Hendriksen v. Young Men's Christian Ass'n

Plaintiff, Robert Larry Hendriksen (hereinafter referred to as plaintiff) aged 12 years, 8 months, brought this action for damages, through his guardian ad litem Jane Hendriksen, against the Young Men’s Christian Association of San Diego, a corporation (hereinafter referred to as Y. M. C. A.) et al., alleging that on August 24, 1953, the said Y. M. C. A. was the owner, had control of, and was engaged in the operation of a recreation and pleasure camp for boys (Camp Marston), and extended to the public an invitation for them to attend it at a charge; that plaintiff accepted, paid the required fee, and while a guest at said camp, near the room assigned to him, he was struck in the left eye with a dart negligently thrown by another paying guest, defendant Jack Ridout (aged 10 years), resulting in the loss of sight of his left eye. It is further alleged that said guest had been negligently furnished with said dart through the negligence of unnamed defendants, sued as Does in said complaint, while acting in the course of their employment as agents of the Y. M. C.

As appears from the record, plaintiff originally brought this action against the appellant Y. M. C. A., Does 1 to 5, and James Roe, as agents and employees of Y. M. C. A. Jack Ridout, sued as James Roe, appeared, admitted he threw the dart, denied negligence, and alleged contributory negligence of the plaintiff and assumption of risk. Defendants Charles L. Crumly and Howard A. Christman, sued as Does 4 and 5, answered, admitted they were the agents and servants of the Y M. C. A. and denied generally that it was by any act or ouaission of any agent of said Y. M. C. A. that plaintiff was injured, and alleged that plaintiff’s injury was occasioned by a violation of orders of said agents; that plaintiff engaged in playing with darts, and any injury sustained by him was contributed to and caused by such violations.

By an amended complaint it was alleged that Ernest Roberson, Charles Crumly, Howard Christman, Jack Ridout and Doe 5, were agents and servants of defendant Y. M. C. A. and it was by reason of the fact that Jack Ridout had been negligently furnised with and had obtained said dart, and the negligent conduct of said defendants, that plaintiff was injured.

On the evidence thus produced the jury found against appellant Y. M. C. A., Crumly, and Christman in the sum of $30,000, and in favor of defendant Jack Ridout. Judgment was entered accordingly. The trial court granted a new trial as to appellant Y. M. C. A., Crumly and Christman on July 26, 1956, which order was affirmed on appeal on July 22, 1958, in the case above cited. A second amended complaint was then filed, alleging in one cause of action that defendant Crumly, General Secretary of the corporation, and Christ-man, Camp Director, were officers and employees of appellant Y. M. C. A.; that plaintiff was assigned to cabin 13 under the supervision and charge of defendant Roberson, a minor, leader and counsellor placed in charge by defendant Christ-

On the evidence and pleadings as thus amended, the jury returned a verdict against appellant Y. M. C. A. for $13,500 and found in favor of defendant Christman. Prior to trial the action against the other defendants ivas dismissed on motion, by reason of prior judgment in favor of Roberson and Ridout and the death of defendant Crumly. The motion as to Crumly had some form of limitation as to its effect, i.e., that the “ effect of the dismissal is only as to Crumly, and will have no effect in and of itself upon any other defendant in this action.” Thus, the boy who threw the dart, Ridout, the cabin counsellor Roberson, who was immediately responsible for cabin 13, and the camp director Christman, with overall supervision of Camp Marston, have been found to be free of negligence, and only the corporate defendant Y. M. C. A. has been held liable. Prom that judgment, and from an order denying appellant Y. M. C. A.’s motion for judgment notwithstanding the verdict defendant takes this appeal.

It is now argued that the Y. M. C. A. is responsible for plaintiff’s injury only secondarily and derivatively under the doctrine of respondeat superior, and since all persons who could have been primarily responsible have been exonerated, there is no fault which can be imputed to the Y. M. C. A.;

“Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.”

Section 2339 provides: “A principal is responsible for no other wrongs committed by his agent than those mentioned in the last section, unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service.”

It is difficult to determine from the second cause of action set forth in plaintiff’s second amended complaint, upon which this action went to trial, whether or not appellant Y. M. C. A. ’s liability was founded upon the doctrine of respondeat superior for a recovery or upon a claim of primary negligence of defendant corporation. It might well appear therefrom that plaintiff was relying upon the alleged negligent acts of the agents or employees of appellant corporation Y. M. C. A. because it is stated that the named agents, employees and others of the Y. M. C. A. did the acts and made the omissions referred to, and in so doing they were acting in the course of their employment. If so, plaintiff would be brought under the recognized rule that the liability of a principal for

The important question is whether any claimed negligence of appellant Y. M. C. A. was the proximate cause of plaintiff’s injury and whether it was primarily liable under the evidence produced.

Plaintiff’s testimony shows the chartered bus, supervised by two counsellors, aged about 19 or 20 years, and selected by appellant’s agent Christman, stopped en route at Ramona so that the boys could go to the rest room; that some of the boys made purchases at the local store and plaintiff bought the dart here involved without the knowledge of the counsellor. He testified he and one other boy bought one to throw at frogs at the camp; that when he got on the bus one counsellor noticed his dart and warned the boys not to start shooting bean shooters which were also purchased on that occasion because he did not want to pick up the beans, and said: “Don’t throw darts ... at trees”; that he then put the dart in his pocket but it stuck his leg so he held it in his hand until he got to camp; that he was assigned to cabin 13 and placed under the supervision of Roberson, counsellor for that cabin. (Apparently the two counsellors on the bus had' no,further connection with plaintiff.) He then testified that when Roberson discovered he had a dart he told plaintiff to “keep it with your things” and when he later saw plaintiff

Roberson testified generally he was cabin leader of cabin 13; that when he first saw the dart that day it was being thrown around by plaintiff; that he took it away from him and put it in the rafter above his bunk and told all the boys it was very dangerous and all, including plaintiff, promised on their word they would leave it alone; that he thought this was the best thing to do because it placed them on their honor and he took the boys at their word; that he was not present in the cabin for approximately two hours during siesta period and relaxing period because he was at the archery field preparing for activities which the boys were expected to attend if they so desired; that they had been previously released to go to other activities and he was not supposed to

Christman testified he was camp commander in charge; that he first learned of the injury shortly after it happened; that he orally instructed Roberson on the rules of the camp (health and safety), and posted instructions as to activities and the times they would take place; that he (Christman) had charge of transportation of the boys; that he thoroughly instructed the two counsellors about boys putting their arms out of the windows and other safety rules; that they never had a case where a boy brought a dart aboard the bus; that these counsellors were competent, careful and used their best judgment; that the camp had 15 cabin leaders and one was assigned to each cabin; that no dart throwing had ever been encountered before; that firearms were permitted on the bus as part of the guests’ equipment on prearranged application; that when such equipment reached the camp it was placed in charge of another, with the boy’s name on it, and target practice under supervision, was allowed; that the guns were returned to the boys when they left, and kept in their personal belongings on the bus. He then testified he had 25 years’ experience in operating such camps and this camp was operated in the same manner as other camps they operated; that in making the rules it was the custom not to have too many “don’t’s” or “negatives” but an honor system was to be preferred.

Jack Ridout, who threw the dart, testified that while on the bus he heard the counsellor tell the boys to put darts away and not to use them and all the boys agreed to do so. He corroborated the testimony of many other witnesses that plaintiff took the dart from the rafter, instigated the game described as “Daredevil” and plaintiff was the first to play it; that plaintiff opened the door three or four times when he was trying to miss it, and plaintiff was struck in the eye with the dart. He also testified, as others did, that plaintiff never left the cabin and was participating in the game when he was injured.

The deposition of defendant Crumly, general secretary, read into evidence, was to the effect he had been such secretary for 13 years; that it was his duty to select camp director and he did select Christman, a competent director; that rules of health and safety were printed each year; that he had no part in the selection of counsellors or leaders but left that

By the jury’s verdict in favor of defendant Christman and the entry of judgment of nonsuit on the first cause of action set forth in the second amended complaint, which judgments have become final, it was determined that there was no negligence on the part of Christman, either in lack of selection of employees or agents, or in supervision of the camp and of plaintiff, at the time of the injury. Accordingly, no judgment against appellant corporation Y. M. C. A. could be imputed to appellant Y. M. C. A. in this respect, by such evidence. (Fimple v. Southern Pac. Co., 38 Cal.App. 727 [ 177 P. 871 ]; Davison v. Diamond Match Co., 10 Cal.App.2d 218 [ 51 P.2d 452 ] ; Spruce v. Wellman, 98 Cal.App.2d 158 [ 219 P.2d 472 ].)

There was no substantial testimony that Crumly, general secretary, and defendant in the action, prior to its dismissal as to him by reason of his death, was an incompetent employee or that any act of his constituted negligence which could, under any reasonable hypothesis, be imputed to appellant Y. M. C. A. In fact the action of the trial court upon entering the judgment of nonsuit on the first cause of action of the second amended complaint sufficiently disposed of these questions.

The only other claimed agents of appellant Y. M. C. A. who had any participation in said actions, who were not named party defendants and exonerated of any negligence on their part, which could have been imputed to appellant Y. M. C. A. were the two 19 or 20-year-old counsellors who had charge of the boy guests on the bus during the trip to camp. The evidence indicates they were competent employees and the judgment of nonsuit was conclusive on this question. The only other act of claimed negligence on their part was improper supervision. Plaintiff argues that these counsellors had knowledge that he purchased and had possession of the dangerous dart, and it was their duty to prevent it from being purchased and to take it away from plaintiff at that time and place it in a safe place, and that appellant Y. M. C. A. negligently failed to properly instruct said counsellors and agents in the performance of their duties in exercising supervision over plaintiff; that the negligence of appellant Y. M. C. A. was continuous and such failure of duty was the proximate cause of plaintiff’s injuries, citing Warner v. Santa

It does appear that these two counsellors took reasonable precautions to inform plaintiff of the danger of a dart after its discovery in plaintiff’s possession. Paying guests were allowed to take firearms with them on the bus with their personal belongings. They were not using them on the bus, and although dangerous when improperly used, there was no necessity for these counsellors to believe that they would be improperly used when the boys reached the camp. So it may be said of this dart or a pocket knife or bean shooter which the boys may have carried with them en route. At least these two counsellors on the bus could not be chargeable with knowledge that after arriving at the camp and being turned over to other counsellors, who did in fact take the dart away from plaintiff, that some third person, one day later, would obtain it in the manner indicated, and throw it in plaintiff’s eye. We are convinced that this evidence of claimed negligence on the bus could not reasonably be said to be the actual and proximate cause of plaintiff’s injury but rather that such proximate causation began with the removal of the dart from the rafter and progressed directly and without interruption to the resulting injury. The negligence of appellant Y. M. C. A.’s agents at the camp has been adversely determined against plaintiff’s claim. The relationship of any negligence on the part of any counsellor on the bus to the plaintiff’s injury is well covered by a quotation from the ease of Royal Insurance Co. v. Mazzei, 50 Cal.App.2d 549 [ 123 P.2d 586 ], where the court adopted as the governing rule a statement from 45 Corpus Juris, page 931, section 491 (referred to in Hauser v. Pacific Gas & Elec. Co., 133 Cal.App. 222 [ 23 P.2d 1088 ]):

“ ‘A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective

condition sets into operation the circumstances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause.’ ”

Because of the remoteness of conduct of the counsellors on the bus to the fact of injury, and on the basis of the nature of the intervening cause, we conclude that the circumstances are sufficiently strong to support the conclusion that, as a matter of law, there is no proximate cause between the conduct of the counsellors and the injury received by plaintiff, particularly where the subsequent agents have been exonerated from negligence in respect to the subsequent events. (Stultz v. Benson Lumber Co., 6 Cal.2d 688 [ 59 P.2d 100 ]; Catlin v. Union Oil Co., 31 Cal.App. 597 [ 161 P. 29 ]; Loftus v. Dehail, 133 Cal. 214 [ 65 P. 379 ] ; Bradley v. Thompson, 65 Cal.App. 226 [ 223 P. 572 ] ; Frace v. Long Beach City H. S. Dist., 58 Cal.App.2d 566 [ 137 P.2d 60 ] ; Peterson v. Martin, 138 Minn. 195 [ 164 N.W. 813 ] ; Pollard v. Oklahoma City Ry. Co., 36 Okla. 96 [ 128 P. 300 , 303, Ann.Cas. 1915A 140] ; Roberts v. Southern Pacific Co., 54 Cal.App. 315 [ 201 P. 958 ].)

Next, appellant claims error in the refusal of the court to give its proffered instructions on the doctrine of assumption of risk. Although this claimed defense was pleaded by one of the agents, appellant Y. M. C. A.’s answer did not specifically plead such special defense but did allege that defendants were not negligent; that plaintiff was contributorily negligent, and that plaintiff’s injury was due to his own fault. In Covely v. C.A.B. Construction Co., 110 Cal.App.2d 30 , 34 [ 242 P.2d 87 ], it is said:

“Where the defense of plaintiff’s contributory negligence is pleaded, . . . evidence of assumption of risk by the injured party and instructions relative thereto are proper.” (Citing Ury v. Fredkin’s Markets, Inc., 26 Cal.App.2d 501 , 502 [ 79 P.2d 749 ].)

While there is a distinction between the defense of assumption of risk and contributory negligence (Prosser on Torts, pp. 377-392; Hayes v. Richfield Oil Corp., 38 Cal.2d 375 , 384-385 [ 240 P.2d 580 ]) it does appear that the doctrine of assumption of risk is based on the theory that there has been a voluntary acceptance of a risk, and such acceptance, whether express or implied, requires knowledge and appreciation of the risk.

Prom the record, the evidence and proffered instructions, it appears that appellant Y. M. C. A. was relying on

In respect to the appeal from the order denying the motion for judgment for appellant Y. M. C. A. notwithstanding the verdict, we are convinced that it was not within the power of the trial court to grant it because the denial of the motion of appellant Y. M. C. A. for a directed verdict in its favor, at the time it was made, was proper in view of the evidence pertaining to the negligence of its agent, made a party to said action, which might reasonably be imputed to Y. M. C. A., and whose negligence, at the time of ruling on the motion for a directed verdict, had not been determined by the jury. It is only where such previous denial of a directed verdict was erroneous, is a motion for judgment notwithstanding the verdict authorized. (City & County of San Francisco v. Superior Court, 94 Cal.App. 318 , 321 [ 271 P. 121 ]; Code Civ. Proc., § 629; Hallinan v. Prindle, 220 Cal. 46 [ 29 P.2d 202 ].)

We therefore conclude the order denying appellant judgment notwithstanding the verdict should be affirmed; that the judgment should be reversed, and since a new trial would accomplish nothing because the issue of claimed negligence of appellant Y. M. C. A. has no substantial support and has been previously determined, an order for entry of judgment for appellant Y. M. C. A. would be proper. (Doremus v. Root, 23 Wash. 710 [ 63 P. 572 , 54 L.R.A. 649 ]; Kurata v. Los Angeles News Publishing Co., 4 Cal.App.2d 224 , 228 [ 40 P.2d 520 ].)

Order denying judgment for appellant notwithstanding the verdict affirmed. Judgment reversed with directions to the trial court to enter judgment for appellant.

Mussell, J., concurred.

A petition for a rehearing was denied October 9, 1959, and respondent’s petition for a hearing by the Supreme Court was denied November 18, 1959. Gibson, C. J., Traynor, J., and Peters, J., were of the opinion that the petition should be granted.