De Stackelberg v. Lamb Transportation Co.

On July 20, 1955, at about 4:15 a. m., on Alameda Street in Los Angeles County, an automobile driven by Roy Nelson collided with a truck and trailer combination owned by Lamb Transportation Company. The four occupants of the automobile were seriously injured, and each sued Lamb Company on a theory of respondeat superior for the alleged negligent operation of the truck and trailer by Edwin Earl Robinson, Lamb’s truck driver. The cases having been consolidated for trial, there was a judgment for defendants

On the evening preceding the accident, appellants Mrs. de Stackelberg and Mrs. Woodworth, after a cocktail party at the latter’s home, attended a dinner party in Los Angeles Chinatown. Later, they drove to a bar in Gardena where they were served alcoholic beverages. Still later, at about 1 a. m., appellants went to the Village Spa, a restaurant and bar on Lakewood Boulevard, where they met Roy Nelson and Harold Fair, police officers of the city of Compton. Mrs. Woodworth and Mrs. de Stackelberg both admitted having another drink at this last establishment, and soon thereafter, at about 2 a. m., appellants left with the officers to inspect a small boat at Los Angeles Harbor in which Fair was interested. Nelson drove the party to the harbor in a 1953 Chevrolet four-door sedan, a city-owned vehicle, assigned to him. The group boarded the boat for a cruise around the harbor. During the boat ride Fair produced a can of warm beer and gave Mrs. Woodworth a taste of it. After the boat ride, and at about 4 a. m., the party returned to the car and started home. Nelson was driving with appellant de Stackelberg beside him in the front seat, and appellant Woodworth beside Fair in the rear seat. At about 4:15 a. m. the vehicle was proceeding northerly on Alameda Street.

Alameda Street, in the area of the collision, is a four-lane highway, running north and south, unlighted, straight, level and paved. The area is in a 55-mile an hour zone. The night of the accident was dark and clear. The Lamb Company has a transportation yard on the east side of Alameda Street from which a private driveway leads to the paved shoulder. At the entrance to the highway there were boulevard stops erected for vehicles coming from the yard. On the night of the accident, Robinson was directed to take his truck and trailer to a loading point on Alameda Street about a mile south of the Lamb yard. The overall length of truck and trailer was 60 feet, and it was equipped with the variety of lights and reflectors characteristic of such large trucks. Robinson drove

The occupants of the Nelson car could give only fragmentary testimony as to the exact circumstances of the accident. Nelson testified that he was driving north on Alameda at about 50 to 52 miles per hour, and was asked: “ Q. . . . As you approached the Lamb Yard just tell us what happened. A. An object shot out in front of me and I saw the truck and at the time I saw it there he had both the inside lane and the outside lane and the inside lane I was traveling at fully blocked. Q. Now, did you see the truck in motion 1 A. Yes, I did. Q. Did you see the truck at any time stop? A. No, I did not. Q. Did you see the truck at any time before it was on to the highway?” He testified that he had not seen the truck before this time.

It was one theory of the defense that appellants’ recovery

All of the passengers in the Nelson car admitted to having consumed alcoholic beverages on the night of the accident, but Nelson insisted that he had consumed only one drink, a bourbon and soda, at the Village Spa about two hours before the accident. Although there was testimony that Fair produced some beer during the boat ride, there was no direct evidence that Nelson had more than the one drink he admitted consuming. However, there is such substantial evidence of Nelson’s intoxication that the jury had most reasonable grounds for disbelieving Nelson’s testimony. Following the collision, at about 6 a.m., Nelson was examined and treated by Dr. Chauncey Dobson, a resident physician at the Harbor General Hospital in Torrance, for his substantial injuries. Dr. Dobson testified that in his opinion Nelson was ‘ ‘ quite drunk at 6 :30. ’ ’ Although the doctor did not perform a blood alcohol test, he testified that there was a strong odor of alcohol on Nelson’s breath which could not be produced by just one drink; that Nelson’s speech was slurred; that his movements were uncoordinated, and that “he [Nelson] was under the influence of alcohol” at 6:30 on the morning of the accident. On cross-examination, Dr. Dobson testified as follows: “Q. In order for you to find him drunk, intoxicated at 6:30 as to what it would have been at 4:00 o’clock, do you have any opinion? A. No, sir. Q. Could you even estimate, doctor ? A. Yes, sir. Q. What would be your estimate ? A. It would be a large amount. That would be my estimation. Q. You saw him in such a condition at 6:30 that you formed the conclusion that he was quite drunk at 4:00 o ’clock, even if he had nothing to drink in those two or two and one-half hours? A. He was quite drunk at 6:30. Q. I beg your pardon ? A. He was quite drunk at 6 :30. Q. If he was quite drunk at 6 :30, he would have been quite drunk at 4:00 o’clock, wouldn’t he? A. Yes.”

In addition to the testimony of Dr. Dobson, two witnesses who observed Nelson in the ear immediately after the accident testified that his breath had a noticeable odor of alcohol.

Appellants contend that there was no evidence to justify instructions given by the court upon two aspects of the defense of contributory negligence: (a) relative to the circumstances under which a guest is required to protest against the obvious negligence of the driver; and (b) relative

A review of the evidence in conformity with the familiar rule (Crawford v. Southern Pac. Co., 3 Cal.2d 427 , 429 [ 45 P.2d 183 ]; Ashburn v. Miller, 161 Cal.App.2d 71 , 74 [ 326 P.2d 229 ]) reveals the complete lack of merit in these arguments. There was both direct and circumstantial evidence that Nelson’s car was traveling at a speed which the jury reasonably could have regarded as obviously excessive and grossly negligent under the circumstances. The testimony of Dr. Dobson alone was clearly sufficient to support a finding that Nelson was intoxicated to a degree that seriously impaired his ability to operate an automobile. It is granted that for the instruction to be applicable it was necessary for the jury to find that appellants knew, or should have known, of Nelson’s intoxication. (Enos v. Montoya, 158 Cal.App.2d 394 , 401 [ 322 P.2d 472 ].) However, such knowledge may be inferred from circumstances and, in the light of the activities which preceded the accident, the jury had ample basis for inferring that appellants, who had been in the company of Nelson for over two hours, must have been aware of his inebriation. (Cf. Kroplin v. Huston, 79 Cal.App.2d 332 , 340, 342 [ 179 P.2d 575 ] ; Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480 , 489-490 [ 55 P.2d 870 ].) There was other evidence from which the jury could have inferred that Nelson’s ability to drive had been substantially impaired. The witness Aistrope, traveling some 75 yards behind Nelson’s car, observed the brightly-lighted truck entering the highway, and had no difficulty in coming to a stop at the scene of the accident. From Aistrope’s testimony it was reasonable to conclude that Nelson could easily have avoided the accident simply by turning into the right-hand lane which was unobstructed.

Thus, we readily conclude that the evidence clearly justified the giving of the challenged instructions. Appellants themselves submitted requested instructions on both aspects of the theory of defense presently under discussion. The trial court gave appellants’ requested instruction with reference to

Appellants next contend that the trial court erred to their prejudice in denying an oral motion made during the trial to strike Robinson’s answer to their complaints. Al7 though the complaints filed by appellants named and identified Robinson as the negligent driver of Lamb’s truck, they did not join him as a party defendant. However, it appears that Robinson was joined as a defendant in the complaints of plaintiffs Nelson and Pair. The only basis for appellants’ claim of prejudice in this ruling was developed at a later stage of the trial, when plaintiffs called Robinson’s estranged wife, who, according to an offer of proof, was prepared to give testimony favorable to plaintiffs. The offer of testimony was excluded as incompetent under Code of Civil Procedure, section 1881, preventing a wife from testifying against her husband without his consent. Appellants ’ theory is that the testimony of Robinson’s wife would have been admissible if Robison were not a defendant in the action (cf. Sylvester v. Kirkpatrick, 79 Cal.App.2d 443 , 451-452 [ 180 P.2d 36 ]), and that a litigant has the right to select the persons against whom he seeks to recover (cf. Strauss v. Owens, 148 Cal.App.2d 570 , 574 [ 307 P.2d 81 ]). It is asserted that Robinson had no right to intrude himself as a defendant by filing answers to complaints in which he was not joined as a party.

These arguments are unavailing in the instant case for two reasons. In the first place, Robinson was clearly identified and designated as a party defendant in the consolidated actions by the terms of the pretrial conference order, which is .a part of the record herein. The pretrial conference order supersedes the pleadings to the extent of any inconsistencies and controls the subsequent course of the case. (Rules for the Superior Courts, rule 8.8; Baird v. Hodson, 161 Cal.App.2d 687 , 689 [ 327 P.2d 215 ].) In the second place, the complaints of all four plaintiffs named Robinson and stated primary causes of action against him • two of them joined him as a defendant. Certainly he was a proper party, and it would seem unquestionable that Lamb could have compelled his joinder as a “conditionally necessary party” under the provisions of section 389 of the Code of Civil Procedure.