,' that the mother 'knew of that fact in time to have objected or remonstrated,' that 'an ordinarily prudent person would have (so) remonstrated,' but that the mother 'did not (so) remonstrate' and 'the accident was proximately caused in whole or in part by such rate of speed,' then the mother '(was) not entitled to recover any damages.' The trial court refused to instruct the jury, at the request of appellants, that there was no issue of contributory negligence on the part of the mother presented for its consideration. The jury returned a verdict in favor of respondents on both counts: the damage claims for the mother's injuries as well as for the son's.

It is settled law that where the parties and the court proceed throughout the trial upon a theory that a certain issue is presented for adjudication, both parties are thereafter estopped from claiming that no such issue was in controversy even though it was not actually raised by the pleadings. 14 Cal.Jur. § 62, p. 974; Northwestern Mut. Fire Ass'n v. Pacific W. & S. Co., 187 Cal. 38, 40, 200 p. 934; Baar v. Smith, 201 Cal. 87, 98-99, 255 P. 827; McAllister v. Union Indemnity Co., 2 Cal.2d 457, 460, 42 P.2d 305. But such principle of estoppel operates only where it appears 'from the record on appeal * * * that the issue was actually and intentionally tried by the introduction of pertinent evidence, and that the party against whom the estoppel is invoked consciously participated or acquiesced in such trial, as if the issue had been made by the pleadings * * *'. Ortega v. Cordero, 88 Cal. 221, 227, 26 P. 80, 82; see 2 Cal.Jur. § 69, p. 239, and cases there cited. Furthermore, there is the added 'qualification that evidence which is relevant to an issue actually raised by the pleadings cannot be considered as authorizing the determination of an issue not presented.' Freeman v. Gray-Cowan, Inc., 219 Cal. 85, 87, 25 P.2d 415, 416. So applicable is the fundamental proposition that a party cannot object to the introduction of evidence which is pertinent to an issue made by the pleadings. Greiss v. State Investment & Insurance Co., 98 Cal. 241, 244, 33 P. 195. These distinguishable considerations are precisely noted in Riverside Water Co. v. Gage, 108 Cal. 240, at page 245, 41 P. 299, at page 300, as follows: 'It is frequently the case that evidence which is admissible to establish one issue may tend to establish another issue than that for which it is offered, and it is a rule that evidence so introduced is available to establish any of the issues in the case. This rule is, however, limited to the issues which are to be tried. If the other issue that the evidence may tend to establish is not before the court, the evidence must be limited to the actual issue. The fact of its introduction cannot be used to establish an issue that the parties have not made in their pleadings. The court would not be authorized to consider it as establishing an issue that was not before it for trial.' (Emphasis added.) To like effect, see Crescent lumber Co. v. Larson, 166 Cal. 168, 171, 135 P. 502.

It is true that an automobile passenger is bound to use reasonable care for his own safety; and whether such care has been exercised is ordinarily a question of fact to be submitted to the jury in its consideration of the passenger's duty to 'remonstrate against excessive speed (as) dependant upon the circumstances of the particular case.' Queirolo v. Pacific Gas & Electric Co., supra, 114 Cal.App. 610, 615, 300 P. 487, 491. As above indicated, both the son and the mother testified that she at no time asked the son 'to slow the car down' or remonstrated with him in any...