*1 contrary, counsel but, to the of this evidence the introduction objection. make no that he would for the defendant stated the “reference to however, he moved to strike Later, denied. The winning $10,000.” The motion was alleged re- giving the reasons for his statements made and, although evidence checks were admissible pay the fusal to the issues winnings not have been material to prior under the circum- prejudicial error case, was in this the conversation. portion to refuse strike stances that it to introduce also contended was error prior visit to taken of defendant on photograph evidence showing sitting chips a table with front casino gambled had at the had testified that he Defendant of him. occasions, prejudicial and it was not error prior casino on in evidence. photograph admit the affirmed. judgment is Carter, J., Traynor, J., Schauer, J., Edmonds, J., Shenk, J., J., concurred. Spence, May 6, No. 19900. In Bank. A. 1947.] [L. Respondent, RALPH JOHNSTON, C. LONG R. HAROLD al., Appellants. et *4 Jennings & Belcher and Monroe & McInnis Appellants. for Forrest A. Betts and Wm. H. Macomber Respondent. for TRAYNOR, J. Defendant appeals judgment from a en tered in favor plaintiff damages of personal injuries for by sustained the latter an when overhead door fell on him as entering he was garage Gray of C. A. agency the automobile Diego. San garage operated by owned and C. A. Gray during his lifetime. At the time of the accident it was operated part according as of his estate to the terms of his pursuant will and by section 572 the Probate Code Ralph Long Verheyen C. and A. J. as executors. In accord ance with expressed wishes of decedent will, the as the operation the actual business was left in the hands Berger, manager of John who had been of the business dur ing injuries decedent’s last illness. Plaintiff’s occurred when opening delivery gasoline he was door to make a be premises fore the opened were for business. The door was of by counterweights type, operated the overhead means of con opening nected to door a wire cable. While fastening, pulled the door cable from its and the door falling plaintiff’s shut cut off the end of nose.
Eight occurred, after the accident months assets of the Miller, trustee, to O. as estate distributed J. estate were discharged. was closed and the executors were Four months naming plaintiff brought defendants, later this action J. O. Diego Planing Miller, trustee; Company, Mill San put in company had installed door and a new Long Verheyen, accident; and and both as cable before Gray. A. individuals and as executors' of the estate C. trustee, Miller, A was sustained without demurrer filed A demurrer was also sustained favor of leave to amend. Planing judgment Mill and was entered for Diego the San ruling were but, appeal, that defendant Long, Cal.App.2d (Johnston v. reversed. by defendant were overruled. filed
409].) Demurrers trial, before the coexecutor, died Verheyen, the A. J. Defendant, opening him. dismissed as to the action was testimony objected to the introduction trial, objec capacity, but representative him in his against Long, to trial and the case went overruled tion was Diego executor, the San individual, Long, as an *5 59 Planing Company. Mill Throughout trial, Long also made several motions that him the case dismissed as to in capacity his executor, including as for nonsuit and motions directed verdict, but all such motions were denied. returned $87,575 “against a verdict for de-
fendant Ralph Long, acting C. an individual as executor the estate of Gray, deceased,” special C. A. and a verdict in favor of planing negli- the defendant mill there was no gence on part employee its or on of its who had re- part paired grounds Long appeals door. Defendant on the may that an representative capacity in executor not be his sued distributed, after the he estate closed, has been the assets has been discharged executor; as that the is indefinite verdict uncertain in that it whether does disclose intended against Long to find an individual him as an executor; an estate has been closed and that after may per- held discharged, executor the executor not be sonally a negligence employee for the business liable conducted 572 of the pursuant the executor to section Probate trial was Code; and that manner which presented prejudiced conducted and the issues so deprive him a fair trial on issue defendant as to personal liability. of his per
A basic whether an executor issue this case is sonally employees of busi liable for torts committed the Probate operated by pursuant ness section 572 of always for torts Code. An been liable executor has (Eustace by him in of the estate. committed the administration 724, Stanley, 146 Cal. Johns, 21; v. 3, v. 38 Cal. see Nickals 271, Cal.App.2d Rapaport Forer, 20 ; 727 P. [81 117] 640.) 637, A.L.R. 1242]; 44 P.2d cases collected [66 the Code 1581 of Before the 1929 amendment to section if an executor Code, §572), (now Civil Procedure Prob. authorization without carry elected to business on decedent’s 347, 353 Cal.App. (see Ward, will Estate of liability for his risk and did own 901]), he so conducting the busi anything in the course that occurred from of reimbursement one, with no personal ness was 163, 198 Cal. (Estate Burke, the estate. 1341].) 44 A.L.R. provides: the Probate Code 572 of Section estate, given in an interested persons all “After notice judge court or by may directed in such manner as thereof, may authorize the executor or administrator operation continue the of the decedent’s business to such subject an extent and to such restrictions seem to court to be for the best interest of the inter- estate those ested therein.”
Defendant contends since an executor authorized under operate longer this section decedent’s business does so at his own risk, is not he liable torts committed *6 in the operations course of business when he is free from fault, and that to construe the im section otherwise would pose heavy operate too a burden executors on who must busi nesses. only This contention overlooks not the fact required operate executor is not business, but must petition permission court so, for to do but the fact that personal liability the rule toas of executor an for torts during committed of his course administration is not con fined in operations to eases which the executor on carries scope authority. are (See of outside Niclcals v. Stan ley, Forer, supra; Rapaport 640.) supra; 637, v. 44 A.L.R. liability during Personal for operations committed torts are proper scope otherwise within the au of executor’s thority nothing is a not new burden. There is 572 section liability change personal to indicate that the rule toas was intended. The effect 1929 principal amendment provide authorization, was to an will pro should the fail to one, carry vide for executor on the decedent’s busi (Estate supra; Ward, King, ness. Estate 19 Cal.2d of of 354, 716].) 359 P.2d [121 respondeat supe Defendant also contends that the rule of applied against rior cannot an administrator or executor gains personal advantage who operation from the aof making contention, decedent’s business. In this Campbell Bradbury, 364, relies on v. 179 Cal. 371 P. [176 Fetting Winch, 54 600, and v. Ore. 607 722, 685] [104 352, 379], Campbell 21 38 Ann.Cas. L.R.A.N.S. In v. Brad bury, incompetent guardianship this court held that an under responsible negligent operation for the of an elevator operated guardian building under the control of and liability rejected any analogy expressly of executors liability judgment imposing in similar an situations. A on incompetent paid guardian to be of assets out controlled liability clearly distinguishable imposing is from a on The and incompetent person would estate. still
61 guardian, discharge removal of the but after be liable legal and after distribution person even a not estate is longer discharge the executor it no of the assets exists. it Campbell had someone before in the case court jus there some imposed, could whom by imposing the lia avoiding circuity action tification ultimately bear bility initially party that would liable. answer guardian personally if the were even Winch, supra, Oregon Fetting problem the except would have no nothing solves that a Fetting case, just In the recovery, no matter how his case. held that although open, the court estate still repre nor his held in neither his individual executor could be individually liable because capacity. He not sentative liable be negligent, the estate was not personally cause it could not commit a tort. obligations operation in the regard
With incurred held that while the 572, under it has been businesses section obligations properly continues, contractual administration liens on the chargeable against do not become the estate but 346, Cal.App.2d (Estate Allen, assets of the estate. Smith, Cal.App.2d 973]; P.2d Estate however, on 574].) relies, Defendant California *7 767, Cal.App.2d 770 Employment Hansen, v. 69 Stab. Com. obliga- that the 173], in which the court stated [160 pursuant business managing tions incurred in the decedent’s and after charges against to section are the estate 572 for not liable a final decree the executor is of distribution Act when Unemployment Insurance contributions under the against the claim failed file a creditor’s claimant has with the construc- only case concerned estate. Not was that there was no Unemployment Act, but tion of the Insurance applicable is it executor. Nor part issue of fault on the against liquidated if claim plaintiff provable no and has is closed. time the estate either the executor or the estate at the except superior, respondeat doctrine of Under the changed by statute, torts com may where the rule have been of administra in the course employees mitted of a trustee liability. personal subject the trustee tion of the trust estate 2) (pt. 3 collected, 264, (b); cases (Rest., Trusts, comment § 264; Trusts, 2 on Trustees, 532; Bogert, Trusts and Scott § recognized cases have 1122, 1124.) 43 Most Harv.L.Rev. 62 the same rules personal determine the liability of an
executor for torts committed in the course of administration.
(See
Muller,
Kirchner v.
280
23,
N.Y.
28
665,
N.E.2d
[19
127 A.L.R.
; Clauson
Stull,
v.
331
101,
Pa.
103
681]
A.
[200
; cases collected 43 Dick
143;
593]
3
L.Rev.
the torts of his in the course of administration is now generally qualified by giving the executor right or trustee a against to reimbursement the assets of the estate when he is personally without (Rest., Trusts, fault. 247; eases col § (pt. 2) op. lected 3 Bogert, supra, cit. 734; Scott, op. cit. § supra, 247; 44 637, 676.) A.L.R. The restatement pro § also vides against that when the claim the trustee is uncollectible personal because his assets insufficient, reach the trust assets to the extent that the trustee would right have had a (Rest., Trusts, reimbursement. 268; § see, also, Trusts, 268; Stone, Theory Scott A Liability § Trust Estates Contracts Torts the Trustee, 22 527.) A few gone Columb.L.Rev. cases have further allowed the trustee to be representative sued capacity circuity (In Raybould order to avoid of action. re (1900), 199, 201; Ewing Foley, Inc., Ch. v. Wm. L. 222, Tex. 627]; contra, S.W. A.L.R. Kirchner v. Mul ler, supra.) authorities, None of these however, holds that the personal liability (see trustee is absolved from Stone, loc. cit. supra), clear that of action that plain tiff purely has the estate derivative one.
When carries on the executor decedent’s business proper authorization, with there is doubt that contractual obligations properly chargeable against incurred are liability, estate and that tort per where the executor is not *8 sonally fault, ultimately by should borne be the estate. If any question liability section 572 effect has on the of tort estate, purpose purpose of that section as well any carrying in the will authorization for the of the by fully applying the rules of be carried out business liability regard Trusts in to such as well as Restatement of right out of the assets representative’s of reimbursement of the estate. however, that doctrine of contended,
It has been respondeat directly against the execu superior apply should subject per not representative capacity tor Although precise liability when he is without fault. sonal previously been decided the California has never gen good departing from the courts, there are reasons for not pri rather than the executor eral rule. To hold the estate marily agents estate, it would for the liable torts a necessary governing the liabilities of apply the rules trustee, governing corporate and to abandon those a officer applicable which been held to executors. have heretofore under the corporation is clear that an officer of a not liable superior corporate em respondeat doctrine for the torts of liability falls ployees except at fault. The where officer is however, an corporation. corporation, Unlike a entity (Tanner Best, legal corporate estate is v. prin 442, 1084]) and Cal.App.2d cannot be regarded cipal. properly Nor can the executor authority agent distributees, is derived of the heirs or for his him is will, from the and the exercised over control Jahns, probate (Eustace v. the control exercised court. nearly a trustee 3, 22.) position 38 Cal. His is more that of agent. The em or of the decedent himself than regarded employees and his ployees thus as his (Kalua v. any employer. their actions be that of for should Camarinos, 557, 558.) 11 Hawaii by some possible if it
Moreover, even
be assumed
directly
for the torts
procedure
the estate
liable
to hold
personally,
against the
employees
executor
without
prac
fault, there are
personally at
the executor is not
where
sys
existing
procedure. Under the
objections
tical
to such a
not afford
procedure
would
tem of administration such
only
method available
adequate protection.
heirs
against
execu
is an action
reaching the assets of the estate
Undertaking
(Golden
capacity.
Gate
representative
in his
tor
1915D
94, Ann.Cas.
Taylor,
v.
168 Cal.
o.
C
Best, supra.)
plain
If the
; Tanner
742,
the executor in his heirs would question personal have the fault no assurance properly It would not of the executor would be tried. be to attempting plaintiff, would be the interest of either the who defendant, estate, or the to recover out of the assets of and an executor would be whose an individual interest as 23, Muller, 280 N.Y. 28 (see in conflict Kirchner v. [19 personal fault 665, 681]), A.L.R. to show on N.E.2d 127 general rule that execu- part of the executor. Under the by him or his personally tor torts committed is liable for the may re- agents administration, the course of personally the executor and judgment against cover a probate fault determined of the executor’s is may properly pro- court, of the heirs where the interest (See Wills, 611.) tected. Atkinson respondeat application is contended if executor is superior may results doctrine have harsh property the estate and his own against not able to recover Ordinarily, if judgment. subject is under to execution right of protected his fault he executor is without Moreover, this the estate. reimbursement out of the assets of superior no respondeat application of the doctrine of may principal who application to harsher than its usual agent (Silva v. Provi- his gain profit from the actions of no 798]) and there 762, 775 Hospital, 14 Cal.2d dence [97 prin- get he can reimbursement. is no estate from which re- of the doctrine application cipal justification for may employer that the spondeat superior any is the fact case carry the cost thereof through spread the insurance risk (See Smith, Frolic and doing business. part of his costs of seq.) broad 444, 456 et Under the Detour, Columb.L.Rev. under section 572 power granted probate condition to require, as a Code, the court Probate insure business, the executor to right to continue decedent’s liability arising of the conduct of out against tort payable insurance out for such business, premiums with the expense of the business. proper the estate as of the assets of either direct if there were case, even present In the representative in right against the executor or derivative held liable not be Long could capacity, there was no longer an executor was no capacity, for he pur- the time' of the suit. represent him to estate for under of the estate pose such a suit is to reach assets Undertaking (Golden Co. control. Gate executor’s 492, 494 Barker, 119 Cal. Taylor, supra; see Sterret v. discharged has been 695].) P. Where the executor subject longer distributed, the executor is therefore estate Savings Bank (Union representative capacity. to suit in his 84].) There would Laveaga, v. De Cal. suit, the executor has no assets purpose be no in such a under the estate his control. removed, his Similarly, been after executor has connection with and a the estate is severed *10 (More More, 127 Cal. does not bind the estate. 823].) proceed . case, therefore, plaintiff In could this suing the directly against only by of the estate assets against the originally distributee. instituted This action was demurrer against executors, a as well as but distributee amend, judgment, which sustained without leave to and a has in the distributee. final, now become was entered favor of it cannot party appeal, Since the distributee a to this is not right of be decided in the executor has this case whether indemnity the assets against to the extent of the distributee 279 for the (See Rest., Trusts, §§249(2) and distributed. indemnity right restatement after rules as to the trustee’s rights plaintiff.) a tort distribution and the derivative only a suggestion plaintiff The that a should have been right against direct after an estate has distributee completely unsupported closed and distributed is the assets by impose a con authority. Moreover, rule would such a in which the assets plaintiff siderable burden in a case may all be widely among many legatees, who distributed property have no within jurisdictions other residents of de not, therefore, sufficient reasons this state. There are the execu viating general personal from the rule agents in the course of and his tor for the torts of himself closing in the estate an administration, it clear that liability for thereby personal cut off his executor does not such torts. per held have been
Although could by sonally injuries sustained liable for the fair he denied a question remains whether case, trial on the personal liability. theory of his The issue of the plaintiff’s case he defendant was that was a business premises by invitee on operated the defendant and that falling by negligence of the door either was caused employee of an garage repairing by of the the door or garage employees failure dangerous con discover might inspec dition that been have discovered reasonable Although tion. there was some as to conflict the evidence plaintiff’s right premises to be on the at the time of the acci right operate door, dent and as to there was sub support stantial evidence to the conclusion that his status was that of a business invitee and that he had the open the door. theory
The basis for the that the accident occurred because negligence repairing employee of an the door was super- employee Budhi, building the failure of an named intendent, to have a nut welded on the end of the wire cable. shortly (the replaced cable was before the accident exact established), by carpenter employed never date was Planing codefendant, Diego Company. Mill This San carpenter, originally door, installed the testified who had also prevent that he did not end of the wire cable to tie the required by came unwinding, from the instructions that original was, therefore, with the hardware. There sufficient evidence to warrant an inference that the cable became dis- unwinding carpenter connected cable. because not tie the because at time of testified he did cable *11 had nut the original installation Budhi had welded to the replacing carpenter cable cable, end of the and on the the welding again. that was to be done There understood welding effect that such tended to weaken was evidence to the reason, it was not done on similar that, for this the cable any- that have Diego. Budhi testified he did not doors in San carpenter the informed thing to the door because done unnecessary. testimony This was corroborated that was evidence by There was therefore sufficient witness. another that accident jury might have concluded the upon which the employees of either of by negligence of the the was caused Long, 56 (See Johnston v. neither. or of the defendants the case 409], for the law of 834, Cal.App.2d mill.) planing defendant of the as to been have ground on which The other garage employees part failure on liable was the held an that involved a condition care to discover reasonable use (Rest., using the door. of harm to those unreasonable risk 429, 433 Law, 209 Cal. Torts, §343; Barbieri v. tied, properly of the cable were
464].) The ends this con- that an inference to warrant evidence was sufficient unfastened. becoming the cable’s dition was the cause of might not the accident that Although there was evidence proper in a door opened the plaintiff happened have had contributory neg- and of questions of causation manner, the instructions, proper jury under ligence to the were submitted inspection a reasonable that and there is substantial evidence an unreasonable involving would disclosed condition have anyone the door. operating harm risk of giving in erred the court Defendant contends following instruction: to use Long, Ralph C. duty “It of the defendant mechan- ordinary repair in diligence keeping care and use said defendant appliances by ism and maintained you consideration find from a passageway, of the and if injuries to resulting all the the accident evidence that mechanism, or a defect said plaintiff occurred reason of or, known appliances, and find that such defeat either was have known care, of reasonable should been exercise prior happening Ralph Long, the defendant C. Long to have been you Ralph find C.
accident then will said you if further find negligent thereto, and with reference negli- that, plaintiff, such negligence part on the without your gence proximate question, accident in was a cause of the de- plaintiff verdict will be favor of the Ralph Long.” fendant C. does position that since this instruction defendant’s plaintiff, was instructed
not mention the status or not as matter of was liable whether law concluded an invitee. There is contention, com- merit whatever in this for the instruction jury along with the instructions was read plained paragraph immedi- plaintiff’s status. quotation ately foregoing it clear that preceding makes complained given the instruction with duty plaintiff’s Two sen- reference to to a business invitee. “you quoted stated, tences above the matter the court lawfully using instructed that where one as an invitee is *12 entry required employ any ex- passageway, he is not to
traordinary degree circumspection of care or ascer- tainment of entry whether or not or passageway is safe.” (Italics added.) immediately preceding The sentence challenged explains invitee, instruction that a business if not negligent, rely himself presumption has a to on the passageway proper is maintained in a and safe condition. The complained goes explain instruction of then on to duty defendant’s to such an invitee.
Following complained of, the paragraph the trial court again referred to duties of the defendant to an invitee. next paragraph by makes clear what the was told these It instructions. reads as follows:
“You will questions note that there are two to consider in injuries connection with whether received aas result of lack part of care on the proprietor of the or proprietors of to, building. said The first with reference is status the premises prove he and must that he anwas invitee order person to establish that he awas toward whom reasonable care must be exercised. then to deter- is . mined whether it proprietor has been established of premises said ordinary use negligently failed to failed care or ordinary to negligence use care and whether such was the proximate plaintiff’s cause injuries.” (Italics added.)
Defendant also contends that held as a" matter of law that proprietor defendant was the busi ness. The continue, however, is, instructions as “It follows: therefore, plaintiff’s an essential element of cause of action against the defendant, pre Ralph Long, C. establish ponderance defendant, Ralph evidence C. Long, proprietor building.” (Italics was a added.) said Following Long this instruction there is an instruction that respondeat superior liable as executor. The rule explained clearly jury. then There was error in referring proprietor business, for, to defendant as business, an executor authorized run the he was liable! proprietor. as the complained second instruction defendant that if the defendant
reads follows: “You are instructed requested Ralph Long by through agents, C. his officers or Planing repair Company door, Mill Long paid therefor, evidence establishes that said then if the law imputes knowledge said of the condition and (Italics added.) repair.” Petitioner necessity contends *13 instruction, court, the trial in effect, “instructed jury, the as a matter of law, that if a bill was rendered for repairs upon the door and paid by Long the full knowledge of the imputed Long condition was to as a matter of law.” The instruction, however, merely jury informed the was liable for agents the acts of his under the doc- trine respondeat superior and that their knowledge condition of the door repairs at the time imputed of the to By him. paying the bill repairs, Long merely for the agency ratified the in getting repairs any event, done. In defendant Long, as an executor of the estate authorized to run the business, was negligence liable for the of the em- ployees of the regard estate in to the condition of the door. Whether or paid not he the bill himself was therefore imma- terial. For this reason the instruction was at most irrelevant and could not have been prejudicial.
Defendant also contends that the court erred in refusing give the following requested by to instruction de Long; fendant
“In considering person entering of whether a premises you invitee, another is an are instructed that person entering premises having authority or to enter prem- purposes ises for business becomes an invitee in premises necessary to the extent reasonably carrying on the busi- purposes. fact, ness however, that person is such an invitee does not make him an invitee to all parts prem- ises, nor does it make purpose using invitee for the appliances and all be on premises. In such only instance is an reasonably he invitee to the extent to be expected in connection purposes with the business for which he is premises. invited to enter the implies Such invitation right portions premises enter such and to make appliances use of such reasonably therefor as are to be ex- pected in connection purpose with the of the invitation but no ’’ further.
Defendant following makes the opening concession in his brief: “It has been at all times conceded that for pur- pose delivering gasoline [plaintiff] he was an invitee.” only error, therefore, Defendant’s claim of is that properly was not scope instructed as to the of the invitation and as proof questions to the burden of thereon. The of fact jury, for the stated, plaintiff’s right as heretofore involved premises to be on at the time of the accident and his given by operate door. The instructions the trial presented jury, and the these issues properly regard of proof. burden There- instructed refusing re- fore trial court did err defendant’s quested instruction. the status of an invitee court instructed the following
in the terms: goes upon “One of another as a business premises who of the owner or express implied visitor at the or invitation occupant, and in some mutual business inter connection with business, est with the latter’s own occupant with called determine whether the in law an invitee. You premises not an Johnson was or was invitee *14 place happen time the thereof, and for the use at the of (Italics ing added.) of accident.” the respect duty jury to the The also instructed the with stated, and then “You proprietor of a a business invitee questions to consider connec- will note that there are two injuries as result of lack a plaintiff tion with received whether of proprietors or said part proprietor of care the on his building. question is with reference to status The first prove he that he an invitee must was upon premises the whom rea- person a toward in order establish that he was (Italics added..) jury The must sonable care be exercised.” requirement meaning of the the properly was instructed case. the elements prove the must material plaintiff that negli- where without jury The instructed “that was further using an lawfully injured while gence part person on his a invitee, and entry he is a business passageway or which proximate a result injuries come as such thus received where charged with party any negligence part on injured party entry passageway, the of such or maintenance is entitled to recover. invitee, he
“Toward an who extended invitation, ex- obligated press implied, to refrain from negli- active ordinary keep care gence premises and to exercise in a reasonably condition safe for invitee the reasonable (Italics pursuit purpose embraced within the invitation.” aof added.) question it jury in effect that a was instructed was plaintiff right had to oper-
fact for it to determine whether lawfully door, using e., plaintiff i. whether was ate doorway pursuit purpose in the embraced reasonable jury plain- to the explained invitation. was within the acquiescence of knowledge and alleged “that tiff had with making . . deliveries . purpose defendants and for building garage to enter gasoline he accustomed was type lift of door.” through large overhead allega- other this and Long denied instructed that defendant that the codefendant They told were also plaintiff. tions of “did not company that the automobile planing mill claimed own than its persons or other any time, invite the any ap- door, or said agents to use servants, employees paratus therewith. ...” connected defendant have requested would
The instruction clearly jury, since the but presented issue more the last adequately pre- instruction were referred to in that issues instructions, not error to other sented to instruction. refuse defendant’s judg- to sustain a evidence
Although there was sufficient the evidence was Long personally, ment defendant there were remains whether conflicting, and the trial during course of errors committed leading jury to reach its prejudiced defendant have Defendant evidence. ground other than the verdict some submitting erred contends that the court ruling confusing and in form of verdict that was bound to the estate executor after to sue defendant as on the was to cause effect of these errors closed, and that the “against by returning a verdict jurors to believe acting as executor Long, an individual Ralph C. *15 they imposing deceased,” were Gray, of the of C. A. estate ultimately be borne liability that would a the defendant by Long individual. by as an the estate and not jury was submitted The verdict only form of verdict request, and was plaintiff’s it Long. The liability defendant regard submitted with the verdict request to have defendant’s trial court refused error that this was by jury. Defendant contends clarified vague uncertain to ground that the verdict is too on the verdict, Long. The against defendant judgment a support Long” Ralph C. however, “against is “ A. of C. acting estate individual as executor phrase an descriptive. The ver merely Gray, face deceased” is on its (See eliminating description. by may dict modified be ; 338, 340 P. Perry, 152 Mary’s Hospital Cal. [92 864] v. St. 72
Kirchner v.
Muller,
N.Y.
665,127
N.E.2d
A.L.R.
[19
681].)
Defendant
invoked
by
a statement made
foreman
of the
and an affidavit of
juror,
another
to show
that the
understood
given against
that the verdict was
Long
representative
in his
capacity.
A verdict
im
peached by the jury,
only by
however,
showing
that it was
by
arrived at
(Toomes
chance.
Nunes,
Defendant contends that apparent from the record jurors that the were confused the form of the ver dict and that alleged certain other during errors the trial led them to return a verdict in the belief that it was estate liability and that thereunder would be borne distributee by Long. and not Defendant’s claim of prejudice analogy based on an prejudice involved inform ing that a personal injury defendant in a action car liability ries insurance.
It cannot disputed that there was considerable confu- part sion on the of counsel parties for both part and on the of the trial judge as to nature of an execu- tor for the torts an employee estate, particularly of an when the estate is closed before the brought. action is It does follow, however, that the confusion was communicated jury, for most of the discussion of the Long’s nature of liability occurred in the absence jury. theory plaintiff’s right Long sue a represen
tative capacity presented at the trial although was that estate closed, had been Long was liable as an individual act ing executor, as an vague apparently status that includes capacity both as an individual and as an executor. was contended that judgment the verdict and should describe capacities both because defendant had a of reim bursement out of the assets of the estate and that if it was error so Long, to describe defendant this court, appeal, modify should in accord with its view of the law. “We must sue the and we must him executor sue as him Long. individual but we do not sue We sue Ralph Long, individual, C. who is the executor.” It necessary was claimed that this “he indi because is not vidually responsible” ultimately and the estate will have the any judgment against burden theory, however, him. This *16 not presented jury, to the and it cannot therefore prejudiced against relied on to that the show defen Long. dant however, indicates, presence record of the any panel but prospective jurors before were
impaneled, plaintiff’s counsel certain made statements that jury’s should not have in the presence. been made In reply question by to a defendant’s counsel to whether against Long considered the action as one him per- sonally, counsel for plaintiff is, stated that the situation you individually “That sue the executor and under— at least the have, certainly dictum of the we cases that and just under obligation rule—that of the individual estate, eventually.” ques- transferred to the In answer to a tion the trial court as the plaintiff to whether had at- tempted charge Verheyen) (Long and “with executors liability capacity as individuals in a other than as executors estate,” replied counsel that he didn’t “But know. only I trying say am operated by that the business is them and just that under the your law we do what Honor has said, strange might be, individually as it we sue them because they running and apparently business the circuitous approach is they they this: if liability, That incur this have incurred it not any own, because of misfeasance of their they are entitled recover from the estate.” At time these statements were made objec- made no they prejudicial merely tion that were questioned but cor- plaintiff’s rectness of view the that the law directly indirectly that of the estate.
Defendant claims that the statements constituted miscon- duct urges of counsel alleged ground misconduct as reversal, having called the trial court’s attention to the prejudicial character of the in an statements affidavit support of his motion for a new trial. Since defendant objection made they time statements were any made and answered them their he merits, waived they claim If constituted misconduct. prejudicial, statements were defendant should have called trial objection court’s attention at the proper thereto time they made, giving were oppor- thus the trial court an tunity discharg- possible prejudice by to avoid claim of ing jury panel having from selected a new panel (See that had not heard v. Ocean the remarks. Hicks *17 ; Railroad, Inc., P.2d Cal.2d 850]
Shore ; col Golden, 300, 309 cases Estate 4 Cal.2d 962] of rely these 756, 757.) Nor can defendant on lected 108 A.L.R. during the any that error committed to statements show in subsequent prejudice. the Since of trial resulted course in willing to discuss the at the time defendant’s counsel was the jury question of the nature of panel the the presence of may any prejudice that liability, he contributed to executor’s any event, this discus from In have this discussion. resulted jury, those the the impaneling took before of place sion jurors in this case the later became panel members of who they were the nature of the case yet had not been advised of they followed the remarks It is doubtful whether to decide. trial, jurors the the Moreover, at the close of of counsel. they not consider statements were instructed that were occurring during the course of the trial. counsel of the error committed The also contends that defendant in ruling Long subject to a judge trial in that was suit alleged to the confusion representative capacity contributed arising jury verdict. After was from form of the case, commencement of the trial impaneled and at the any testimony Long objected the introduction of defendant trial capacity. in The court against representative him jury’s objection. ruling made in the This overruled the at discussion that time presence, but there was no liability. subsequently Long’s dis- The matter was nature judge again jury, the trial in the absence of the cussed rul- Long as an executor. ruled that could sued same verdict, for directed ing was made on defendant’s motion present preju- been jury was not could not have but ruling. diced rulings in the claim that only basis for fact after the first prejudicial error is the that
constituted ruling Long thereafter defended the case in defendant both at- jury’s It is true this served to call the capacities. Long an executor the fact that defendant had been tention to obviously necessary jury for the estate, but fact, very against informed of basis of the case Long that he had been one the executors the time if it injury occurred. Even be assumed the effect ruling place the trial court was to an of the erroneous unnecessary Long de- burden added and capacity, it does follow fend case a nonexistent any judgment against Long would that the assumed that supposed paid by repre- the estate that he was have to be assumption If it was the face of sent. made this contrary. The trial a clear and correct instruction to the further in- “You are instructed follows: structed that of California under the laws of State Gray A. against action be maintained the estate of C. capacity against defendant, Ralph Long, C. defendant, Long, the Executor of said estate. As you for determination is action which is submitted to therefore, defendants, involved as an individual. The two Diego Planing Ralph Long and San this action C. Mill, corporation.” the court reminded point
At another in the instructions jurors concerned with the they were not They informed executor. were estate or of as an *18 that to the fact that their attention had been “called Gray, not, under the law of this deceased, of A. is estate C. An executor state, plaintiff in this action. answerable to the all, if at operates answerable, of an estate who a business is instructions, it cannot as an individual.” In of these view jury that was assumed that believed against Long any than an individual or capacity other as any liability might their verdict would that that result from by anyone Long. be borne but contends, however, that correct instruc
Defendant these jury’s may verdict be not be relied on to sustain tions jurors that if the codefendant cause the were also instructed negligence combined planing negligent mill and this Long, negligence, any, Ralph if the defendant with the “of C. in cause said executor, proximately and as an individual plaintiff ., your be in favor of . . then verdict will by itself, might against instruction, and all defendants.” This Long jury that could be informing the be understood as individual, but in view of an executor and as an held liable as as an executor could not be sued the instruction that he Ralph only in the action were that the defendants involved may assumed Diego Planing Mill, it not be Long and C. San the three When interpreted that the this instruction. so that together, apparent it is are considered instructions in this correctly that the two defendants instructed planing the codefendant Long an individual and case were Long an executor was the estate nor mill; that neither subject suit; that if a verdict were returned Long it would be because he was answerable for the accident as an individual; and negligence that if the employee of an planing mill combined negligence with the employee of an of the estate accident, to cause the then both as an individual and planing mill would be Whether liable. not the among confusion counsel and the trial court as to the nature of the tort of an executor after discharge was unavoidable, apparent it is from the record that aside from the plaintiff’s statements of presence counsel jury panel, which were defendant, waived there was nothing presented jurors to the be used to show that the ruling erroneous and the form of the verdict resulted in confusing them to such an extent they returned a verdict prejudice based on rather than the evidence be fore them. Defendant jury’s contends that verdict award
ing $87,575 plainly excessive in view of the fact $73,000 that about of that general sum constituted damages. The verdict undoubtedly high. Nevertheless, it is not the reviewing function of a jury’s to interfere with a award damages grossly unless it is so disproportionate compensation reasonable limit of warranted the facts that it shocks the justice court’s sense of a presumption raises passion result of prejudice. (Zibbell v. Southern Co., 160 237, Cal. P. 513].) The Pacific amount of the verdict must be viewed in light evidence before (Zibbell the trial court. Southern Pacific Co., supra 254.) court, The trial denying a motion for trial, new found that the verdict was. not excessive. This weight decision lends jury’s (Bisinger award. v. Sacra Lodge 6, mento No. 187 Cal. 768]; Mc *19 Sweeney Bay v. Co., East Cal.App.2d Transit 807, 814 787].) There is support considerable in the evi dence for the approval trial court’s of the amount awarded.
It accomplish purpose would to recite all the evidence relating plaintiff’s injuries. may to noted, however, period that for a years of over four undergone he has thirty- operations one for the purpose alleviating of disfigure- his ment and he faces operations. additional The accident ren- dered him unsightly so that it would be unreasonable to expect him forego surgery. restorative His highly doctors were they surgery, qualified in informed the plastic jury already repair, slight measure, in length steps taken operations compli- damage his were appearance. painful. Many operations cated and consisted of of raising body pedicles parts of of his attach- from various ing parts face then his This them first nose. procedure unsuccessful, requir- repeatedly attempt each ing new skin and removals of substantial amounts of flesh. years large plaintiff spent part For four has of his over hospital. many predict time in the It is difficult to how re- maining may operations necessary. “very plaintiff considerably
Defendant that concedes disfigured” always that he will and the likelihood is be. plaintiff Since is a salesman as well as a truck he has driver, suffered earning capacity. reviewing a substantial loss in A ordinarily does not its for substitute that court, which have and trial evaluated in terms damages pain, humiliation, disfigurement, and loss of earning capacity by (Kelley plaintiff. Hodge suffered System, Transportation 598, 76].) In Cal. testimony view concerning plaintiff’s of the extensive medical history uncertainty and the restoration, his future we conclude grant trial court did not in err its refusal to trial ground new or to reduce the award on the of excessive damages.
Defendant, Parks, 46, reliance Karr v. 44 Cal. also contends plastic surgery cost al improperly lowed as a damages. measure of In the case, Karr decided plaintiff sued to recover for services rendered and expenses incurred in the cure of wounds inflicted upon his daughter. infant Much expense was the result of surgical treatment unsightly disfigure for removal of an by injury. ment caused This court held that restora tion undertaken voluntary and could not be damages element of an action his behalf. There were indications the case that the infant had previously recovery obtained a based on the her continuance of de formity. Any expressions in the Karr case to the effect an in- jured party is not damages entitled to in the form of ex- penses incurred surgery necessary restorative made negligence disapproved. defendant must be (See Rest., Torts, 924(c).) day Present longer regard standards no § plastic surgery strange as a foreign art. Indeed, there *20 injured required to person
be when an would be occasions (Goodwin undergo plastic surgery mitigate damages. to Giovenelli, 87].) present In case Conn. A. the undergo essential for some restorative was surgery impairment breathing of the of his caused because necessary by expe- take steps the accident. It was also healing wound, by dite lack the of the which was retarded injured supply of blood to the member. judgment is affirmed. J.,
Gibson, Shenk, Carter, J., 0. concurred. J., EDMONDS, J. record, I the the the read form of As Long verdict, rulings requiring combined with erroneous to lead to confusion executor, to defend was bound undoubtedly gave impression that the by not him. ultimately paid by the estate and would modify regard- agree I could verdict the court quite ing descriptive, but it is certain certain terms as regard verdict not did not them. The so its is considered connection impeached, but when form trial, a clear throughout there is other errors with the effect, showing although against Long, it read that, record damages against jurors it to be an award of believed indemnified. Long would be estate for which counsel, presence made plaintiff’s The statements indirectly that liability directly jury, determining disregarded in estate, not be should during the other errors committed whether course time statements were prejudicial. At the those trial were yet had ruled made, judge the trial not representative in his Long properly sued whether Long objected to introduc- Shortly thereafter, capacity. ca- representative any testimony in a tion of presence of the in the pacity. objection was overruled in the argued counsel Subsequently, the matter was jury. preju- then called attention jury. absence him to defend before ruling requiring effect of a dicial and an executor. an individual capacity in the dual executor, as an that he could be sued the court decided But theory in some form evidently of his upon from capacity.” This evident representative “individual that, although probably the estate judge’s the trial statement as an executor and should liable, Long could be sued in order as an executor an individual and be described as recovery the assets of the estate. any right of out of protect *21 but jurors’ presence, in the place not take discussion did This to the effect ruling upon the motion they the were aware of The effect of an executor. Long properly sued as that was executor. Long defend as ruling force to this erroneous was to according to the errors, effect these prejudicial The action by that no a correct instruction plaintiff, was cured Long against against the estate or could maintained be only per liable Long that capacity his as executor and considered, must sonally. that instruction be The effect of contrary rulings of directly the however, in connection with prosecuted jurors that the suit was the trial The knew court. had de and he against Long capacity as an executor his entirely incon capacity. fended in The instruction that jury only submitted sistent form of verdict with Moreover, the in Long. providing recovery against for a also inconsistent, for the court structions themselves were mill was jury planing instructed the that if the codefendant negligence, if negligence negligent, and combined with its and Long, an individual any, Ralph “of C. as ., your injury . . then executor, proximately cause said against de all plaintiff verdict be in favor of the will . ” fendants in- necessary jury to be Unquestionably it was Gray estate, Long’s of the formed of as an executor service alone, that fact assumption, but there from is no basis for indemnity, that right of or that the executor would have a liability directly indirectly that of the estate. or necessary jury confusing form it Nor was to submit of verdict. were un- plaintiff position takes the that the errors
The on the unsettled state of the law avoidable because of the is that liability The basis of his contention of an executor. judge trial knew the nature of plaintiff neither the nor the liability closed because after the estate was executor’s by question previously decided this court. has not been any point which However, the unsettled state of law the trial court to commit confused the and caused preju- complaining preclude error not from does dicial effect that error. question of the if it assumed that
Moreover, even be liability representative capacity of the executor
so unsettled that it could not be determined a trial court properly and was appeal, left for initial determination on there necessity was no of verdict submit to the form that, together ruling with the trial reason- court, would ably imposing understood form of some liability against the have been estate. least that could mitigate done to prejudice confusion and the minds of jurors was to submit them a that could be verdict only against understood imposing liability executor personally. Certainly instructed, could been have clearly damages that conflict, without award of against Long personal obligation was his the estate, directly indirectly. event, either In if were later upon appeal determined could imposed prejudice the estate, no would have re- ability pay sulted to the plaintiff, because the has relation to the as to is at fault. who prejudicial character errors in this case is *22 analogous prejudice the allowing in to be involved informed injury that a defendant in a personal action carries (Schlenker Egloff, Cal.App. 393, insurance. v. 133 398 ; Co., v. see Pierce United Gas & Electric [24 224] 176, 161 188 700];. collected, Cal. P. 56 cases A.L.R. [118 1418; 1319.) 105 A.L.R. probability There is the same would be more inclined a verdict to find Long if it believed would than if it he be indemnified under (See stood that he would have to bear the alone. burden Brown Yocum, v. Cal.App. 621, 845].) 625 P. Al though faith, there was showing errors, bad of inso they impressed as far with the judg the idea that against Long ment paid estate, preju would be were dicial and ground question reversal, because of de responsibility fendant’s was so close that a verdict in his equally (see favor would have at been least reasonable Citti Bava, v. 954]; Egloff, Cal. Scklenker supra), every and there is reason to believe that the errors substantially influenced the result.
It is contended prejudicial that the errors were not ground ultimately will pay the distributee have to judgment, plaintiff because concedes that the record personal negligence Long. Obviously, shows no of the dis- tributee not plaintiff’s bound concession. necessarily to the either the interest of personal to show negligence, and it cannot be assumed that litigation evidence in to which the distributee was a Long, executor, personally party would not show that duty fault, or that he violated to the heirs would some any right indemnity. Also, the distributee foreclose since Long’s party appeal, is not a to this indemnity against the distributee cannot now be determined. my reasons, opinion,
For in should be these reversed.
Spence, J., concurred.
SCHAUER, J. In I dissent. liberal construction of sec- tion 572 of the Probate Code I would hold that in such a case exclusively executor should be liable repre- his capacity. sentative When an executor conducts business of an estate under of the court and Pro- authorization bate he personally Code is not liable for the contract debts obligations incurred in carrying such business. No more, think, I he, personal fault, should the absence of personally employes. be liable for torts of estate His actions premises in the purely capacity of executor. The injury employe whose fault causes the to another is not the employe personally. He the employe executor only representative the executor in the latter’s status. The respondeat superior, pass then, doctrine should the burden employer, representative on to real executor to the capacity against but not otherwise. that an
It is asserted that the law which holds officer of a respondeat corporation is not liable under the doctrine superior employes except where the corporate for the torts of executors; that fault, applied officer is at cannot directly employe’s liability can related corporate entity sued, and can be corporation the latter is an because *23 entity and decedent is not cannot but that the estate of a If persuasive. proposition I do not find this be sued. carry entity on a busi- enough of an estate of a decedent is losses, profits realize and ness, pay debts, to contract and entity In fact the books enough it of an to be sued. should be acting through estates, replete with cases in which and been administrators, have sued sued. executors or Proc., seq. Civ. (see et and Code Probate Code §§ in 369) proceedings relation certainly authorizes such § question particular is: Is causes ex contractu. The here in action authorized as executor his official tort capacity ? may (Prob. Code) that declares “the
Section operation the executor ... to continue authorize subject an extent and to such decedent’s business to such for the inter may the court to be best restrictions as seem to . ” operation interested therein The est of the estate and those party ordinarily participation includes as of a business may arise from litigation in as or defendant such actions are not abnor normal conduct of business. Tort seriously Surely in the business. it cannot be mal conduct of a here involved could be asserted that a such as that business possibility definite periods carried on for extended without the experience dem employe; human of tortious conduct of some contrary. onstrates the authorizing in that the court course,
Of not intimated com- intended authorize the of the business the conduct the doc- application But the employes. mission of torts express or depend on respondeat superior does not trine of (16 Cal.Jur. tortious conduct. intentional authorization of 61.) 1101-1102, § majority opinion in the me that the declaration seems to of tort any effect on “If 572 has section well as that section as purpose of
liability estate, the carrying for the the will in authorization purpose applying may fully carried out be business on of the liability regard to such Trusts the Restatement rules of representative’s as well [personal the trustee] is thor- estate” assets of the out of reimbursement If it is impractical. unrealistic, unwarranted oughly justice ultimately and liability is recognized that imposed should estate, then that of through the round-about rather than estate directly on the effect, says, in opinion opinion. in the espoused method legal- liable personally executor nonnegligent may ulti- he because substance in actual form istic but inevitably must method Such the estate. mately from recover leaving result often litigation multiply tend to actuality as well with nonnegligent executor liability. personal form is be- present substance Code) in its (Prob. Section not, case. We should in this initial construction fore us for *24 so question, construction which seems open this evolve a delays in final set- produce multiplicity suits, certain to admittedly un- occasionally, estates, and, at tlement of least stemming the unrealistic just actual from responsibility, all busi- executor to conduct a concept authorization to an carry it authoriza- capacity not with ness in his official does capacity torts respect to sue or sued the same tion be doing very thing authorized. committed in judgment case, well the verdict The this as as as war- based, and substance which such form it Long against running its as the defendant rant construction judgment solely as construed the executor of estate. So Long precluded by well the facts that could be affirmed unless discharged proceedings had and been as executor the estate closed, reopened, and of the action. prior to institution questions competence as would arise which Long reopening probate to defend as executor without enforceability validity and proceedings, and as to the I judgment, suggested, if as not here reach be- construed do thereof, majority holding, cause discussion in view majority opinion stage. at con- would academic running against Long personally judgment strues the as Mr. my con- and as so construed In view it should be affirms it. only against if strued, all, and as properly can be affirmed If he Mr. executor of the estate. it cannot affirmed representative capacity him in his then should proceedings. for further reversed and the cause remanded Hence, regardless might be reached of what conclusion Long’s capacity as executor and as to Mr. to defend validity enforceability if construed representative capacity, compelled I am only in his bind majority’s judgment opinion. dissent from 4, rehearing denied Appellants’ June petition Ed- to read as above. opinion and the was modified rehearing. J., for a monds, Schauer, J., Spence, voted J.,