Ross v. Wilcox

• Decision Date: 17 March 1961
• Citation: Ross v. Wilcox, 11 Cal.Rptr. 588, 190 Cal.App.2d 213 (Cal. App. 1961)
• Parties: Cinderella ROSS and Herman Ross, Plaintiffs and Appellants, v. Charles Edward WILCOX et al., Defendants, Charles Edward Wilcox and T. Kent Wilcox, sued herein as T. R. Wilcox, Defendants and Respondents. Civ. 9850.
• Court: California Court of Appeals

Page 588

11 Cal.Rptr. 588

190 Cal.App.2d 213

Cinderella ROSS and Herman Ross, Plaintiffs and Appellants, v.Charles Edward WILCOX et al., DefendantsCharles Edward Wilcox and T. Kent Wilcox, sued herein as T. R. Wilcox, Defendants and Respondents.

Civ. 9850.

District Court of Appeal, Third District, California.

March 17, 1961.

Kenneth B. Cayocca and Robert N. Zarick, Sacramento, for appellants.

William E. Dopkins, Sacramento, for respondents.

PEEK, Justice.

Plaintiffs appeal from an adverse judgment in a personal injury action.The case arose out of a collision between an automobile in which plaintiffs were riding as the guests of one Keyes and an automobile being operated by the defendant, Charles Edward Wilcox.

In addition to the defendant driver, C. E. Wilcox, plaintiffs' complaint also named T. R. Wilcox as the owner of the car and the remaining defendants as the employers of the defendant driver.The complaint further alleged that C. E. Wilcox was driving with the consent of the owner and in the course and scope of his employment with the other defendants.Keyes, the driver of the car in which plaintiffs were riding as guests, was not named as a defendant.The answer denied generally all of the material allegations of the complaint and alleged contributory negligence as an affirmative defense.

The testimony concerning the actual collision was in sharp conflict.Plaintiffs do not question the sufficiency thereof to support a conclusion of negligence on the part of Keyes.Their sole contention on appeal is that the trial court erred in refusing to give certain instructions offered by them on the issues of imputed negligence and proximate cause.Counsel for defendant does not attack the correctness of the instructions offered.He does, however, question the propriety of the same under the circumstances.The instructions proposed by plaintiffs are as follows:

'The vehicle in which plaintiff, Cinderella Ross, was riding at the time of the accident in question was then being operated by Ward Keyes, and plaintiff was merely a guest.

'You are instructed that the driver's negligence, if any, may not be imputed to the plaintiff, Cinderella Ross, and that, therefore, you should find that there was no contributory negligence on the part of the plaintiff.

'Adapted from 210-C B.A.J.I.'

'When the negligent acts or omissions of two or more persons, whether committed in dependently or in the course of jointly directed conduct, contribute concurrently and as proximate causes to the injury of another, each of such persons is liable.

'This is true regardless of the relative degree of the contribution.It is no defense of the defendant, Charles Edward Wilcox, that Ward Keyes, not joined as a defendant in this action, participated in causing the injury, even if it should appear to you that Ward Keyes was negligent, or even if it should appear to you that the negligence of Ward Keyes was greater in either its wrongful nature or effect.

'Adapted from 104--B.A.J.I.'

'The law does not require that the negligence of defendant, Charles Edward Wilcox, must be the sole cause of the injury complained of in order to entitle the plaintiff to damages therefor.All that is required in either respect is that the negligence in question shall be a proximate cause of the injury complained of.

'Griffith vs. Oak Ridge Oil Co., 190 Cal. 389 at 392[212 P. 913].'

Defendants' argument in support of the action of the trial court appears to be: (1) that they did not allege imputed negligence as a defense; (2) that the court at the outset of the trial instructed the jury that the defense of contributory negligence had been withdrawn and was no longer an issue in the case; (3) that the only evidence of negligence related to the defendant Wilcox and whether such negligence was the proximate cause of plaintiffs' injuries; (4) that therefore the question of imputed negligence was not at issue and hence, the trial court's refusal of plaintiffs' instructions was proper.

Although plaintiffs did not name Keyes as a defendant, it cannot be said that his negligence, if any, in the operation of his car was not before the jury.Nor can it be said that because the issue of contributory negligence was withdrawn and defendants did not plead imputed negligence as such, therefore that issue was not before the jury.This is an appeal by plaintiffs from the action of the trial court in failing to give the instruction under the facts as presented, not for the giving of an instruction that negligence could be imputed in the face of the pleadings and the facts to the contrary.

The significance of the refusal of the trial court to give the instructions offered by plaintiffs is well illustrated by the subsequent request made by the jury, following the submission of the case, for further instructions upon that precise issue....