Wysock v. Borchers Bros.

Defendants appeal from the judgment rendered against them in an action for damages for personal injuries sustained by plaintiff when his automobile was hit by a cement truck owned by the defendants Borchers Bros., and driven by their employee, defendant Bidar. They appeal, also, from an order denying their motion for a new trial.

Appellants claim the judgment should be reversed for these reasons, asserted by them: (1) As a matter of law, the negli

In respect to their first point, appellants concede that if respondent’s testimony is worthy of belief the evidence supports the verdict. They claim that certain photographs in evidence, taken of the vehicles after the accident, demonstrate conclusively that the collision could not conceivably have taken place where respondent said it did, and render respondent’s account of the movements of his car and of other vehicles inherently improbable and entitled to no weight whatsoever. Before considering these photographs, it is desirable to give a brief résumé of the other evidence in the case.

The collision occurred on the morning of November 10, 1947, at the intersection of Lincoln Avenue and San Carlos Street, in San Jose. San Carlos Street is an east-west arterial, 77 feet 6 inches wide, with a center dividing strip 13 feet 6 inches wide. The roadway on either side of the center strip is divided into two traffic lanes. The outer lane next to the curb is 19 feet 6 inches wide; the inner lane, 12 feet 6 inches wide. The center strip does not extend into the intersection with Lincoln Avenue. Where the center strip terminates on either side of the intersection, there is a raised traffic island, with a guardrail on the end away from the intersection and a sign on the end toward the intersection. Lincoln Avenue runs north and south. North of San Carlos Street the paved portion of Lincoln Avenue is 26 feet wide and is divided into two lanes, the west lane being 9 feet and the east lane 17 feet wide. There was an arterial stop sign on Lincoln Avenue, about 10 feet north of the north curb line of San Carlos. Respondent’s ear was moving southerly on Lincoln toward San Carlos, and appellants’ truck westerly on San Carlos toward Lincoln.

Respondent testified that he came south on Lincoln Avenue at about 25 or 26 miles an hour, stopped at the stop sign, looked east and west to observe traffic on San Carlos; saw a bread truck parked on the northeast corner of the intersection, which obscured his vision; put his car into low gear and moved about 6 feet beyond the stop sign, and saw two or three passenger cars approaching him from the east in the outer lane of San Carlos, the cars being about 100 to 150 feet away, and appellants’ truck in the inner lane about two car lengths behind the lead passenger car; that those vehicles

Appellant Bidar testified that he turned west into San

One Gebhart, a bystander, testified that he observed respondent’s ear coming south on Lincoln Avenue at about 30 miles an hour; that it did not slow down at any time before the collision; that as he watched it he caught a glimpse of the truck but did not see the latter long enough to estimate its speed. He located the point of impact at about the center of the outer lane of San Carlos Street and the westerly pedestrian crosswalk which extends north and south across San Carlos (some 20 feet north of the westerly traffic island).

Another bystander, Huebner, testified that he noticed the truck approaching from the east in the outer lane of San Carlos Street about half a block away from the intersection and that there were no other vehicles between the truck and the intersection; that he saw respondent’s car coming into view on Lincoln Avenue at a speed of 30 to 40 miles an hour; that the brakes were applied to it and the car skidded about 8 feet in the gravel at the side of the street, its speed reducing to 20 to 25 miles per hour; that the brakes were then released and the car continued at this speed into the intersection without stopping. He said he saw the truck approaching at not exceeding 20 miles an hour, and then the truck and the car came together; that as they met the front duals of the truck were almost on the easterly line of the west north-south crosswalk and the front of respondent’s car was about 3 feet from the westerly traffic island. An investigating highway patrol officer, Lee, testified that shortly after the accident Huebner told him that he, Huebner, did not see respondent drive through the stop sign and did not see respondent’s car before the impact. Huebner testified that he told Lee that he saw respondent’s car come into the intersection without stopping, and saw the accident.

Officer Lee arrived on the scene soon after the accident. He placed respondent’s car, as he found it, diagonally across the westerly north-south pedestrian crosswalk and the inner lane of San Carlos, pointing southeasterly, the right front of the ear about 8 feet east of the westerly traffic island. He said the truck was facing the left side of respondent’s car, a few feet from it, facing in a southwesterly direction, strad

Appellants claim that the photographs (Exhibits A to E, inch, particularly A and D) demonstrate that the truck was in the outer lane of San Carlos as it entered the intersection. That fact, in turn, demonstrates, they say, (1) that respondent was clearly guilty of contributory negligence in attempting to pass in front of the truck, if the truck was in the outer lane, and (2) that respondent’s testimony concerning the movement of his car and the movement of other vehicles was inherently improbable and physically impossible.

How do these photographs demonstrate that the truck was in the outer lane as it entered the intersection? The angle of the truck and the tire marks behind the truck (as shown in Exhibit D) forcefully demonstrate this fact, say the appellants. They claim that the photographs establish the point of impact some 15 or more feet north and west of where the plaintiff located it.

These photographs (Exhibits A to E) were shown to Officer Lee. He said they depicted the vehicles involved in this accident; that they generally depicted the position of the cars, taken at different angles at the scene of the accident; he did not know when these pictures were taken; he could not say that these pictures portray the position of those vehicles; he did not see them taken and had no independent recollection of where they were taken. There is nothing in the record to show when or where or by whom these several photographs

Exhibit D, upon which appellants also rely, is equally inconclusive. It was taken from the rear of the truck, apparently at a point in the northerly portion of San Carlos Street, east of the intersection, looking west. It shows the truck in the intersection, pointing at a slight angle southwesterly toward the passenger car. But the picture must have been taken after Bidar had backed the truck away from the car. We cannot be certain of the distance between the vehicles. Bidar said 2 or 3 feet. Officer Lee said several feet ; he was not certain as to the exact distance. Exhibits A, B, and C, showing side views of the front of the truck, suggest that Bidar may have backed it appreciably more than 3 feet. And there is no evidence concerning the direction in which he backed it, i.e., whether along the course it first traveled or a different course. Nor can we say that the marks leading back, perhaps a couple of feet, from the rear duals of the truck in Exhibit D, if tire marks, were made by this or some other vehicle. Officer Lee, asked if certain tire marks shown in Exhibit E (precisely what marks, the record does not show) were those he had observed, said “I just can’t recall whether those were the exact tire marks, or not. ’ ’ This evidence (which the jury considered and weighed with the other evidence in the case) is quite inconclusive, certainly falls far short of demonstrating that respondent’s testimony was inherently improbable and, as a matter of law, unworthy of belief. Instead, these photographs illustrate the aptness of the observation that “Perhaps there is nothing more certain about an automobile accident than the fact that the visible results afterward are not an infallible guide in determining what

The evidence which appellants claim should have been stricken related to the fact that Bidar, who operated the truck at the time of the accident, did not possess a chauffeur’s or a driver’s license. Appellant Bidar was being examined by respondent under the provisions of section 2055 of the Code of Civil Procedure. The following questions were asked, answers given, and motions and rulings made: “By Me. Lull [attorney for respondent] : Q. Now, Mr. Bidar, on the 10th day of November, 1947, you neither possessed a chauffeur’s or driver’s license, did you? A. That is right. Q. You didn’t have a chauffeur’s license? A. That is right. Q. Didn’t have a driver’s license? Mb. Custee [attorney for appellants] : I am going to object as incompetent, irrelevant, and immaterial, your Honor, move to strike the answer as incompetent, irrelevant, and immaterial. Me. Lull : I think that there are numerous cases to the effect that when a person drives a commercial vehicle they are supposed to be possessed of a certain degree of skill and-The Couet : Objection is overruled. Q. To clarify your answer again, you had neither a chauffeur’s nor a driver’s license, did you ? A. That is right. Mb. Lull: No further questions. Me. Custee: That is all at this time.”

After respondent rested and before putting on evidence of their own in chief, appellants moved to strike those questions and answers, and requested the court to admonish the jury to disregard them. The court denied this motion upon the authority of Moore v. Re, 131 Cal.App. 557 [ 22 P.2d 45 ].

Later, upon direct examination, Bidar testified that while in the Army he operated motor vehicles of a "type similar to the truck involved in this accident, did so from the latter part of 1941 until he got out of the Army in 1945; that he had his Army driver’s license; that he went to work for Borchers Bros., in 1946 and had been driving this type of equipment since then; that he took the state examination for a license and passed it but had not, prior to this accident, been able to get his license because he did not have a vehicle to use in

Upon the conclusion of the taking of testimony, appellants again made, and the court denied, a motion to strike all evidence concerning whether or not Bidar had an operator’s or chauffeur’s license.

Respondent contends that the motion to strike came too late, because the question was twice asked and answered before an objection was interposed. It is true that when a question is asked which clearly shows the answer sought to be elicited, an objection is deemed waived if not timely made. However, there may be circumstances (as when the answer comes before an objection can be interposed) when the doctrine of waiver is not reasonably applicable. Here, the delay in making the objection was slight. Counsel for respondent met the issue and the court decided the motion on the merits. There is implied a finding by the court that the delay occurred under circumstances which negatived a waiver. Respondént should not be permitted now to claim a waiver. If he had presented that point at the time the motion was made, appellants would have had an opportunity then to explain and possibly excuse the delay.

In support of the denial of the motion to strike, respondent invokes Moore v. Re, supra, 131 Cal.App. 557 , in which the court approved the admission of evidence that the driver of a truck did not possess an operator’s license, upon the ground that such evidence “was not admitted as a proximate cause of the injury, but was proper to be considered by the jury on the general question of negligence, and also as bearing on the ability and qualifications of the driver.” (Pp. 560-61.) The Moore case is not authority for the admission of such evidence as a proximate cause of the injury. Here, in the absence of a limitation, it was admitted for all purposes.

The Moore case has been criticized in later decisions, though not expressly overruled, for allowing such evidence on the issue of negligent operation of a vehicle. That ruling was predicated upon the fact that an operator’s license was no longer issued merely for identification purposes but was based upon an examination of the applicant to test his knowledge of traffic regulations and his ability to operate and control a motor vehicle. Our study of the licensing features of the Vehicle Code leads us to a different conclusion concerning

The nonpossession of an operator’s or chauffeur’s license is not of itself proof that a person is an incompetent or a careless driver. He may be exceedingly competent and careful but may have neglected for a few days or weeks to renew his license. It expires by limitation (Veh. Code, §§ 276, 277). Or, he may be a person of whom a license is not required, such as an officer or employee of the United States when operating a government vehicle on government business (§ 251), or a nonresident who has a license issued by his home state or country or whose home state or country does not require a license, during the period permitted and under the conditions prescribed by section 252.

Indeed, the refusal, suspension, or revocation of a license does not necessarily token an administrative determination that the applicant or licensee is negligent or incompetent. There are quite a number of grounds other than negligence or incompetence, for such action. Among such other grounds for refusal are these: Failure of an applicant to furnish the department of motor vehicles information required, or the use by him of a false or fictitious name in an application for a license (§ 271). A license may be suspended for these reasons, among others: Willful violation, for 15 days, of one’s written promise to appear in court, a promise given upon arrest for any violation of the Vehicle Code (§ 278); one’s failure to stop after an accident or to give certain information to other persons involved in the accident (§§ 292, 308); failure to satisfy a final judgment for damages or to furnish proof of financial responsibility as prescribed by sections 410 to 418, inclusive; or failure to make certain reports or to furnish security following an accident, as prescribed by section 419. A license may be revoked for any of the reasons for which issuance of a license may be refused (§ 306). It must be revoked upon conviction of the theft or unlawful taking of a vehicle in violation of section 503 or upon conviction of any felony in the commission of which a motor vehicle is used (§ 304).

Nor does possession of a license necessarily mean that the department has determined that a person is competent to operate the particular type of vehicle which in fact he is operating at the time an accident occurs. When issuing either an operator’s or a chauffeur’s license, the department may impose restrictions suitable to the licensee’s driving

Nothing that we have found in the statutory law indicates an intent upon the part of the Legislature to establish the possession of an operator’s or chauffeur’s license as a minimum standard of care in the operation of a motor vehicle or to create a presumption of negligence if one drives without such a license or to make unlicensed driving evidence of negligent operation of a vehicle. Quite to the contrary are the provisions of sections 754 and 755 of the Vehicle Code. They declare that no record of the suspension or revocation of any such license by the department of motor vehicles and no record of the conviction of any person for any violation of the Vehicle Code is admissible as evidence in any court in any civil action. The reasonable inference is that this licensing feature, while designed to promote safe driving upon the highways, is a device for the more efficient enforcement of the many and varied police regulations that govern the use of the highways.

Decisions subsequent to the Moore case tend to support the views which we have expressed. In Strandt v. Cannon, 29 Cal.App.2d 509 [ 85 P.2d 160 ], an instruction was held erroneous which told the jury that an operator’s license is a certificate evidencing the fact that its holder has demonstrated competency to drive a motor vehicle “ ‘and if the driver of a vehicle is unlicensed, that fact, if it is a fact, is prima facie evidence in the eyes of the law, that such driver is incompetent. ’ ’ ’ (P. 513.) The court, in the majority opinion, criticizes the doctrine of the Moore case and reviews authorities in this and other states, at pages 515 to 518 of the report. Justice Marks, in his concurring opinion, furnishes an especially cogent analysis at pages 519 to 523. We quote the following portion: “The instruction given requires the trier of fact to infer from the fact that Layton was unlicensed, (1) that he was incompetent ; (2) that from such incompetency he was negligent at the time and place of the accident; (3) that such negligence was the proximate cause of the accident. There is no rule of law that permits such piling of inference on inference nor any rule drawn from experience that would

“If it should be assumed that the lack of an operator’s license justifies the inference of the lack of competency of a driver, still the instruction should not have been given. In this kind of a ease the courts are not interested in the competency or ineompetency of a driver but only in his actions at the time and place of the accident. The question of his competency or incompetency is wholly immaterial to the questions at issue, namely, negligence and proximate cause. This rule has long been established in California.” (Pp. 519-20.)

In Hunton v. California Portland Cement Co., 50 Cal.App. 2d 684 [ 123 P.2d 947 ], the defendant claimed that the plaintiff was negligent because he permitted his son to drive his truck without a chauffeur’s license (the son had an operator’s license), and that the lack of such a license was evidence that the driver was negligent. The court disposed of that contention in these words: “ We believe the question is disposed of in the case of Strandt v. Cannon, 29 Cal.App.2d 509 [ 85 P.2d 160 ], where the proposition was clearly laid down that the driver’s negligence is to be determined by the facts of the accident, and that the failure to have an operator’s license is not evidence of the driver’s incompetence or negligence, or that such negligence, if any, was the proximate cause of the accident.” (P. 691.)

This does not mean that there can be no set of circumstances in a negligence case in which evidence of a driver’s lack of a license is admissible in respect to some issue framed by the pleadings. This was recognized in the Strandt case when it distinguished Owens v. Carmichael’s U-Drive Autos, Inc., 116 Cal.App. 348 [ 2 P.2d 580 ], upon the ground that there liability was imposed upon an owner who negligently entrusted his automobile to another on the theory, as alleged in the complaint, “that the defendant ‘negligently let and hired’ the automobile to a named man; that defendant ‘negligently permitted’ said man ‘to drive and operate said auto

Similarly, in Shifflette v. Walkup Drayage & Warehouse Co., 74 Cal.App.2d 903 [ 169 P.2d 996 ], such evidence was deemed proper upon the issue whether or not one of the parties had been negligent in employing a truck driver. The evidence was strictly limited to that issue. This appears from the following statement of the reviewing court, at page 908: ‘ ‘ The court instructed the jury that the evidence to the effect that the truck driver had no license was admitted only for the purpose of consideration in connection with all other evidence of the question of whether the owner knew or was put on inquiry to know that it was entrusting the operation of its truck to one who was not a competent driver. It was also stated in the instruction that in determining whether the company was negligent and whether' its negligence was a proximate cause of the injury the jury could consider what knowledge, if any, the evidence showed the owner to have concerning the lack of an operator’s license. ’ ’ In holding that the submission of this issue of knowledge was not error, the court distinguished the Strandt and Hunton cases upon the ground that those cases did not involve the employment of an operator of a motor vehicle, as did the Shifflette ease, and that the instruction given in the Shifflette ease was consistent with the general principles of law set forth in the Strandt and Hunton cases because it expressly told the jury that “ ‘the possession or lack of an operator’s license is not evidence that defendant, Charles Hameister, was or was not generally a competent driver; nor is it evidence that he was or was not negligent on the occasion in question.’ ’.’ (P. 909.)

In the instant ease, there was under the pleadings no issue concerning the competency of the driver of the truck, nor the element of employment by appellants Borchers Bros, of a driver under circumstances which charged them with knowledge or notice that he might be incompetent. Respondent

Respondent further urges that error, if any, in the denial of the motion to strike was cured by waiver when the appellants put in evidence of the experience of Bidar as a truck driver and of the facts concerning the delay in obtaining a license. We derive no such conclusion from the introduction of that evidence. The fact that they renewed their motion before tendering that evidence dispels any possible inference of an intent upon the part of appellants to withdraw their objection. Upon the denial of the renewed motion, the jury still had before it for consideration the fact that Bidar had no license at the time of the accident. The appellants were then under the practical necessity of offering such evidence as they might have concerning Bidar’s experience as a driver and the delay in obtaining a license. In such a situation, their offering that evidence furnished no basis for predicating a withdrawal of their objection by waiver or estoppel, or upon any other theory.

We conclude that the denial of the motion to strike was in error, and that the error was prejudicial. There were a number of conflicts in the testimony, some .of which we have noted. The evidence was so nearly in balance it would have furnished substantial support for a verdict for either party. We cannot say but that in the minds of the jury Bidar’s lack of a license tipped the balance in respondent’s favor.

Nor was this error cured by the instructions given the jury. Appellants requested and the court refused the following instruction: “You are instructed that the evidence introduced in this case concerning the fact that Mr. Bidar did not have a license was not admitted as a proximate cause of the injury.” The court gave the following instruction: “I instruct you that the negligence of the operator of a vehicle is to be determined by the facts existing at the time of the accident. The fact that Mr. Bidar did not have a license was immaterial unless there was some causal relationship between the injuries and the failure to have a license or the violation of the statute in failing to have one.”

The instruction requested was sound as far as it went, removing the evidence of lack of a license from consideration as a proximate cause of the injury. The instruction given was correct as an abstract statement of law but not appropriate

The judgment is reversed. The appeal from the order denying a new trial, a nonappealable order, is dismissed.

Peters, P. J., and Bray, J., concurred.

A petition for a rehearing was denied July 5,1951.