*1 Dist., No. 11862. Fourth Div. Two. June [Civ. 1972.] CARR, Minor, etc., al., SCOTT et LARRY
Plaintiffs Appellants, al., PACIFIC TELEPHONE et COMPANY Defendants and Respondents. *3 Counsel Trotter, Jr.,
John K. for Plaintiffs Appellants. Miller, Nisson & and Clark Miller for Defendants and Kogler Respondents. Opinion
KERRIGAN, J.This is an action widow and minor children of Carr, deceased, Fred W. to recover from a damages telephone company Plaintiffs’ defense verdict. with a death. The returned jury for his wrongful from denied, judgment.1 appeal a new trial plaintiffs for motion risk doctrine on the the instructed The trial court fact that evidence some 4.30, modified) and admitted (BATI No. in 1961 with a minor immoral affair in an been involved decedent had funds sufficient without checks issuing a conviction for suffered had on appeal maintain Plaintiffs in 1967. sentence he served which prison, ad- risk instruction the assumption in rendering the court erred record. criminal and prior character of decedent’s mitting winds. some heavy Orange County mid-February experienced tree fell from On Thursday evening, February huge eucalyptus wind, and home force of the in the backyard, garage *4 landing upon and the city Lane in or near of Mr. and Mrs. Bearden at 1251 Smoketree cables fall, the utility In the course of the the tree also landed on Tustin. as those of as well or lines of defendant Pacific Telephone Company, all the Mr. Bearden notified and a cable T-V Edison Company company. next evening, lines. The that the tree had fallen on their utility companies the visited 20, a Friday, February company representative telephone look at the have someone else to “. . . scene. He called supervisor visited the foreman situation. ...” A company supervisory telephone crew be dispatched that a residence the same and night telephone requested was after the tree wires the next day replace repair telephone Beck, dba Mr. Tip Top cable. The Beardens removed from the employed their home Service, trimmer, the tree from tree to remove Tree a private the tree to remove Fred W. Carr and Beck garage. [decedent] assigned lines, and house garage. from
The next morning, a fore- Saturday [February telephone company 21] and man aerial two linemen arrived on the scene at 7:30 a.m. Carr ap- 9, 1971; 11, 1 The returned with judgment the verdict on June was entered June 1971; 10, 1971; August 16, 1971, motion a August for new trial was denied plain on appeal tiffs filed a judgment, ruling notice of “. . . that certain made from or order 10, 1971, by August and entered the court in this action denied plain on which order 17, 1972, February tiffs’ plaintiffs motion new trial.” On filed a to correct petition change hereby the record so as to appeal plaintiffs the notice of to read “. . . that appeal judgment, ruling by . that . . from certain or order and entered made .”; 11, 1971, petition court June . to correct was in this action on . record denied; therefore, appeal purported defendant maintains that is from the order (see denying the motion for new and said order is Civ. nonappealable trial Code Proc., 904.1) However, disposi appeal and the should be dismissed. the lav/ favors merits, appeals support policy, tion of on the of such it has been deemed appeal liberally Consequently, the notice of should be we will review the construed. Berger, 65, (See appeal judgment. as an 67-69 matter from the Vibert v. 64 Cal.2d Court, 390]; Cal.Rptr. 410 P.2d Rules of rule Cal. lines tying by men secured telephone at 8 a.m. The telephone peared lines, and then tree, then around the a standing telephone around rope company employees around another tree. standing telephone While Tree Service scene, Top phoned at the Mr. Beck of Tip Carr were still Carr any Carr needed help. whether the Bearden residence inquired linemen he One of telephone didn’t need assistance. any responded assistance, “No.” and he asked Carr if he replied, also required had fallen from The tree the tree removal started operation. Carr from top the lot. He started the residence toward the front of rear of cut, from the as he moving cuts. On the third the tree and made two fence, the tree trunk the remainder of to the rear rear of the house the telephone of the tension created by the air as a into result flung up Carr, in major injuries resulting wires. The 8-10 foot trunk landed his death on 1970. February which caused tree trimmer capable that he was
Carr’s testified competent employer had been-em- that he wife testified almost situation. His of handling the State of California. trimmer with as a tree 1960’s early ployed ev- history background, to the defendant’s personal Turning virtue minor children prior that Carr had three idence reflected . *5 he married Can1, Breland. 1958 as Joan to Joan also known marriage Carr, child, bom November Scott and had Larry Jean Scott Carr one they the 1961-1963. 10, years during and Jean He temporarily 1958. separated trial, At the outset of the in counsel met with the court respective chambers. Plaintiffs’ the that informed court that he attorney anticipated defense counsel intended to evidence to the effect that Carr had produce suffered convictions, two that he to prior any felony strongly objected evidence that defendant his had suffered two convictions felony during Carr; to Jean Scott that he was 12-year marriage objecting principally evidence while to a 1961 conviction for any pertaining statutory rape; the evidence 1967 concerning counsel’s admission of objection any did conviction for bad in that he checks was somewhat passing equivocal be not believe that the conviction would as inflammatory evidence of such conviction, nevertheless, the as that the objection pro- involving rape the the counsel’s motion While court sustained plaintiffs’ sup- pounded. conviction, the court direct evidence of the statutory 1961 press rape this crime by did some of circumstances surrounding admit testimony Carr brought 16-year-old the defense to that in 1961 allowing prove wife, and that to the home and introduced her to girlfriend family 1961-1963, left his lived with girl, he during years family, conviction, As check failed to Ms to the 1967 court family. support crime, circumstances, and the evidence of the its surrounding admitted fact he sentence therefor. that served an' 11-month Orange County jail the court com first issue resolution whether requiring mitted error in on defense of assumption prejudicial instructing risk outset, At the is a assumption of risk. it should be emphasized of rare cases only permitted narrow which should be those where defense danger. injured person knowingly an obvious exposes himself defense there has been a of risk is available as a where Assumption hazard, either of the condition or voluntary dangerous express acceptance (Rest., made with the risk. of implied, appreciation knowledge Torts, have facts that the must had Where the indicate plaintiff hazard, knowledge the situation to actual knowledge, is equivalent of risk, but it merely appears and there be an where assumption exercise he of should or could have discovered the danger by care, defense is not of ordinary negligence, assumption contributory 375, 580]; (Hayes Corp., risk. v. Oil Cal.2d P.2d [240 Richfield (3d 454-468.) Prosser of risk is 1964) see Torts ed. Assumption on pp. cautious different and trial courts should be contributory negligence than be on of risk should al instructing only the former. Assumption knowledge had lowed as defense where there is plaintiff proof risk, thereof, voluntarily particular appreciated magnitude Co., 158, (Prescott Grocery assumed the same. v. Ralphs 42 Cal.2d 161- 904].) based on con of risk is fundamentally Assumption [265 Service, (Vierra sent. Avenue Rental 60 Cal.2d Cal. Fifth 383 P.2d Rptr. defense, is a limited is settled that
Because risk doctrine, before a be instructed there must jury may knew into but not that the only danger he stepping place plaintiff *6 (Vierra danger specific that he also had the involved. actual of knowledge Service, 270-271; 266, Grey v. Rental 60 Cal.2d v. supra, Avenue Fifth Co., 545, 240, Paper Fibreboard 65 Cal.2d Cal.Rptr. Products [53 the to have 153].) 418 P.2d of person risk injured Assumption reqüires actual, constructive, danger. (Sper knowledge particular the rather than of Hatch, 704].) v. ling Cal.Rptr. Cal.App.3d [88 that review, maintains under the the case telephone company a wires necessarily its huge prone presented the tree eucalyptus laying it, that Carr was an to observed and dangerous anyone situation who a dangerous who knew was confronted with tree trimmer he experienced and, danger, of the re- his knowledge notwithstanding potential situation from the any his own or assistance the of from employer fused offer help substance, defendant maintains that Carr sum and linemen. In telephone but risk nevertheless assumed the knew the undertaking dangerous that incident thereto. a astride a that fallen tree laying it conceded telephone
While itself, in in that condition inherently dangerous line an or electrical presents and the wires could break snap distinct that there is always possibility tree, or that a a workman or bystander, the of the weight injuring from hazard, not obvious did dangers wire could these live serious present which specific ultimately of the risk result in Carr’s death. Knowledge risk; watchword of or- the or death is the causes injury risk condition will not be taken to assume or dinarily, plaintiff furthermore, is activities of which he ignorant; plaintiff from flowing but he must which create the danger, must not know of the facts only (3d ed. (Prosser on Torts itself. danger comprehend appreciate 1964) 461-468.) to assume that the line- right Carr had pp. telephone cable it such a would their to secure the perform duty tying men the uncut manner that would not create tension or cause portion from a tree hurtle the air like a bean through slingshot. trunk to projected which no that Carr knew of the specific danger There evidence absolutely in his and death. ultimately resulted injury had secured
Carr had a linemen assume right properly tree trunk in such a manner that would remain in until they place lines Orlando, (See Johnston had been from the cable. entirely removed testified the One lineman 708-711 pur- the cable from going up the cable down was to tying prevent pose testified the A second lineman rope tree with it. taking air trees in order standing prevent tied around the cable and fastened to two does it air. Nowhere in the record in the up appear cable from springing the trunk was have known that knew or that he must that the decedent him down upon the cable into air plummet from apt spring its to relieve the company Carr did not consent telephone else. anyone cable, and there secure the telephone obligation firmly employees aware of the fact that he was actually indicating no into them from secured to springing had not been sufficiently prevent lines evidence reflects tension. contrary, the air as a result of To *7 v. (See Guerrero itself. tree trunk be from the anticipated no danger 107].) Con- 612, Co., 617 P.2d Westgate [331 Lumber 164 Cal.App.2d in tree trunk flying of the fallen assume the danger Carr did not sequently, on the wires. as result of the tension imposed air is on of risk when are reversible error to instruct there assumption It doctrine; is facts invocation of the error insufficient preju warranting dicial inasmuch as cannot be determined on whether jury appeal if its even based verdict on of risk or contributory negligence; assumption was evidence of of risk in assumption there contributory negligence, be said be struction cannot unless contributory negligence superfluous Service, (Vierra as a v. Avenue Rental was shown matter of law. Fifth Edwardsen, 266, 273-275; Hartlerode v. supra, 60 Cal.2d Cal.App.2d Dist., 517, 346]; City Santa Rosa Sch. 521-522 Dutcher Cal.Rptr. [33 of 256, Here, is to this case. rationale foregoing peculiarly applicable be the instructions court instructed on both defenses. There can no question deliber- influenced the defense verdict as the returned during inasmuch neg- on contributory ations and the foreman that the instructions requested must the judgment of risk reread. ligence Consequently, be reversed. it is determination is
Although foregoing dispositive appeal, issue in- deemed advisable to undertake discussion of remaining some on retrial. of character be offered may asmuch evidence Carr’s Defendant offered evidence of Carr’s (his character left having his to live with family 1961-1963, in young girl his conviction in for checks issuing funds) without sufficient on the basis such information relevant to California law damages. provides relevant character evidence is cases, admissible in civil in those except situations conduct, where it is offered to conduct, or of prove quality (Evid. Code, occasion. specific 1104.) Since the §§ prof fered evidence did not relate to the decedent’s conduct or the of quality conduct, his only whether or not it was question relevant. Evidence of a character or person’s a trait of his character relevant in three situa (1) tions: When offered witness; on the issue of (2) as a credibility when offered as circumstantial of his conduct ini with such conformity character; character trait (3) or when his character a trait of his character is an ultimate fact (Comment, in the action. Law Rev. dispute Com., Code, Evid. § Defendant urges the aforesaid in, character evidence was relevant an ultimate prove fact dispute, wit, that evidence of the decedent’s character was essential in order to determine the amount of damages proper death. wrongful The only for an statutory authority award damages death wrongful trier-of-fa,ct cases is the as, that the provision award may such damages case, Proc., under all the (Code circumstances be just. Civ. 377.) Case law has further defined death to include wrongful damages
545
future contributions
(1)
value of
three elements:
The present
following
heirs; (2)
value of any
to
surviving
from the decedent
his
personal,
service,
and
have been
advice or
that
would
training
probably
given;
(Bond v.
(3)
value of the decedent’s
and
society
companionship.
Railroads,
Witkin,
366];
of Cal.
Summary
P.
2
United
As to widow, for authority there to his value of companionship show the re- loss by seeking damages pecuniary plaintiff, proposition death, relation- an issue tenders of her husband’s reason sulting by Dean, (See Benwell and herself. deceased between ship evidence of However, concerned Benwell 345, 353 Cal.Rptr. *9 discord of marital the death the husband. The immediately preceding 1961- 1963 activities of the decedent herein were so remote from his family of his as to be at the time death in more than relationship prejudicial (See and the evidence should be excluded retrial. Evid. probative, upon Code, 352.) Syah
In conclusion it should noted defendant’s reliance on Johnson, supra, 247 substantial Although Cal.App.2d misplaced. deceased’s evidence was in that case derelict concerning introduced behavior, the of that evidence was not contested on admissibility appeal; $30,000 instead, dam that the award of death it was urged wrongful character; of evidence decedent’s dissolute was excessive in ages light affirmed, tend as the decision would inasmuch was actually judgment wrongful evidence is of utility measuring show that character minimal death damages.
The is reversed. judgment
Gabbert, J., concurred.
GARDNER, P. J.I dissent.
As Mahnan, this court said in Sand v. Cal. 691], . “. . it is Rptr. not error to an give instruction advanced on theory if there party evidence it, at all on which to base this although bemay slight inconclusive. is whether question [Citations.] the record evidence, contains any inferences to be drawn from including circumstances, knew and plaintiff appreciated danger. [Cita Mahnan, (Sand v. supra, tions.]” p. evidence, my
In the record in this opinion, case contains sufficient from which a reasonable inference bemay drawn that from Carr’s knowledge and observations he knew and appreciated involved danger Therefore, undertaking. the instruction on was risk proper. I also feel that the evidence decedent’s was background properly received. first place, to a only objection conviction prior ground
that it was inflammatory that made as to the conviction. That rape was sustained. objection concerned, Insofar check conviction was this, only objection made to was that was not a because the dece- felony issue and none was made on this ruling dent drew time. No county of the check *10 for the for since counsel plaintiffs presented called as the result of this jail in and the fact that Carr time spent conviction extra- Carr’s attorney brought up the conviction. Additionally, plaintiffs’ when widow. It is basic that of the on direct examination marital activities at the time of be an objection is offered there must inadmissible evidence the to at all waives Failure object be on trial not raised appeal. Thus, inso- 1966) (2d defect. Evidence ed. (Witkin, p. Cal. concerned, activities are extramarital as the check conviction and Carr’s far and, addition, there in counsel the matters were out by plaintiffs’ brought In this activities. respect, no made extramarital objection concerning understand, I said, be is some offer of “There going proof, counsel admissible, woman, and if Honor feels that another there was but much, difficulty, I can cover that without any me too doesn’t concern I think is so felony highly prejudicial statutory rape prior Thereafter, indicated, the trial judge it.” forget couldn’t jurors just and the himself to the statutory rape plaintiff sustained the objection of. the matters now out brought complained the evidence stated authority majority, under
Secondly, conviction, in and his time cus- affairs, check his bad Carr’s extramarital admissible, had been objection even both were charges though on tody im- inherently I find inflammable or dreadfully thereto. so nothing made truth. telling jury proper
The that the majority suggests jury merely be advised that the defendant missing for the he was in years (On a secret mission custody. peace United Nations? of the Amazon? A Exploring upper regions war?) medical missionary of New Guinea? A jungles prisoner rich, defendant, even a A soulless is entitled to show corporation, of the decedent to contribute his heirs disposition financially support and to show his and his habits of and thrift since earning capacity industry have (McDonald all a value wife life to his bearing family. Price, If the decedent had been a hard-working, citizen and a of all the virtues of hon- law-abiding paragon thrift and who his wife and children and afforded esty, probity supported home, If, stable them would entitled to so on the plaintiff prove. hand, other he was an check-kiting jailbird, irresponsible, philandering, would be entitled whole entitled so know. to the jury sterilized, unreal, wrinkles all—not a retouched por- picture—warts, silhouette of the real man. As trait which amounts Mr. only shadowy Moto, that well-known said, Japanese 1930’s philosopher once “Candor are virtue.” lovely
I would affirm the judgment.