Rayner v. Ramirez

• Citation: 159 Cal.App.2d 372,324 P.2d 83
• Court: California Court of Appeals
• Decision Date: 15 April 1958
• Parties: Thelma O. RAYNER and Irwin J. Rayner, et al., Plaintiffs and Appellants, v. Henry Bermea RAMIREZ, Peter Bermea Ramirez and Rita B. Ramirez, Defendants and Respondents. Civ. 5609.

Page 83

324 P.2d 83

159 Cal.App.2d 372

Thelma O. RAYNER and Irwin J. Rayner, et al., Plaintiffs and Appellants, v. Henry Bermea RAMIREZ, Peter Bermea Ramirez and Rita B. Ramirez, Defendants and Respondents.

Civ. 5609.

District Court of Appeal, Fourth District, California.

April 15, 1958.

Dermit Long, Hollywood, and W. W. McCray, Santa Ana, for appellants.

Hansen, McCormick, Barstow & Sheppard, and Hollis G. Best, Fresno, for respondent Henry B. Ramirez.

Crowe, Mitchell & Hurlbutt, Visalia, for respondents Peter B. and Rita B. Ramirez.

GRIFFIN, Justice.

In this action against Henry B. Ramirez, Peter B. Ramirez and Rita B. Ramirez, brought by Thelma O. Rayner, the claimed surviving wife of the deceased Ronald Rayner, and the surviving mother and father, Ruby and Irwin Rayner, a jury returned a verdict for defendants. Plaintiffs appealed from the judgment.

The main contentions on appeal are that the court erroneously instructed the jury, failed to give plaintiffs' proffered instructions and refused to strike certain evidence.

In defendants' answer, after denying negligence on their part, they pleaded contributory negligence on the part of plaintiffs' decedent and that the accident was 'unavoidable'. At the request of defendants an instruction was given to the effect that in law we recognize what is termed an unavoidable or inevitable accident; that these terms do not mean literally that it was not possible for such an accident to be avoided; and that they simply denote an accident that occurred without having been proximately caused by negligence. This instruction was not referred to in the briefs as being one to which objection was made since, at the time of trial, it was proper under the decision in Parker v. Womack, 37 Cal.2d 116, 230 P.2d 823.

It is the usual rule that a point is deemed waived and an appellate court will not consider a question not raised at the trial or on a motion for new trial and not referred to in the briefs on appeal particularly where no authority is cited in support of the point. 5 C.J.S. Appeal and Error § 1803, p. 1219. By letter, subsequent to the filing of the briefs, the case of Butigan v. Yellow Cab Company, 49 Cal.2d 652, 320 P.2d 500, was cited, and in the argument before this court objection was raised as to the propriety of giving such an instruction under the facts of the case. Under the circumstances there appears to be good reason for the failure of plaintiffs to raise the point in their opening brief. We conclude it should be here considered. California National Supply Company v. O'Brien, 51 Cal.App. 606, 612, 197 P. 414.

Since the rendition of the judgment in the instant case and after all of the briefs on appeal had been filed, the majority of the Supreme Court, in the Butigan case, overruled Parker v. Womack, supra, and held that the so-called defense of unavoidable or inevitable accident has no legitimate place in our pleading (with some possible exceptions), and that it is nothing more than a denial by plaintiff of his negligence, or that his negligence, if any, was a proximate cause of the injury. It appears that at the time of trial and under the Womack decision, supra, defendants were entitled to an instruction on an unavoidable and inevitable accident. For all intents and purposes, this was the rule of law existing at the time by which he trial court and the parties were bound, and no one was bound to anticipate that at some subsequent date, after the filing of all briefs, this rule would be changed. The authorities, even in this state, are not uniform on the question as to the effect of a change of the law, during the pendency of an appeal, in relation to the determination and disposition of a cause by the appellate courts. See 5 C.J.S. Appeal and Error § 1841, p. 1310. The rule in some states is that the law in force at the time the judgment is rendered is ordinarily controlling, and the rule in other jurisdictions is that the appellate court must generally decide and dispose of the case in accordance with the law existing at the time of its own decision. Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, 3 Cal.2d 489, 45 P.2d 972; Collins v. Consolidated Water Co., 122 Cal.App. 348, 9 P.2d 872; Morris v. Board of Education, 119 Cal.App. 750, 7 P.2d 364, 8 P.2d 502; Lowery v. Hallett, 105 Cal.App. 84, 287 P. 110; Barcelone v. Melani, 156 Cal.App.2d 631, 320 P.2d 203, hearing in Supreme Court denied; Brandelius v. City and County of San Francisco, 47 Cal.2d 729, 306 P.2d 432; Parrott v. Furesz, 153 Cal.App.2d 26, 314 P.2d 47; People v. Kitchens, 46 Cal.2d 260, 294 P.2d 17; People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, and Broderick v. Stevenson Consolidated Oil Co., 88 Mont. 34, 290 P. 244, 246.

Assuming that the rule of law announced in the Butigan decision may be considered as applicable to this case, it is not clear from the Butigan decision whether the majority opinion intended to include among the 'unavoidable' type, such cases as Graham v. Consolidated Motor Transport Co., 112 Cal.App. 648, 297 P. 617, where a child ran into a street; Creamer v. Cerrato, 1 Cal.App.2d 441, 36 P.2d 1094; Jolley v. Clemens, 28 Cal.App.2d 55, 82 P.2d 51, where a horse suddenly appeared on the highway; Zaferis v. Bradley, 28 Cal.App.2d 188, 82 P.2d 70 (driver's foot became wedged between pedals); Smith v. Harger, 84 Cal.App.2d 361, 191 P.2d 25 (small boy pushing on back of dump truck); Alward v. Paola, 79 Cal.App.2d 1, 179 P.2d 5; Merry v. Knudsen Creamery Co., 94 Cal.App.2d 715, 211 P.2d 905 (brake failure); La Porte v. Houston, 33 Cal.2d 167, 199 P.2d 665; Barber v. Gordon, 111 Cal.App. 279, 295 P. 377; Doggett v. Lacey, 121 Cal.App. 395, 9 P.2d 257 (cases of defective automobile mechanism not due to driver's negligence); Yates v. J. H. Krumlinde & Co., 22 Cal.App.2d 387, 71 P.2d 298 (gust of wind caused gate to slam shut); Hester v. Hall, 17 Ala.App. 25, 81 So. 361 (hogs darting in front of a car); Rainwater v. Boatright, La.App., 61 So.2d 212 (child darted in front of a car); Holland v. Bartch, 120 Ind. 46, 22 N.E. 83, 16 Am.St.Rep. 307 (boy on bicycle who frightens horse), and Kelly v. Gagnon, 121 Neb. 113, 236 N.W. 160 (automobile driver whose tire blows out). Other such cases could be listed at great length. 65 C.J.S. Negligence § 21, pp. 430-433; Prosser on Torts, 2d Ed. p. 167. Suffice it to say that in many jurisdictions the doctrine of unavoidable accident is recognized in such type of cases. This type was considered in Butigan v. Yellow Cab Company, 310 P.2d 132, 136, when that case was before the District Court of Appeal. It was there said:

'Under the true concept of the rule, an unforeseeable cause cannot exonerate a party charged with negligence unless it is shown to have been the sole proximate cause of the accident, and there is no justification for giving an unavoidable accident instruction unless the jury could reasonably conclude that the sole proximate cause of the accident was one that was beyond the reasonable anticipation and control of the parties.'

After a hearing was granted, in a majority opinion by the Supreme Court, 320 P.2d 500, 505, it was held that under the facts of that case an instruction on unavoidable accident was not justified and accordingly it was error to give it. The Supreme Court did not directly overrule the holdings in the cases above cited but did remark that there were situations where it might be necessary to explain the meaning of the words 'unavoidable accident', for example, where a defendant is charged with a violation of section 602 of the Vehicle Code, and that 'in the absence of a special situation of the type discussed above' the use of such an instruction 'should be disapproved'. If this decision is to be construed that the giving of such an instruction is error in all cases except those where the statute provides for such a defense, then it was error to give the instruction above mentioned. If the term 'special situation of the type discussed' included such situations as formerly approved in the cases cited, as being a type where the facts allowed an instruction on 'unavoidable accident' then the facts of the instant case would be within that rule and it would not be error to give such an instruction. As to this, it would appear to us some clarification would be beneficial to trial and appellate courts for their future guidance.

Assuming, without deciding it was error to give it, the question then remains whether or not it was prejudicial. From the facts hereafter related and the surrounding circumstances, we conclude that if the giving of such an instruction was error, it was not prejudicial error requiring a reversal of the judgment. It does not affirmatively appear that the judgment was rendered in favor of the defendants because of the giving of this instruction but was mainly due to the actions and conduct of the plaintiff wife in reference to her testimony and her claimed damages.

The factual background, gleaned from the record, shows that on August 18, 1954, at about 6 p. m. in the daylight, Ronald Rayner was driving on Oldsmobile automobile in a westerly direction on Nevada Avenue on an oiled country roadway about 21 feet wide which ran between Coalinga and Lemoore. Defendant Henry Ramirez was driving a 1953 Chevrolet flat-bed truck with 3 or 4-foot side boards in a general easterly direction. He was towing a similar 1949 Chevrolet flat-bed truck being steered by defendant Peter Ramirez. This latter truck was registered in the name of defendant Rita Ramirez, the mother, who was not present at the time of the accident. Henry and his brother Peter were jointly engaged in farming enterprises. They were moving their equipment by means of these two trucks. The engine of the 1949 Chevrolet ceased to function. A 3/7 inch chain about 15 to 18 feet long, with a hook on each end, was fastened to the bumper of the 1949 Chevrolet and to the trailer hitch of...