CHARLES LEHMUTH, JR., as Guardian, etc., et al., Respondents, v. LONG BEACH UNIFIED SCHOOL DISTRICT, Appellant. MARCEL V. NARET, a Minor, etc., et al., Respondents, v. LONG BEACH UNIFIED SCHOOL DISTRICT, Appellant.
L. A. No. 25620 | L. A. No. 25621
In Bank
Feb. 5, 1960
53 Cal. 2d 544
Joseph A. Ball, James J. Baker, Alfred D. Williams, Madden & McCarry and Thomas F. McCarry for Respondents.
MCCOMB, J.—Defendant Long Beach Unified School District appeals from (a) judgments in favor of plaintiffs and (b) orders denying its motions for judgments notwithstanding the verdicts, in actions for personal injuries sustained by plaintiffs1
Facts: Defendant Long Beach Unified School District (hereinafter referred to as “the district“) was organized as such (see
Viewing the evidence in the light most favorable to plaintiffs, the record discloses that Gordon J. Gearhart and Ed Leibowitz were employed as assistant technicians on the public address crew of the Associated Student Body of Long Beach City College (hereinafter referred to as “the student body“). Donald Schmidt was head technician. All three were students at the college.
The student body had arranged a homecoming parade upon the streets of Long Beach for the evening of November 10, 1955. The parade was conducted under the supervision of faculty members of the college. Gearhart was directed to handle the sound trailer with the assistance of Leibowitz. This trailer had been purchased with funds of the student body, but was registered in the name of the college. It was to be taken to Buffum‘s store and there plugged into an electrical outlet so that the floats could be announced as they passed by. Gearhart, who had borrowed his uncle‘s automobile for use in towing the trailer, hitched the trailer to the car, using a new hitch which had been furnished by the dean of activities of the college.
Gearhart had worked on four previous occasions when this sound trailer was towed upon a highway; and on November 10 he hitched it to the automobile in the same manner as had been done on previous occasions. No safety chain was used on November 10 or on those previous occasions, as required by
Gearhart had never seen a safety chain in the trailer or anywhere else, nor had he been told to use one; the subject had not been mentioned to him. He did not know that it was customary or necessary and had no information about the statutory provision.
As the sound trailer was being towed along Ocean Avenue on its way to Buffum‘s store, it hit a rough place in the street caused by some excavation work, broke loose, went over the curb, and hit plaintiffs Virginia A. Lehmuth and Marcel V. Naret, who were looking into a photographer‘s window, seriously injuring them. Plaintiffs were students of the college. They sued the district, the student body and Gearhart.
The jury returned verdicts in favor of Gearhart and the student body, while assessing damages against the district (a) in favor of plaintiff Naret for $10,178, which was reduced on motion for a new trial to $5,178, and (b) in favor of plaintiff Lehmuth in the sum of $277,844.
These questions are presented:
First. Did the verdicts in favor of Gearhart and the student body exonerate the district from liability?
No. The district contends that its liability for the acts of Gearhart was derivative or secondary and that the verdicts exonerating Gearhart and the student body operated to free it from liability. The district relies upon the well-settled rule that where recovery of damages is sought against a principal and an agent, and the negligence of the agent is the cause of the injury, a verdict releasing the agent from liability releases the principal. (Bradley v. Rosenthal, 154 Cal. 420, 423 [97 P. 875, 129 Am.St.Rep. 171]; Bishop v. Superior Court, 59 Cal.App. 46, 49 [209 P. 1012].)
The foregoing rule is not applicable to the facts of the present case, since it was not tried upon the theory of respondeat superior and the jury was so instructed. The liability of the district is a primary one created by statute and is entirely separate from that of Gearhart.
Sections 16141 and 16142, respectively, of the Education Code direct: “The governing board of any school district may authorize any organization composed entirely of pupils
“Any group of students may organize a student body association within the public schools with the approval and subject to the control and regulation of the governing board of the school district. Any such organization shall have as its purpose the conduct of activities on behalf of the students approved by the school authorities and not in conflict with the authority and responsibility of the public school officials. Any student body organization may be granted the use of school premises and properties without charge subject to such regulations as may be established by the governing board of the school district.” (
In addition,
Thus, it clearly appears that the governing board of the district had a primary duty to reasonably supervise the members of the student body while they were on the school grounds and while they were using school property
From the evidence deduced during the trial, the jury could have reasonably inferred that the district did not use ordinary prudence in carrying out its duty to properly supervise the members of the student body, in order to guard members of the public against their youthful impetuosity and lack of judgment when their activities came in contact with the public. As indicated above, the faculty and other members of the college staff were employees of the district; and the student body, though a separate entity in one sense, was subject to their supervision. Mr. Orian M. Landreth was dean of activities of the college, having supervision over all student activities outside the classroom. Participating students earned credits for such activities, just as they did for their intellectual pursuits.
The district introduced testimony of former students, who had done similar towing work, to the effect that safety chains were used and were kept in the trailer. The head gardener of the college said they were hanging on the wall of the shack where the trailer was kept. Messrs. Schmidt, Gearhart and Leibowitz testified that they were not furnished with any chain, did not use one, and never saw one and that the subject was never mentioned to them.
Since one of the district‘s normal activities is the furnishing to students for use upon the public highways of sound trailers which must be hitched to a towing vehicle, it would seem that the subject of safety chains was of sufficient importance to require specific supervision by the district‘s employees. When the district, through negligent supervision, permitted a tow car and trailer upon a public street
It was not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities in order to establish that their failure to provide the necessary safeguards constituted negligence. Their negligence is established if a reasonably prudent person would foresee that injury of the same general type would be likely to happen in the absence of such safeguards. (Taylor v. Oakland Scavenger Co., 17 Cal.2d 594, 600 [5] [110 P.2d 1044].)
Therefore, the rule is applicable that where, as here, there is a primary liability on the part of a principal, and the principal owes a duty directly to the plaintiff, and the principal‘s liability does not depend on the doctrine of respondeat superior, a verdict in favor of an agent of the principal is not inconsistent with a verdict against the principal. (Jensen v. Southern Pacific Co., 129 Cal.App.2d 67, 69 [1] et seq. [276 P.2d 703]; Howard v. Triangle Freight Lines, 109 Cal.App.2d 620, 624 [1] [241 P.2d 35]; Barsoom v. City of Reedley, 38 Cal.App.2d 413, 420 [7] [101 P.2d 743]; McCullough v. Langer, 23 Cal.App.2d 510, 516 [2] [73 P.2d 649]; Rest., Judgments (1942), § 99, Comment b, p. 494.)
Second. Did the trial court err in permitting plaintiffs to introduce evidence on the question whether any member of the faculty of the college had asked Gearhart if he had a California driver‘s license and in instructing the jury as follows: “You are instructed that a non-resident minor between the ages of 16 and 21 years who comes into the State of California may operate a motor vehicle for a period of ten days immediately following the entry of such non-resident minor into California without obtaining an operator‘s or chauffeur‘s license from the Department of Motor Vehicles of this state. During such period of ten days said non-resident minor may drive on California highways. If said non-resident minor desires to drive a motor vehicle on the public highways after a period of ten days immediately following the entry of such non-resident minor into California, he must apply for a license and be examined in the manner provided by law by the Department of Motor Vehicles of the State of California. You are further instructed that it would not be an act of negligence on the part of said minor to drive motor vehicles on the public
“The Department of Motor Vehicles of the State of California has the duty to give an examination to all applicants for license to drive on California highways which examination includes a test of their ability to drive and a knowledge and understanding of the provisions of the vehicle code of the State of California governing the operation of vehicles on the highway.”
No. Plaintiffs’ attorney twice asked Gearhart while he was on the witness stand if he had a California driver‘s license at the time of the accident, but objections to such questions were sustained. Plaintiffs’ attorney then asked Gearhart whether any member of the faculty of the college had asked him if he had a California driver‘s license, and the court ruled that such evidence was admissible. Subsequently, at plaintiffs’ request, the jury was instructed as quoted above.
There is no question that possession of a driver‘s license is immaterial in determining whether Gearhart himself was negligent at the time and place of the accident. If an accident occurs, the determination of care or lack of care must be determined from the facts of the accident. (Strandt v. Cannon, 29 Cal.App.2d 509, 518 [85 P.2d 160].)
However, the evidence in question was introduced not for the purpose of showing negligence on Gearhart‘s part, but, rather, for the purpose of showing a general lack of supervision by the district over him in his use of the vehicle which caused the injury. Since the theory on which plaintiffs sued the district was that its failure to supervise Gearhart in such activity was a proximate cause of the accident, evidence of a general lack of supervision with respect thereto was admissible.
Third. Did the trial court err in instructing the jury that the care required of any person under the age of 21 years is not to be judged by the standard applicable to an adult, but by that degree of care which might reasonably have been expected of a child of like age, capacity and experience, under the same or similar circumstances?5
No. This instruction was directed to the conduct of Gearhart, not the plaintiffs, for there was no claim of contributory negligence. The instruction correctly states the general rule. (Cahill v. E.B. & A.L. Stone Co., 167 Cal. 126, 139 [138 P. 712].) A minor‘s age alone, though it be 18 years, does not as a matter of law establish maturity such as to impose upon him or her the standard of care applicable to an adult. (Guyer v. Sterling Laundry Co., 171 Cal. 761, 763 et seq. [154 P. 1057]; Satariano v. Sleight, supra, 54 Cal.App.2d 278, 283 [7].)
Fourth. Did the trial court err in overruling the district‘s objection to certain motion pictures of plaintiff Lehmuth and the exhibition of the same to the jury?
No. About four months after the accident, a moving picture was taken of plaintiff Lehmuth, which picture is described by the district as follows: “Despite the fact that oral testimony had been given concerning the condition of Virginia Lehmuth while in the hospital, the existence and use of a tracheotomy (insertion of a tube in a slit in the trachea, the ‘windpipe‘), the existence and use of a Levin tube for feeding (tube through nostril into stomach), her unconscious flailing of arms and body, flinching, and other similar matter . . . there was offered at the conclusion of plaintiffs’ case in chief a motion picture film . . . taken of Virginia Lehmuth in the Seaside Hospital by Mr. Brugwin.”
The picture corroborates the oral evidence of plaintiff Lehmuth‘s condition, and the trial judge, in the exercise of his discretion, held that it was not inflammatory. It was proper to receive the moving picture in evidence. (People v. Cheary, 48 Cal.2d 301, 312 [8] et seq. [309 P.2d 431]; People v. Carter, 48 Cal.2d 737, 751 [11] [312 P.2d 665].)
Fifth. Did the trial court err in failing to give the district‘s requested instruction concerning supervision and auditing of funds of the student body by the governing board of the district?
No. The proposed instruction quotes
The instruction would have informed the jurors that the duties thus imposed upon the district “are duties separate and apart from any other duties it may have . . . duties of a fiscal supervision as distinguished from duties which a district may have to supervise student activities and conduct.” The proposed instruction concludes: “Accordingly, you are instructed that any evidence received in this case, tending to show supervision, auditing or other control of funds of the Associated Student Body is to be disregarded and is not to be used by you in determining the liability, if any, of the School District.”
Considerable evidence had been taken upon this subject and the district had repeatedly objected, but there was no error in refusing the requested instruction. It would have required the jury to ignore part of the district‘s statutory duties of supervision of the student body. These sections, 16143 and 16144 of the Education Code, are but specialized directions complementing
Sixth. Was it reversible error for the judgment to run in favor of Virginia Lehmuth‘s guardian rather than Virginia?
No. The action was started in the name of Charles Lehmuth, Jr., as general guardian of the person and estate of Virginia. Later a written stipulation was made by all parties, including the district: “That, plaintiffs may substitute for and in the place of the plaintiff, Charles Lehmuth, Jr., guardian for the person and estate of Virginia Ann Lehmuth, a minor, the plaintiff Charles Lehmuth, Jr., guardian for the person and estate of Virginia Ann Lehmuth, an incompetent.”
This was followed by an order of the court approving the substitution. Thereupon, a second amended complaint was
The point was not raised below. Of course, the real party in interest is Virginia, not her guardian, and the title of the case should have been molded accordingly, but the district‘s objection does not go to the merits of the action. The rule is here applicable that the failure to properly entitle an action is waived and cannot be raised for the first time on appeal where no objection is made in the trial court and the case is tried on the theory that the pleadings are of such form and substance as to properly frame the issues actually tried. (Westphal v. Arnoux, 51 Cal.App. 532, 536 [3] [197 P. 395].)
The judgments are affirmed. The orders denying the motions for judgments notwithstanding the verdicts are affirmed.
Gibson, C. J., Traynor, J., Spence, J., Peters, J., and White, J., concurred.
SCHAUER, J.—I concur in the judgment and, in general, in the reasoning and conclusions stated in the opinion authored by Justice McComb.
It is my view, however, that minors who undertake to drive motor vehicles upon the public highways of this state should be subject to the same rules governing operation of such vehicles and to the same liability for breach of such rules, as are adults.
Notes
Section 4381 gives the superintendent of schools in the county in which junior colleges are located jurisdiction over all matters in which his office is concerned; and
“The rule just stated applies even when a child is charged with having violated a statute or an ordinance, or the evidence shows such a violation. The question whether or not the child was negligent still must be answered by the standard applicable to children as I have stated it to you.”