Majority
This is an appeal by five defendants from a part of the judgment entered upon a jury verdict awarding
Factual Background
We shall hereinafter state the pertinent facts as they relate to the particular questions and issues presented on this appeal. Preliminarily, however, we set out the following factual background.
Fibreboard is a manufacturer of roofing, shingles, paint, insulations, floor coverings and other products at a plant located in Emeryville in California. In July 1959[2] over 800 persons worked in this plant, of whom more than 70 were involved in maintenance work. Fifty of the maintenance men were members of and represented by the Union. The production workers in the plant were represented by six different unions other than the Union, and the warehousemen employees were represented by the International Longshoremen’s & Warehousemen’s Union, hereinafter referred to as the “ILWU.” On July 31, Fibreboard discharged all of its maintenance men, including those represented by the Union, because it had decided to contract the plant’s maintenance work to an independent contractor, the Fluor Maintenance Company. In protest against the discharge the Local authorized and established a picket line at Fibreboard’s Emeryville plant on July 31. The said picketing was thereafter authorized and sanctioned by the International.
On August 3, Fibreboard filed its complaint for injunction in the present action and a temporary restraining order was issued by the superior court limiting the number of pickets and enjoining defendants from obstructing or interfering with ingress and egress of employees and others, and from intimidating, coercing, threatening or committing property
2 Unless otherwise specified herein all dates refer to the year 1959.
On August 24, a preliminary injunction was issued on the same terms as the temporary restraining order, and on September 4, the preliminary injunction was modified to enjoin all picketing. A supplemental complaint was thereafter filed by Fibreboard alleging that the acts complained of in its complaint for injunction continued from August 4th to September 5th, and praying for compensatory and punitive damages for its loss of business, profits and continuing expenses allegedly caused by defendants’ acts. In addition to answers denying the essential allegations of the complaint and supplemental complaint, defendants filed an amended answer further answering the complaint, and alleging three affirmative defenses. The first defense alleged the existence of a collective bargaining agreement between Fibreboard and the Union and a breach thereof by Fibreboard in unlawfully discharging the maintenance employee members of the Union; the second, that Fibreboard “does not come into equity with clean hands’’; and the third, that the acts complained of in the complaint and supplemental complaint were caused and induced by Fibreboard in concert with others by assaulting and otherwise molesting the duly stationed pickets and by the use of “ ‘strikebreakers.’ ” Thereafter, and prior to the commencement of the trial, and on motion of Fibreboard, the aforesaid first affirmative defense was ordered stricken by the court below.
The cause proceeded to trial before a jury. During the course of the trial, defendants moved to amend their answer to add four additional affirmative defenses, designated, respectively, as the fourth, fifth, sixth, and seventh defenses.
The jury returned its verdict in favor of Pibreboard against all defendants for compensatory damages in the sum of $285,000, and for punitive damages against the International in the sum of $20,000 and against the Local in the sum of $4,000. The action was continued for the trial court’s consideration of the question as to whether a permanent injunction ought to be granted. The court thereafter entered judgment upon the jury’s verdict, and ordered in said judgment that Pibreboard was not entitled to a permanent injunction against defendants, or any of them, and that the modified preliminary injunction theretofore issued be vacated and dissolved.[4]
The instant appeal by defendants is from said judgment, excepting that portion denying a permanent injunction and vacating and dissolving the preliminary injunction. The questions raised on appeal by defendants are set out in the headings preceding the several subjects hereinafter discussed in this opinion.
Were the Damages Awarded Pibreboard Proximately Caused by the Tortious Conduct of Defendants 1
Yes. Defendants contend that although there was evidence of “incidents” on or near the picket line from which the jury could have arrived at the conclusion that some of the behavior on the picket line was tortious, there
3 Defendants assert on this appeal that the refusal to grant the motion to add the sixth affirmative defense was a prejudicial abuse of discretion. We shall hereinafter separately discuss the propriety of the trial court’s action in regard to this proposed amendment.
4 Findings of fact and conclusions of law were waived as to the issues submitted to the trial court.
Turning to the record in this case, we find substantial evidence of tortious behavior on the picket line. Within an hour after the Local established the picket line cars attempting to enter the plant were halted. Robert Baldwin, Jr., personnel director of the plant, took a picture of a group of men congregating about the entrance of the plant. He was approached by Area and other pickets, forcibly relieved of his camera and was knocked down in the process. On August 1st, R. C. Thumann, Fibreboard’s director of industrial relations, and two other managers were refused entry into the plant by Area, necessitating police intervention to effect entry. On August 2, production workers, who were members of the Pulp, Sulphide and Paper Mill Workers Union, coming to work the “graveyard shift” did not cross the picket line and were sent home by their international representative, Bradford, after he was told by Ferber that if Bradford’s members attempted to go to work “it wouldn’t be a peaceful picket line.”
The first regular work day after picketing began was on
Bradford also testified that on August 10th, he was told by Stumpf that if his men returned to work their front porches might be blown off or their ears overturned; that when he started to walk across the street to confer with Thumann he was accosted by Lincoln Beck of the Local and pushed 15 or 20 feet back up the street; and that Beck later drove his automobile down the street toward him and that he had to jump behind a ear to avoid being struck.
During the days of August 19, 20 and 21, the following occurred: General Foreman Jochum’s ear was stopped; he was struck and the windshield of his car was smashed and broken. Design Foreman Paul Stearns’ car was similarly handled; he was also struck while sitting in the ear and the rear window of his car was broken. Stumpf threw an object
William Burke, business agent for the ILWU, was called as a witness for defendants. He testified, on direct examination, that it was the policy of the ILWU not to cross picket lines and that a few days before the picketing took place, he advised Thumann that the warehousemen would not cross the picket line because of this policy. He also testified that members of his union did not cross the picket line from July 31 through September 4, except for the plant protection personnel who are permitted to cross picket lines. Burke testified, further, that he was in the general picketed area almost daily between 7 and 8 a.m. because some of his men would come down to find out if the picket lines were still up or if the strike was still in progress. He also stated that on other occasions when he was in the general area he “would stop by to see how things were going.” On cross-examination, Burke identified a contract between his union and Distributors’ Association, a group of employers, of whom Pibreboard was one. It appears that prior to its being identified, counsel for defendants interposed an objection to its admission on the ground that it was not binding on defendants.[5] The trial
5 "Mr. Darwin: I don’t know for what purpose it is being offered. It isn’t binding as to these defendants. I would object to it on that ground, but that is a basic objection. Mr. Hanger: We are offering *692 it solely for the purpose of showing the contract that they had with them. The Court: Well, have him identify it.”
Burke testified further, on cross-examination, that during the month of August, Thumann asked the warehousemen to return to work and to cross the picket line, to which request the ILWU replied by a letter signed by him and two other business agents. The letter was shown to Burke and identified by him.[7] The witness testified that the letter quoted, among others, the two paragraphs of the contract previously read into the record by plaintiff’s counsel, and in this respect stated: “I stated we would have the right to respect a picket line without breach of contract, and quoted the paragraph above it... which refers generally to leaving the job for self-protection. ” Burke was then queried on cross-examination as to what the words “ ‘for their own protection’ ” meant to him. He replied: “Well, it could be protection of body, pro
6 “Mr. Hanger: All right, then, we will offer it at this time. The Court: Yes. It will be admitted into evidence, then, as Plaintiff’s next in order. ’ ’
7 The letter was not read or offered in evidence.
The record discloses, relative to the aforementioned telephone conversation between Burke and Thumann, that Thumann testified that Burke did not tell him the warehousemen would not cross the picket line, but that Burke stated “he didn’t know what his boys would do.” On rebuttal, Thumann testified that if the warehousemen had refused to cross the picket line solely on the union principle that they never crossed picket lines, he would have required them to return to work, and if they failed to so do he would have employed others. He stated, further, that there were other workers available in the Bay Area to do this type of work.
The function and duties of the warenousemen, as described by witnesses presented by both sides, consisted of the unloading of raw materials, used in the various manufacturing processes, when delivered by trucks and trains; to store these materials until needed for production; to move such materials and finished products within the plant; and to ship out and load on trucks and trains the finished products for customer needs.
The only witness produced by Fibreboard to establish the extent of its damages was its assistant comptroller, Ben H. Rich, a certified public accountant. Rich testified as to the type of products manufactured in the Emeryville plant, and that certain of the products produced by Fibreboard were only manufactured at the Emeryville plant. Rich also testified that there was no production at the Emeryville plant during the month of August and the first week of September, except for some production in the floor covering plant. It was his testimony that he computed the profits lost by reason of the shutdown of the Emeryville plant from July 31 until September 7 upon the basis of estimate of sales, and that this
8 The pertinent question and answer is as follows; “Q. Well, Mr. Burke, what do the words ‘for their own protection’ mean to you? A. What does it mean to me? Q. Yes, what does that language mean to you? A. Well, it could be protection of body, protection of conscience, protection of feelings, protection of tlieir social standing in the community. Q. You say, ‘It could be protection of body’; is that correct? A, Among other things; yes. ’ ’
On cross-examination, Rich testified: That when he referred
9 Exeept for roofing, shingles and paint only sales from products produced exclusively at Emeryville were used in arriving at total estimated sales. With respect to roofing and shingles actual sales of the Portland, Oregon, and Wilmington, California, plants were included in order to reflect any increased sales in those plants hy reason of the shift in business from Emeryville to these plants. With respect to paint a closed plant at Southgate, California, was reactivated and made some sales during the period of the shutdown, and these sales were included in the paint sales.
10 Eaeh of the methods used was predicated upon “lost sales” during the shutdown period, but upon comparative shorter bases of prior experience. The method of estimating costs was the same under each method, i,e., the most current cost experience in July 1959.
Defendants do not attack, on this appeal, the method utilized by Fibreboard in computing loss of profits; nor do they claim that the damages thus established were not in fact sustained. They do contend, however, that there is no causal connection between these damages and whatever tortious conduct may be attributed to their activities on the picket line. The thrust of their argument is that Fibreboard’s damages are predicated solely on lost sales, and that even if goods had been produced during the time the Emery-ville plant was picketed, sales would not have been realized from such production because the warehousemen were not working out of respect for the picket line which they were legally entitled to recognize under the terms of their contract with Fibreboard. In other words, say defendants, the sales lost were occasioned by the failure of the warehousemen to move the finished goods and not because of lost production. It should be noted here that while goods were not produced during the shutdown period and therefore finished goods were not added to inventory, there is nothing in the record to show that the inventory on hand on July 31[11] was not adequate to meet orders for the months of August and September, the two months during which Fibreboard claims loss of profits. Under the evidence adduced, the nonproduction occasioned by the shutdown at the Emeryville plant could only be related to the months of August and September. Fibreboard’s damages are predicated upon a loss computed on the basis of the net profit upon estimated sales from all plants, had there not been a shutdown, as compared to the actual net loss realized from sales made from such plants during the months of August and September. There was no evidence presented by Fibreboard as to the nature and extent of the nonproduction during the months of August and September, nor of the effect of such nonproduction upon future sales. It
11 The extent and nature of this inventory was not established.
In reviewing the sufficiency of the evidence, we deem it expedient to call to mind certain well-established principles defining the scope of our review. These are: “ [A] 11 conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible”; (2)‘‘when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury”; and (3) when two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the jury. (Crawford v. Southern Pacific Co., 3 Cal.2d 427 , 429 [ 45 P.2d 183 ]; Florez v. Groom Development Co., 53 Cal.2d 347 , 354 [ 1 Cal.Rptr. 840 , 348 P.2d 200 ] ; 3 Witkin, Cal. Procedure, § 84, pp. 2245-2246.) Consonant with these principles ‘‘we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom,” (Overton v. Vita-Food Corp., 94 Cal.App.2d 367 , 370 [ 210
We believe that the jury in the instant case had the right to reasonably infer that the warehousemen remained away from work because of the threats, intimidation and violence at the picket line. There is direct evidence that the warehousemen did not cross the picket line from July 31 to September 4. While there is no direct evidence of any threats, intimidation or violence directed to or perpetrated upon the warehousemen, there is ample direct evidence in the record of violence upon members of other unions and personnel employed by Fibreboard. The nature, frequence and extent of this tortious conduct was such that it was reasonable for the jury to infer that the warehousemen were aware of it. In the
Fibreboard contends that the jury was also entitled to consider the union contract between ILWU and Fibreboard, the aforesaid letter from ILWU to Thumanu, and Burke’s testimony with respect thereto as evidence that the warehousemen remained away from work for their own protection.
Addressing ourselves, first, to the contract, we find that it was received in evidence without objection. Although, when first offered, it was objected to on the ground that it was not binding on defendants, the trial court did not rule on the objection, but suggested instead, that a foundation be laid with respect to its identification. Counsel for defendants did not request a ruling nor did he press his objection when the offer was subsequently renewed. Under the circumstances the objection was abandoned and waived. (See Goodale v. Thorn, 199 Cal. 307 , 315 [ 249 P. 11 ]; Campbell v. Genshlea, 180 Cal. 213 , 220 [ 180 P. 336 ]; People v. Staver, 115 Cal.App.2d 711 , 724 [ 252 P.2d 700 ]; Witkin, Cal. Evidence, § 720, pp. 749-750.) Of paramount significance, moreover, is defendants’ failure, on this appeal, to assert in their briefs or in oral argument the assignment that the trial court erred in admitting the subject contract in evidence.[12] To the contrary, defendants in their briefs rely upon the contract and contend that the jury was entitled to infer that pursuant to its provisions defendants remained away from work because of union principle. It is apparent, therefore, that if the jury was entitled to draw the inference urged by defendants it was likewise entitled to draw the inference that by reason of the contractual provisions defendants remained away from their work because of “their own protection.” The jury, as the
12 Assignments of error not noticed or argued in appellant’s "brief are deemed waived. (Title G. &. T. Co. v. Fraternal Finance Co., 220 Cal. 362 , 363 [ 30 P.2d 515 ]; People v. Scott, 24 Cal.2d 774 , 783 [ 151 P.2d 517 ]; Blackman v. Kristovich, 216 Cal.App.2d 792 , 795 [ 31 Cal.Rptr. 413 ].)
Directing our attention to Burke’s testimony, relative to the contents of the letter from the ILWU to Thumann, we note that it too was received into evidence without objection. Defendants, in their answer to Fibreboard’s petition for a rehearing argue that this testimony does not contain prior inconsistent statements, and that, therefore, it is not of impeaching character. This position is the same as that urged by defendants in their briefs on appeal, the gist of their argument being that Burke’s uncontroverted testimony showed that union principle, and not fear of violence, led the warehousemen to respect the picket line. It appears, however, that a contrary position is taken by defendants in their supplementary brief after the argument on rehearing. The position there taken is that the effect of the subject evidence was merely to discredit Burke as a witness, and, presuming that the jury disbelieved him, it was justified in disbelieving his testimony that the warehousemen did not cross the picket line because of union principle. Accordingly, they assert it was not competent for any other purpose, and, in particular not competent as positive evidence that the warehousemen did not cross the picket line because of fear or threats of bodily harm or violence. The principle relied upon by defendants is that declared by the rule that the prior inconsistent statement of a witness, not a party to the action, is admissible only for purposes of impeachment and is not substantive or affirmative evidence sufficient to sustain a finding. (Albert v. McKay & Co., 174 Cal. 451 , 456 [ 163 P. 666 ]; People v. Orcalles, 32 Cal.2d 562 , 572 [ 197 P.2d 26 ]; Wilson v. Foley, 149 Cal.App.2d 726 , 731 [ 309 P.2d 97 ]; Witkin, Cal. Evidence, § 662, pp. 701-702.)
In order that a witness’ present testimony be subject to impeachment, the prior statement must be clearly inconsistent; “But inconsistency in effect rather than contradiction in express terms is the test.” (Witkin, Cal. Evidence, § 664, p. 702; see McCormick, Evidence, §34, pp. 63, 64; 3 Wigmore, Evidence, § 1040, p. 725; and see Froeming v. Stockton Electric R.R. Co., 171 Cal. 401 , 408 [ 153 P. 712 , Ann. Cas. 1918B 408].) Applying this test to the present case it appears that the general purport of the subject testimony was to contradict Burke’s testimony by show
13 Fibreboard argues that the testimony was admissible under the “verbal acts’’ exception to the hearsay rule. (See Witkin, Cal. Evidence, §216, p. 242; 6 Wigmore, Evidence, §1772 et seq., p. 190; McCormick, Evidence, § 274, pp. 585, 586.)
As concerns Burke’s explanation of the meaning of the words “for their own protection,” his testimony in that regard likewise went into the record without objection. No contention is made on this appeal that the admission of such evidence does violence to the parol evidence rule. Accordingly, the evidence may be considered by us in ascertaining whether inferences can be drawn from the agreement between the ILWU and Fibreboard as to the meaning of the provisions alluded to and the contracting parties’ intention. (Pao Ch’en Lee v. Gregoriou, 50 Cal.2d 502 , 505-506 [ 326 P.2d 135 ]; Santa Clara Properties Co. v. R.L.C., Inc., 217 Cal.App.2d 840 , 849-850 [ 32 Cal.Rptr. 333 ].) Burke testified that the words in question “could be protection of body, protection of conscience, protection of feelings, protection of their social standing in the community.” It was, therefore, susceptible of the inference that in view of the provisions of the contract the warehousemen did not cross the picket line because of fear of violence.
Adverting to Thumann’s rebuttal testimony that if the warehousemen had based their refusal to cross the picket line solely upon union principle, he would have required them to return to work, and if they failed to do so, he would have employed others, we are of the opinion that this testimony was speculative, conjectural and conclusionary. An objection on that ground was interposed by defendants but was overruled. The objection should have been sustained. However, no assignment of error is made by defendants on this appeal. To the contrary, it is urged by defendants that this testimony was directly contrary to Thumann’s prior testimony and that it has no probative value. Fibreboard concedes, in its petition for rehearing that this testimony does not establish threats or violence, but that its purpose was to show that if violence had ceased, and the production unions had returned while the ILWU had based its return to work solely on union principle, the plant would have continued to operate. Under the circumstances, the probative effect of this testimony, if any, was for the jury’s determination.
Turning to the question of damages in the present case, our inquiry is directed to whether the damages proved by Fibreboard through the testimony of Rich were prnximately caused by any tortious acts of defendants. The
The measure of damages in this state for the commission of a tort, as provided by statute, is that amount which will compensate the plaintiff for all detriment sustained by him as the proximate result of the defendant’s wrong, regardless of whether or not such detriment could have been anticipated by the defendant. (Civ. Code, § 3333.) It is well established in California, moreover, that such damages may include loss of anticipated profits where an established business has been injured. (Natural Soda Products Co. v. City of Los Angeles, 23 Cal.2d 193 , 199 [ 143 P.2d 12 ]; Hoag v. Jenan, 86 Cal.App.2d 556 , 563 [ 195 P.2d 451 ]; Guttinger v. Calaveras Cement Co., 105 Cal.App.2d 382 , 387 [ 233 P.2d 914 ]; Yates v. Kuhl, 130 Cal.App.2d 536 , 542 [ 279 P.2d 563 ].) The basis of this principle is that where the operation of an established business is prevented or interrupted by a tort, damages for loss of prospective profits, that otherwise might have been made from its operation, are
14 The record does not disclose that any pretrial conference order was made.
Turning to the ease at bench, there is ample evidence of operating experience sufficient to permit a reasonable estimate of probable income and expense to furnish a basis for estimating what the probable earnings would have been had there been no tort. As we have hereinabove pointed out, the defendants do not attack the method utilized by Pibreboard in computing loss of profits, nor do they claim that the loss of profits established by Pibreboard was not in fact sustained. Their contention is that Pibreboard has not
The cases cited by defendants with respect to the divisibility of damages are distinguishable. Each involves a factual situation where separate tortfeasors acted independently of each other and without concert or unity of design. In Connor v. Grosso, 41 Cal.2d 229 [ 259 P.2d 435 ], and Slater v. Pacific American Oil Co., 212 Cal. 648 [ 300 P. 31 ], it was held that each defendant was liable only for such proportion of the total damage as was caused by his own acts and that the trier of fact was at liberty to estimate the proportion as best it could. The other ease relied upon, Dauenhauer v. Sullivan, 215 Cal.App.2d 231 [ 30 Cal.Rptr. 71 ], supports the rule of indivisibility rather than that urged by defendants. There the appellate court, relying upon Finnegan v. Royal Realty Co., supra, recognized the principle that even though persons are not acting in concert, if the result produced by their acts is indivisible, each person is held liable for the whole. The rationale of the Dauenhauer case is that the distinction is one between injuries which are capable of being divided and those which are not, the law being loath to permit an innocent plaintiff to suffer as against a wrong
1 Plaintiff, Fibreboard Paper Products Corporation, a corporation, will be hereinafter referred to as “Fibreboard.” Defendants are: East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO, hereafter sometimes referred to as the ‘ ‘ Local ’ ’; United Steelworkers of America, AFL-CIO, hereinafter sometimos referred to as the “International”; Lloyd Ferber, Business Agent of the Local, hereinafter referred to as “Ferber”; William F. Stumpf, Staff ¡Representative of the International, hereinafter referred to as “Stumpf”; and Dave Arca, a member of the Local and its Recording Secretary in July and August 1959, hereinafter referred to as “Area.” The said Local and said International when referred to collectively shall be hereinafter designated as the “Union.”
Did the Trial Court Commit Prejudicial Error in Excluding From Evidence Documents Filed and Statements Made by Fibreboard in its Appeal to the California Unemployment Insurance Appeals Boardf
No. Defendants claim that the trial court committed prejudicial error in refusing to admit in evidence a certified copy of certain documents and statements in proceedings before the California Unemployment Insurance Appeals Board. The documents consist of forms filed by Fibreboard in an appeal to said Appeals Board and the transcript of portions of the oral argument of Fibreboard’s counsel before said Board. These appeals were from decisions of a Referee awarding unemployment benefits to employees of Fibreboard who were unemployed during the strike. The record does not disclose the nature of the occupation of these employees. However, the briefs of the respective parties concede that the subject unemployment compensation hearings were concerned only with the production workers. The proffered exhibit discloses that it was Fibreboard’s position at the unemployment compensation hearings that the production workers stayed away from work voluntarily because of their respect for the picket line upon union principles, and not because of any violence or threats.[15] Defendants sought to introduce Exhibit “Q” on the basis that it constitutes evidence of prior admissions inconsistent with plaintiff’s allegations and proof on the main issue of the instant case. It should be noted here that Exhibit “Q” consists of three written appeal forms and two transcripts of oral argument before the Appeals Board.[16]
The principle is well established in this state that a declaration of a litigant contrary to his position in the lawsuit is admissible under an exception to the hearsay rule as an admission. Such a declaration is not only admissible for purpose of impeachment, but it may also be used to prove the truth of the assertion, i.e., it constitutes affirmative
15 Section 1262 of the Unemployment Insurance Code provides: “An individual is not eligible for unemployment compensation benefits, and no such benefits shall be payable to him, if he left his work because of a trade dispute. ...”
16 It was stipulated in the trial court in the instant case that the statements and documents in Exhibit “Q” were made by Eibreboard’s attorneys as its agents within the scope of their authority.
Defendants lay considerable stress upon the assertion that the statements made by Fibreboard in its said appeal forms constitute admissions made in a prior pleading. Pleadings are generally associated with the trial of a cause and consist of the formal allegations of the parties of their respective claims and defenses for the judgment of the court. (See Code Civ. Proc., §§ 420, 422.) The office of pleadings is to outline the issues so that the parties may know what is involved in the litigation. (Horton v. Horton, 115 Cal.App.2d 360 , 367 [ 252 P.2d 397 ]; Brunson v. Babb, 145 Cal.App.2d 214 , 227 [ 302 P.2d 647 ].) Accordingly, it has been held that in civil actions the “pleadings” are those enumerated in section 422 of the Code of Civil Procedure and therefore do not include a notice of motion. (Sievers v. Pacific Gas & Elec. Co., 57 Cal.App.2d 455 , 456 [ 134 P.2d 850 ].) In the instant ease, we are not concerned with the pleadings referred to in the Code of Civil Procedure, but with the “form of appeal” provided for in title 22, section 6002, of the California Administrative Code, applicable to appeals to the Unemployment Insurance Appeals Board.[18]
No California case has been cited to us, nor has any been found by us, to the effect that a notice of appeal is a pleading. It should be noted, however, in the instant case, that an appeal to the appeals board is something more than a
17 It should be noted that an admission made in the same case may constitute a judicial admission, i.e., a conclusive concession of the truth of a matter which has the effect of removing it from the issues. (See Witkin, Cal. Evidence, § 224, p. 251; § 227, pp. 255-256.)
18 Section 6002 of title 22 of the California Administrative Code provides in pertinent part that: “(a) An appeal to the appeals board need not be formal, but it shall set forth the grounds or reasons for the appeal. ’ ’ Unemployment Insurance Code section 1952 provides in pertinent part as follows: “The Appeals Board and its representatives and referees are not bound by common law or statutory rules of evidence or by technical or formal rules of procedure but may conduct the hearings and appeals in such manner as to ascertain the substantial rights, of the parties. ’ ’
19 The rule advocated by modern textbook writers that a party’s inconsistent utterances need not be such as to have been independently receivable as the testimony of a qualified witness because it is the inconsistency with the party’s present claim which gives them logical force (4 Wigmore on Evidence, § 1053, p. 12; McCormick on Evidence, § 241, p. 507; Model Code of Evidence, rule 506; and see Witkin, Cal. Evidence, § 222(e), p. 249), is not the California rule. This is recognized in the 1962 Pocket Supplement of 4 Wigmore on Evidence, page 13 (note 4), wherein the Achen case is cited as being contra.
An analysis of the cases relied upon by Fibreboard discloses that they involve situations where the alleged inconsistent utterance was either a legal conclusion, an unauthorized statement, or a statement obviously not intended to be a stipulation of fact or a formal admission. Thus in Adelstein v. Greenberg, 77 Cal.App. 548 , 552 [ 247 P. 520 ], a statement of counsel during the course of an argument on demurrer was held to be merely a legal conclusion and not a statement made as an admission or stipulation of fact. Similarly, in Morrell v. Goldow, 99 Cal.App. 159 , 162 [ 278 P. 247 ], a statement by counsel, during an interchange between court and counsel regarding the number of outstanding shares in a stockholder's liability suit, that “ ‘they figured up nearer 800’ ” was held not to be intended as a stipulation or admission in the context and circumstances under which it was made. In Shaver v. Canfield, 21 Cal.App.2d 734 , 742 [ 70 P.2d 507 ], a statement in a petition for guardianship inconsistent with a party’s claim that certain property had been deeded to her was denied admission in evidence on the ground that it was prepared by an attorney without any direction as to its contents by the plaintiff and also upon the ground that such statement was merely a conclusion of the plaintiff. Cullinan v. Mercantile Trust Co., supra, 80 Cal.
Adverting to Exhibit “Q” in the present case, we find that it contains both statements of fact and legal conclusions. The statements in the three appeal documents were clearly statements of ultimate fact. It is there stated unequivocally that the decision of the referee is in error on the following grounds: “Claimants left their work on July 31, 1959 because of their respect for the picket line of Machinists’ Union, Local 1304, and continued out of work for that reason until the picket line was removed from the entrance to their employer’s establishment on September 4, 1959. . . .’’ We do not agree with counsel for Fibreboard that these statements are merely contentions or legal conclusions; nor do we subscribe to the proposition urged by Fibreboard that the situation in the present case is analogous to the pleading of inconsistent defenses in an answer.[21] In the latter regard, it suffices to say that the rule permitting inconsistent defenses is applicable to defenses set up in an answer in the same case. (Code Civ. Proc., §441; Oppenheimer v. Deutchman, 119 Cal.App.2d 450 , 453 [ 259 P.2d 457 ]; Jones v. Tierney-Sinclair, 71 Cal.App.2d 366 , 373 [ 162 P.2d 669 ].) Such defenses may not be considered as admissions against interest in the action in which the answer was filed. (Jones v. Tierney-Sinclair, supra, at p. 373; L. Mini Estate Co. v. Walsh, 4 Cal.2d 249 [ 48 P.2d 666 ].) In Jones, it was held, however, that where a defendant alleges facts in an inconsistent defense in one action and those facts are inconsistent with the position taken by the same party in a subsequent action between such defendant and other parties, the first verified pleading may be used against the pleader as an ad
20 Research discloses other cases wherein the distinction between statements of fact, on the one hand, and conclusions of law, opinion, and argument, on the other, is apparent. (See Sichterman v. R. M. Hollingshead Co., 117 Cal.App. 504 , 506 [ 4 P.2d 181 ]; Desny v. Wilder, 46 Cal.2d 715 , 729 [ 299 P.2d 257 ]; and see People v. Byars, 188 Cal.App. 2d 794 , 807 [ 10 Cal.Rptr. 677 ].)
21 Fibreboard concedes in its brief that it raised a defense in the unemployment compensation hearings inconsistent with its position in the present action.
As concerns the two transcripts of the oral arguinent by Fibreboard `s counsel in the proceedings before the appeals board, which are also included in Exhibit "Q," these are clearly legal conclusions by way of argument, and, therefore, inadmissible as admissions under the rule herein-above discussed.[22] We thus have a situation wherein Exhibit "Q" contains inadmissible as well as admissible evidence. The objection to such exhibit was, however, a general one. An inadmissible portion of a document, the remainder of which is admissible in evidence, cannot be reached by a general objection to the admission of the entire document, but the inadmissible portion must be specified. (People v. Lang Transportation Corp., 43 Cal.App.2d 134 , 141 [ 110 P.2d 464 ]; Newton v. Thomas, 137 Cal.App.2d 748 , 768 [ 291 P.2d 503 ]; Estate of De Laveaga, 165 Cal. 607 [ 133 P. 307 ]; Coveny v. Hale, 49 Cal. 552 , 556.) Accordingly, in the ease at bench, the evidence being good in part, the general objection to the entire exhibit should have been overruled.[23]
Having concluded that Exhibit “Q” should have been admitted we must now determine whether its exclusion constituted prejudicial error. This determination presents the
22 The pertinent portions of said argument are as follows: “ 'We submit in this case the members of this union, in compliance with the policy of the Labor Council and with their own individual convictions, had failed to report for work because of union principles and not because of any prevention by violence.’ ” " 'We submit that was the real purpose there with respect to these men, that evidence was uneontradicted by them. They did not work because of their union principles and are therefore ineligible under the rules. .. .’ ”
23 It is apparent from the record in the instant case that the trial court sustained the objection to the admissibility of Exhibit "Q” on the ground that it was not admissible at all as an admission.
Did the Trial Court Commit Error in Refusing to Give Certain Instructions Proposed "by Defendants?
No. Defendants’ defense, other than that set out in their affirmative defenses, rested on the public policy in California permitting a proper picket line to interfere with an employer’s business without liability to the union. (See Lab. Code, § 923.) Defendants proposed certain instructions which they assert were consistent with this defense, and which the trial court refused to give. Error is accordingly claimed, based on
24 This section, in pertinent part, provides: “No judgment shall be set aside, ... in any case, on the ground ... of the improper admission or rejection of evidence, ... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. ’ ’
The crucial issue for the jury’s determination in the in
25 Instruction No. 35: "The law in California recognizes that picketing hy a labor union can and usually does interfere with and cause a loss of business and profits of the employer against whom the picketing is directed. When the picketing is for a legitimate labor objective, and in this case, the object of the picketing was such a legitimate objective, and the behavior on the picket line is lawful, neither a union nor its members are liable in damages for the results of such picketing. "If you find that the behavior of the Defendants, or any of them, in the picketing activity was reasonable in the light of the circumstances, then you must find that the Defendants or any of them are not liable for the damages claimed by the Plaintiff. ’ ’ Instruction No. 36: "The law recognizes that the right to strike and picket includes the possibility of some disorder in any extensive or long drawn-out strike. Engaged in the activities are human beings whose feelings are stirred to the depths. "Rising tempers can call forth hot words which in turn can lead to blows. Such unfortunate developments are hard to prevent, even when cool heads direct the picketing. "By this Instruction I do not mean that the law excuses intimidation on the picket line. This would exceed the bounds of proper conduct. However, isolated incidents of vigorous behaving in picketing do not make the entire picketing activity unlawful, nor do such isolated incidents make a union liable for damages to an employer’s business caused by picketing. ’ ’ Instruction No. 37: "Picketing is more than free speech, since the very presence of the picket line can induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Nevertheless, such picketing is protected by our Constitution. "The right of free speech in picketing cannot be denied by drawing from a trivial rough incident or a moment of animal exuberance the conclusion that otherwise peaceful picketing has the taint of force. ’ ’ Instruction No. 38: "The occurrence of unlawful behavior, if any, in the vicinity of Plaintiff’s Emeryville plant at the time of the picketing activity, is not by itself enough to connect the wrongdoing to the Defendants. "The Plaintiff is required to establish by a preponderance of the evidence that the Defendants, and each of them, were responsible for such behavior, if any. ’ ’ Instruction No. 39: "The Defendant Unions had a picket line before the entrance to Plaintiff’s Emeryville plant from July 31 to September 4, 1959. This picket line interfered with the Plaintiff's business and caused loss of sales. "I instruct you that the law in California is that such picketing, if for a lawful object and by lawful means, does not render the picketing *715 unions and its members liable for the loss of sales that result from the picket line. "Plaintiff claims it suffered damages different from or in addition to the loss of sales from a lawful picket line because of acts of intimidation and coercion on the picket line for which Defendant Lloyd Ferber was responsible. "Plaintiff must prove by a preponderance of the evidence that the loss of sales it suffered was proximately caused by acts of intimidation and coersion on the picket line, if such acts occurred. "If you find that acts of coersion and intimidation on the picket line did not occur, or were not the acts of the Defendant Lloyd Ferber, then there is no basis for charging this Defendant with the damages claimed by the Plaintiff, and you will find for this Defendant. "If you find that acts of coersion and intimidation did occur, and were acts attributable to Defendant Lloyd Ferber, but if you find that such acts were not the proximate cause of the loss of sales (that is, the damages occurred but for other reasons than this Defendant’s coersion and intimidation, if any), then you will find for this Defendant. "If you find that the loss of sales were [sic] proximately caused by acts of coersion and intimidation attributed to Defendant Lloyd Ferber and such loss of sales damaged the Plaintiff, then, and only then, you will find for the Plaintiff as to this Defendant. "It is only if you reach this conclusion that you will consider the amount of damages to award. ’ ’ (Note: Instructions Nos. 40-43 are identical with Instruction No. 39, except that each applies to one of the defendants.) Instruction No. 45: " The mere presence of individuals in the vicinity - of the Plaintiff’s Emeryville plant at the time of the picketing does not make these individuals agents of the Defendants Unions. Strikes, lockouts, and picketing activity, by their nature, become public events and attract crowds of people who may be affected by the outcome of the activities. The crowds may show their sympathies for one side or the other, but their actions are not attributable to the Defendants unless these individuals are proved to be agents. ’ ’
In the case at bench, the trial court gave two instructions which, we are satisfied, properly declared to the jury the principles applicable to an award of damages for tortious conduct.[26]
Turning to proposed Instruction No. 35, we find that although the first paragraph is a correct statement of the declared policy of the law of this state as regards peaceful picketing,[27] the second paragraph erroneously states the duties and obligations of defendants with respect to such picketing. This portion of the instruction would have advised the jury that it should find for defendants if their behavior “in the picketing activity was reasonable in the light of the circumstances. ...” The test of liability is not whether the conduct of defendants was reasonable in the jury’s estimation, but whether such conduct amounted to unlawful tor
26 These instructions were as follows: ‘' Members of a Union have a right to peacefully patrol or stand near the- approach to a business establishment in order to persuade workmen employed there to withhold their labor, to attempt to persuade the public of the justness of their cause, or to accomplish proper economic goals. "However, neither the officers, members nor other representatives of a- Union have the right to conduct mass picketing, to intimidate or coerce others, to cause violence, or to make threats of violence as: a part of picketing or otherwise; and such actions are a proper basis upon which to award damages for loss or injury incurred as a proximate result thereof. - "The use of vile and abusive language and the threats of violence, if any, amount to physical intimidation which may not be justified under any principles governing the rights of persons engaged in labor disputes, and such actions, if any, may give rise to a cause of action for damages.”
27 This principle was adequately covered by the instructions given by the court as set out in fn. 26. Moreover, the question whether the picketing was pursuant to a legitimate objective was not an issue in the case, nor was it raised by the evidence in the' case.
Proposed instructions numbered 36 and 37 appear to he a paraphrase of certain language taken from opinions in the cases cited in support of the principle therein contained.[30]
28 In Civil Code section 1667 it is provided as follows; “That is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not expressly prohibited; ’ ’
29 “The law of this state imposes upon everyone the duty 'to abstain from injuring the person or property of another, or infringing upon any of his rights.’ (Civ. Code, § 1708.) There is a breach of such legal duty when one who performs an act not authorized by law infringes upon a right another is entitled to enjoy, or causes a substantial material loss to another. That breach constitutes the commission of a tort, under the laws of this state, for which an action in damages will lie.’’ (Garmon v. San Diego Bldg. Trades Council, supra, at p. 606.)
30 The first two paragraphs of Instruction No. 36 are taken from Republic Steel Corp. v. National Labor Relations Board., 107 F.2d 472 , 479. They are not verbatim quotations, nor did the ease involve the giving of jury instructions. The last paragraph relating to “isolated incidents’’ is taken from National Labor Relations Board v. Thayer Co., 213 F.2d 748 , 756, with the addition of certain embellishments not found in Thayer. The first paragraph of Instruction No. 37 is taken from the concurring opinion of Justice Douglas in Bakery & P. Drivers eta. Local v. Wohl, 315 U.S. 769 , 776 [ 62 S.Ct. 816 , 86 L.Ed. 1178 , 1184], with a substitution of language in the last line of the quotation, i.e., “Nevertheless, such picketing is protected by our Constitution, ” for “Hence thqse aspects of picketing make it the subject of restrictive regulation.’’ The second paragraph presumes to derive its support from dictum in the opinion of Justice Frankfurter in Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287 , 293 [ 61 S.Ct. 552 , 85 L.Ed. 836 , 841, 132 A.L.R. 1200 , 1203], wherein he was expressing the reason for the *718 court’s decision. We do not see in Justice Frankfurter’s language what defendants have distilled from it. What he said, in context with other language preceding it, is as follows: “But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution. ’ ’
Instruction No. 38 deals with burden of proof and preponderance of evidence. Instruction No. 45 is simply an elaboration of the agency instruction given by the court. These
Did the Trial Court Commit Error With Bespeet to Instructions on Provocation?
No. Defendants’ next charge of error is that the trial court failed to instruct the jury on the defense of provocation based on fraudulent misrepresentation. This defense was urged in defendants’ seventh affirmative defense. The evidence adduced before the jury in support of this defense was as follows: On May 26, the Union sent a letter to Fibreboard notifying it that the Union desired to modify the existing collective bargaining agreement between the parties as of August 1, and therein offered to meet with Fibreboard “for the purpose of negotiating a new contract.” On June 2, Fibreboard acknowledged, by letter, the receipt of the Union’s letter of May 26, “requesting a meeting to discuss modifications of the current Agreement. ...” Said letter stated that Fibreboard would contact the Union at a later date regarding a meeting for this purpose. Ferber testified that on or about June 15 he had occasion to telephone Thumann concerning a plant problem, and that at that time he asked Thumann if he had received copies of the proposed modifications to which Thumann replied that he had not. On or about June 22, Ferber telephoned Thumann and asked him if he had received the modifications to which Thumann replied that he had, but that he had not had time to study them, that
At the conclusion of the trial, defendants submitted five identical instructions,[32] each applicable to one of the defendants, upon the theory of defense based upon provocation resulting from fraudulent misrepresentation. The said instructions were to the effect that in its consideration of exemplary damages the jury must consider to what extent the acts of the respective defendants _ were provoked by Bibreboard or its agents, that “[s]ueh provocation could be misrepresentation by the Plaintiff's agent in connection with the failure to hold collective bargaining negotiations in June and July, 1959,” and that it was for the jury to decide if Thumann's representations were fraudulent and whether such fraudulent misrepresentations could provoke the named defendant into acts which the jury might decide gave rise to exemplary damages. The proposed instruction then defined “fraudulent misrepresentation” and concluded as follows: “If you find that the Defendant .. . was provoked by the acts of the Plaintiff, or
31 The nature of the Union’s proposed modifications or contract proposals are not disclosed by the record.
32 Instructions Nos. 48 to 52, inclusive, as modified.
Provocation may only be considered with respect to the issue of punitive damages. Acts of provocation, however, do not absolutely bar recovery for exemplary damages but are to be considered in reduction of, or setoff against, such damages. (Earl v. Times-Mirror Co., 185 Cal. 165 , 177 [ 196 P. 57 ]; Marriott v. Williams, 152 Cal. 705 , 710 [ 93 P. 875 , 125 Am.St.Rep. 89 ].) In the present ease the evidence was sufficient to justify an instruction that the conduct and actions of Fibreboard might be considered in mitigation of exemplary damages. Defendants were, therefore, entitled to an instruction on provocation in mitigation of exemplary damages as this was one of their theories of defense. The instruction submitted by them on the issue of provocation was not, however, a correct exposition of the law. This instruction, as framed, did not tell the jury that acts of provocation were to be considered in mitigation of punitive damages, but instructed that if the jury found provocation they were not to award any punitive damages at all. Although it is the trial court’s duty to give instructions expounding the law upon every reasonable theory of the case finding support in the evidence (Daniels v. City etc. of San Francisco, 40 Cal.2d 614 , 623 [ 255 P.2d 785 ]; Wilbur v. Cull,
33 The trial court’s instructions were as follows: “The Defendants have pleaded provocation as a defense to this action. You are instructed that this defense applies only to the claim for punitive damages and is not to he considered by you in determining the compensatory damages to be awarded to Plaintiff, if any. “In connection with the defense of provocation, certain evidence has been received by the Court which relates to the feelings or state of mind of the members of the Defendant Unions. “This evidence is to be considered by you for the limited purpose of determining whether or not the Defendants or any of them should be held liable for punitive damages; and, if so, for what amount.” The trial court also gave instructions defining punitive damages; instructed that such damages “are proper where the Defendants have been guilty of oppression, malice or fraud”; and defined “malice” and ‘ ‘ oppression. ’ ’
Did the Trial Court Commit Error in Instructing That the Collective Bargaining Agreement Was Terminated and Was not Breached by Fibreboardf
Yes. Defendants contend that the trial court committed prejudicial error when it instructed the jury that the collective bargaining agreement between Fibreboard and the Union terminated on July 31, and that Fibreboard did not breach said contract in any respect. Initially, the court permitted the introduction of evidence relative to whether there was a termination or breach of the contract as bearing on the issue of provocation. At the end of the second week of trial
The basis of claimed error is that the trial court erroneously interpreted the contract, and that the court’s instruction, predicated upon such interpretation, had the prejudicial effect of discrediting defendants’ witnesses who testified that they were relying upon the existence of a valid and binding contract. Defendants urge that the interpretation of the contract is controlled by the manifest intent of the parties, as shown by their conduct prior to the controversy. Such conduct, say defendants, is evidenced by the communications between the parties with respect to the negotiations relative to the modifications requested by the Union. The thrust of defendants’ argument, therefore, is that the parties themselves treated the contract as an existing contract as to all of its terms, excepting those which had been reopened for negotiation by virtue of the request for modification.
We would here point out that whether the contract was breached is not vital to the issue of violence because a breach of a collective bargaining contract does not justify a resort to tortious conduct. Such breach is, however, relevant to the defense of provocation as a mitigating circumstance with respect to punitive damages. Accordingly, the question whether the contract was in fact breached was a circumstance justifying an instruction on the limited issue of provocation. In the present case the jury was merely told that the contract was terminated and that it was not breached by Pibreboard. Although limited to the question of provocation such instruction was not erroneous if it constituted a correct statement of the law. Its effect was to completely remove the question of contract termination or breach from the jury’s consideration.
Our inquiry is therefore directed to whether the trial court’s interpretation of the contract was correct. Defendants do not contend that Pibreboard breached said contract other than by its action in terminating it. The core of the inquiry, then, is whether the contract terminated pursuant to its own terms and conditions. If the construction of the contract is based upon its terms without the aid of extrinsic evidence, its construction is one of law and we are not bound by the trial court’s interpretation. (Estate of Platt, 21 Cal.2d 343 , 352 [ 131 P.2d 825 ]; Meyer v. State Board of Equalization, supra, 42 Cal.2d 376 , 381; Estate of Black, 211
Adverting to the subject contract, we are satisfied that the construction placed by the trial court upon the pertinent clause under consideration was not a reasonable one.[34]
34 The pertinent provisions oí said clause read as follows: “This Agreement shall continue in full force and effect to and including July 31, 1959, and shall be considered renewed from year to year thereafter between the respective parties unless either party hereto shall give written notice to the other of its desire to change, modify, or cancel the same at least sixty (60) days prior to expiration. “Within fifteen (15) days after notice of reopening is given, the opening party shall submit a complete and full list of all proposed modifications. All other sections shall remain in full force and effect. Negotiations shall commence no later than forty-five (45) days prior to the anniversary date of the Agreement unless otherwise mutually changed. “
Did the Trial Court Commit Errors of Procedure "Which Denied Defendants a Fair Trial?
No. Defendants contend that the trial court abused its discretion when it denied their motion, made during the course of the trial, to amend their answer by adding a sixth affirmative defense. This proposed defense asserted that as a result of the alleged fraudulent misrepresentations on the part of Fibreboard, relative to the negotiations with respect to the collective bargaining agreement, Fibreboard did not come-into court with "clean hands” and therefore was not entitled to the relief requested in its complaint. The record discloses that the trial court had, during the trial, allowed evidence concerning the proposed modifications to the collective bargaining agreement and the attempts to negotiate the same as relevant to the second affirmative defense asserting "unclean hands” and the third affirmative defense alleging
The general rule is that motions to amend an answer during the course of a trial are addressed to the sound discretion of the court and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. (Moss Estate Co. v. Adler, 41 Cal.2d 581 , 585-586 [ 261 P.2d 732 ]; Peterson v. Peterson, 74 Cal.App.2d 312 , 323 [ 168 P.2d 474 ]; Code Civ. Proc., § 473.) In the present case the defense of provocation based on fraudulent misrepresentations was permitted and the evidence adduced thereunder was before the jury for its consideration under that issue. As we have hereinabove pointed out, the factual question as to whether there was a breach or termination of the contract should likewise have been submitted to the jury on the provocation issue. Our inquiry is therefore directed to whether the trial court abused its discretion in not permitting the defense of unclean hands based upon the alleged fraudulent misrepresentations.[35]
The defense of unclean hands must be raised in the trial court to be available. Accordingly, it must be pleaded or called to the attention of the trial court in order that it may pass on the defense and also to permit the person against whom it is sought to be applied the opportunity to present such evidence as might bear on that issue. (Stone v. Lobsien, 112 Cal.App.2d 750 , 758 [ 247 P.2d 357 ]; Watson v. Poore, 18 Cal.2d 302 , 311-312 [ 115 P.2d 478 ]; Scannell v. Murphy, 82 Cal.App.2d 844 , 849 [ 187 P.2d 790 ]; Sears, Roebuck & Co. v. Blade, 139 Cal.App.2d 580 , 594 [ 294 P.2d 140 ]; Moriarty v. Carlson, 184 Cal.App.2d 51 , 57-58 [ 7 Cal.Rptr. 282 ]; and see
35 It should be here pointed out that while the trial court ruled that as a matter of law there was no breach of contract, it did not strike the second affirmative defense which raised the defense of unclean hands based upon a breach of contract on the part of Fibreboard.
Traditionally, the doctrine of unclean hands is invoked when one seeking relief in equity has violated conscience, good faith or other equitable principles in his prior conduct. (General Elec. Co. v. Superior Court, 45 Cal.2d 897 , 899-900 [ 291 P.2d 945 ]; DeGarmo v. Goldman, 19 Cal.2d 755 , 765 [ 123 P.2d 1 ].) Accordingly, one who violates his contract cannot have recourse to equity to support that violation. (DeGarmo v. Goldman, supra, at p. 764; Gavina v. Smith, 25 Cal.2d 501 , 506 [ 154 P.2d 681 ].) In the case at bench Fibreboard sought both injunctive relief and damages against defendants. Thus Fibreboard sought both equitable and legal relief. It cannot be questioned that the defense of unclean hands may be urged against a party seeking the aid of equity by way of an injunction. In the instant case, however, injunctive relief was denied Fibreboard. Defendants cannot be heard to complain, therefore, that they were prevented from urging the doctrine of unclean hands insofar as the equitable relief sought by Fibreboard is concerned. Defendants urge, however, that the defense was likewise available against Fibreboard’s legal action for damages. The question as to whether the equitable defense of unclean hands applies as a defense to a legal action appears to be of first impression. There is no California authority expressly holding that the equitable defense of unclean hands is applicable to a demand for money damages. That such a defense is available appears to be the holding of A. I. Gage Plumbing Supply Co. v. Local 300 of Internat. Hod Carriers, 202 Cal.App.2d 197 , 206 [ 20 Cal.Rptr. 860 , 92 A.L.R.2d 1223 ]. There a plumbing contractor brought an action against a laborers union and others for injunctive relief to prevent breach of a collective bargaining agreement, and, by way of a supplemental complaint, sought damages resulting from the alleged breach of contract. Damages were awarded the plaintiff. On appeal the defendants attacked the award of damages, one of the grounds being that the plaintiff was guilty of inducing the breach of contract and therefore had 11 ‘unclean hands’
We are satisfied that the equitable defense of unclean hands is available in this state as a defense to a legal action. We are persuaded to this conclusion, moreover, because in California, a defendant may set up as many defenses as he may have, regardless of the question as to whether they are of a legal or equitable nature, because the distinction which exists under the common law between actions at law and suits in equity, and the forms thereof, have been abolished. (See Carpentier v. City of Oakland, 30 Cal. 439 , 442-443.) As stated in Terry Trading Corp. v. Barsky, 210 Cal. 428 , 437 [ 292 P. 474 ], “It is well settled that under the system of code pleading equitable defenses and equitable counterclaims may be set up in actions at law, as well as legal defenses and counterclaims in suits in equity.”
It is equally well settled in this state, however, that it is not every wrongful act nor even every fraud which prevents a suitor in equity from obtaining relief. The misconduct which brings the clean hands doctrine into operation must relate directly to the transaction concerning which the complaint is made, i.e., it must pertain to the very subject matter involved and affect the equitable relations between the litigants. Accordingly, relief is not denied because the plaintiff may have acted improperly in the past or because
Error is also claimed on the part of the trial court in that it failed to inform counsel prior to argument of the instructions it proposed to give as provided in Code of Civil Procedure section 607a. This requirement is only applicable when counsel request that they be so advised. In the absence
Defendants’ final contention is that the verdict forms were confusing and biased against them. The trial court submitted two forms of verdict to the jury. One form was to be used in the event the jury should find for Fibreboard; the other if they should find for defendants. The trial court instructed the jury that if they found for plaintiff they were to insert the amount of compensatory damages and were to write in the names of defendants against whom such damages were assessed. On the same form and below the appropriate language for awarding compensatory damages was typed appropriate language for awarding punitive damages with the names of each of the defendants typed in and a blank line with a dollar sign after each name. While the jury was deliberating defendants interposed objections to the forms of verdict. Shortly thereafter, the jury returned to the courtroom for further instructions. At that time the court instructed the jurors that if they had “any problems at all with the forms of verdict” they should advise the bailiff and that then the court would go over the forms with them. At that time counsel for defendants requested that the jury be instructed: “That the fact that the verdict forms have dollar signs and an amount does not necessarily mean they must fill in that amount. If the finding is for ‘Zero,’ they may do that, likewise. ’ ’ To this request the court stated: ‘ ‘ That is correct. All right. Now, are there any other questions?” There was no
36 This tardy presentation was apparently with the trial court’s acquiescence and without objection on the part of Fibreboard.
Subsequently, the jury returned to the courtroom and announced that it had reached a verdict. The verdict as then read by the clerk declared that the jury found in favor of plaintiff and assessed compensatory damages in the sum of $285,000 against “Defendants: East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO” and assessed exemplary damages “against the Defendants as follows : East Bay Union of Machinists, Local 1304, $4,000.00; United Steelworkers of America, AFL-CIO, $20,000.00 ; Lloyd Ferber, $0; William F. Stumpf, $0; Dave Area, $0.” The trial court then queried the foreman of the jury as to the manner in which the designated defendant was listed in the portion providing for compensatory damages and asked whether it was one defendant or whether it was intended to include both the Local and the International. The foreman responded that it included both. The trial court then asked whether insofar as the three individual defendants were concerned the jury found in their favor. To this question the foreman answered in the affirmative. The trial judge then instructed the jury that it should proceed to correct its verdict and that if it intended to find against both the Local and the International it should list them separately, but that if it intended to find against one union only, namely the Local, no change was required. The jury was also then instructed that if it intended to find in favor of the three individual defendants it should list their names on the other form of verdict.[37] The court later explained, however, that with respect to the individual defendants “they should be listed on one form or the other, whichever it is your feeling.”[38] The judge thereupon directed the jury to “retire and complete the filling out of the forms” and that “As soon as you have them filled out the way that you intend them to be filled out, return them and we will resume the proceedings. ’ ’
The record discloses that the jury then left the courtroom
37 The colloquy between the judge and the jury indicates that the form providing for a verdict in favor of defendants had not been filled out at all.
38 The court also stated as follows: "So, in effect, you write all five names down either on one sheet of paper or the other, but you write each of the five Defendants once. ’ ’
Defendants do not point out how they were prejudiced by the manner in which the verdicts were returned except to state that the jury was apparently confused and that the conclusion is warranted that the jury felt that the court was criticizing them for not having listed all five defendants on the form finding for plaintiff and that “they returned their second verdict to so oblige.” We find no basis for this assertion, nor do we perceive any prejudicial effect in the proceedings relative to the reception of the verdict. In the instant case the trial court followed the proper procedure when the jury first returned with a verdict which was clearly insufficient. “The proper procedure where an informal or insufficient verdict has been returned is for the trial .court to require the jury to return for further deliberation.” (Brown v. Regan, 10 Cal.2d 519 , 523 [ 75 P.2d 1063 ]; Bisnett v. Hollis, 207 Cal.App.2d 142 , 150 [ 24 Cal.Rptr. 231 ]; Mish v. Brockus, 97 Cal.App.2d 770 , 776 [ 218 P.2d 849 ]; Code Civ. Proc., § 619.) The trial court retains control over the proceedings with power to procure correction of informal or insufficient verdicts until the verdict is recorded and the jury is finally discharged. (Sparks v. Berntsen, 19 Cal.2d 308 , 313
39 Counsel for defendants announced that he did not wish the jury polled as to the verdicts on exemplary damages with respect to the three individual defendants.
Should the Cause Be Remanded for Retrial on the Issue of Exemplary Damages?
Yes. The award of exemplary damages must be reversed because the jury was erroneously instructed that the collective bargaining agreement was terminated and that it was not breached by Fibreboard. Whether the agreement was terminated and whether it was breached by Fibreboard were questions vital to the issue of provocation. As hereinabove discussed acts of provocation are to be considered in reduction of, or setoff against, punitive damages.
An appellate court has power to remand cases for retrial on a single issue such as damages (Little v. Superior Court, 55 Cal.2d 642 , 645 [ 12 Cal.Rptr. 481 , 361 P.2d 13 ]; Mondine v. Sarlin, 11 Cal.2d 593 , 600 [ 81 P.2d 903 ]), and this power includes a retrial on the limited issue of exemplary damages. (Brewer v. Second Baptist Church, 32 Cal.2d 791 , 801 [ 197 P.2d 713 ].) In the present case the jury has properly found that a tortious act was committed by all defendants, and has properly determined the amount of general damages against all defendants. The retrial of the issue of exemplary damages is only required, therefore, as to the defendants against whom punitive damages were awarded by the first jury, namely, the International and the Local. “Upon a retrial of the issue of exemplary damages it is only necessary for the second jury to be advised of the amount of general damages already awarded in order that it may main
The judgment is reversed insofar as it decrees the recovery of exemplary damages in the sum of $4,000 from defendant East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO, an unincorporated association, and in the sum of $20,000 from defendant United Steelworkers of America, AFL-CIO, an unincorporated association; and the trial court is directed to retry the issue of exemplary damages only against said defendants. In all other respects the portion of the judgment appealed from is affirmed. Respondent, Fibreboard, is to recover its costs on the appeal of defendants Ferber, Stumpf and Area. Each side is to bear its own costs on the appeal of defendants East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO, and United Steelworkers of America, AFL-CIO.
Bray, P. J., and Sullivan, J., concurred.
A petition for a rehearing was denied June 26, 1964, and appellants’ petition for a hearing by the Supreme Court was denied August 5, 1964.
Cases cited
- Crawford v. Southern Pacific Co. 3 Cal.2d 427 at 429 p. 696
- Florez v. Groom Development Co. 53 Cal.2d 347 at 354 p. 696
- English v. Drumwright 195 Cal.App.2d 809 at 813 p. 697
- People v. Hecker 179 Cal.App.2d 823 at 827 p. 697
- People v. Berti 178 Cal.App.2d 872 at 876 p. 697
- Rovegno v. San Jose Knights of Columbus Hall Ass'n 108 Cal.App. 591 at 596 p. 697
- General Petroleum Corp. v. City of Los Angeles 42 Cal.App.2d 591 at 595 p. 697
- Thayer v. Pacific Electric Railway Co. 55 Cal.2d 430 at 438 p. 697
- Larson v. Solbakken 221 Cal.App.2d 410 at 416 p. 697
- People v. Santo 43 Cal. 2d 319 at 326-327 p. 697
- Goodale v. Thorn 199 Cal. 307 at 315 p. 698
- Campbell v. Genshlea 180 Cal. 213 at 220 p. 698
- People v. Staver 115 Cal.App.2d 711 at 724 p. 698
- Albert v. McKay & Co. 174 Cal. 451 at 456 p. 699
- People v. Orcalles 32 Cal.2d 562 at 572 p. 699
- Wilson v. Foley 149 Cal.App.2d 726 at 731 p. 699
- Froeming v. Stockton Electric Railroad 171 Cal. 401 at 408 p. 699
- Crocker-Anglo National Bank v. American Trust Co. 170 Cal.App.2d 289 at 299 p. 700
- Powers v. Board of Public Works 216 Cal. 546 at 552 p. 700
- People v. Collum 122 Cal. 186 at 188 p. 700
- In re the Estate of O'Connor 118 Cal. 69 at 70 p. 700
- People v. Burns 16 Cal.App. 416 at 423 p. 700
- Wicktor v. County of Los Angeles 177 Cal.App.2d 390 at 405 p. 700
- Hatfield v. Levy Bros. 18 Cal.2d 798 at 810 p. 700
- People v. Hawkins 177 Cal.App.2d 714 at 719 p. 700
- Lee v. Gregoriou 50 Cal.2d 502 at 505-506 p. 701
- Santa Clara Properties Co. v. R. L. C., Inc. 217 Cal.App.2d 840 at 849-850 p. 701
- Natural Soda Products Co. v. City of Los Angeles 23 Cal.2d 193 at 199 p. 702
- Hoag v. Jenan 86 Cal.App.2d 556 at 563 p. 702
- Guttinger v. Calaveras Cement Co. 105 Cal.App.2d 382 at 387 p. 702
- Yates v. Kuhl 130 Cal.App.2d 536 at 542 p. 702
- Grupe v. Glick 26 Cal.2d 680 at 692-693 p. 703
- Gainer v. Storck 169 Cal.App.2d 681 at 687 p. 703
- Edwards v. Container Kraft Carton & Paper Supply Co. 161 Cal.App.2d 752 at 759-761 p. 703
- City of Oakland v. Pacific Gas & Electric Co. 47 Cal.App.2d 444 at 450 p. 704
- Reclamation Dist. No. 833 v. Am. Farms Co. 209 Cal. 74 at 80 p. 704
- Cummings v. Kendall 41 Cal.App.2d 549 at 558-559 p. 704
- DeCorsey v. Purex Corporation 92 Cal.App.2d 669 at 676 p. 704
- Summers v. Tice 33 Cal.2d 80 at 85 p. 704
- Finnegan v. Royal Realty Co. 35 Cal.2d 409 at 419 p. 704
- Vitagraph, Inc. v. Liberty Theatres Co. 197 Cal. 694 at 699-700 p. 705
- Andersen v. La Rinconada Country Club 4 Cal.App.2d 197 at 201 p. 705
- Connor v. Grosso 41 Cal.2d 229 p. 705
- Slater v. Pacific American Oil Co. 212 Cal. 648 p. 705
- Dauenhauer v. Sullivan 215 Cal.App.2d 231 p. 705
- Bonebrake v. McCormick 35 Cal.2d 16 at 18-19 p. 707
- People v. Southack 39 Cal.2d 578 at 585 p. 707
- Meyer v. State Board of Equalization 42 Cal.2d 376 at 385, at 381 p. 707, p. 723
- Cahill Bros. v. Clementina Co. 208 Cal.App.2d 367 at 383 p. 707
- Dolinar v. Pedone 63 Cal.App.2d 169 p. 707, p. 710
- Nungaray v. Pleasant Valley Lima Bean Growers & Warehouse Ass'n 142 Cal.App.2d 653 at 667 p. 707
- Gonzales v. Pacific Greyhound Lines 34 Cal.2d 749 at 754 p. 707
- People v. Leyva 187 Cal.App.2d 249 at 254 p. 707
- Bell v. Staacke 159 Cal. 193 at 196-197 p. 707
- Scafidi v. Western Loan & Building Co. 72 Cal.App.2d 550 at 561 p. 707
- Harmon v. Keough 41 Cal.App. 773 at 775 p. 707
- Morris v. Board of Education 119 Cal.App. 750 at 752 p. 708
- Hospelhorn v. Newhoff 43 Cal.App.2d 678 at 680 p. 708
- Kohn v. Kohn 95 Cal.App.2d 708 at 716, 717-719 p. 708
- Browne v. Superior Court 16 Cal.2d 593 at 599 p. 708
- Lavenbarg v. Shetrone 27 Cal.2d 108 at 115 p. 708
- Horton v. Horton 115 Cal.App.2d 360 at 367 p. 708
- Brunson v. Babb 145 Cal.App.2d 214 at 227 p. 708
- Sievers v.Pacific Gas & Electric Co. 57 Cal.App.2d 455 at 456 p. 708
- Achen v. Pepsi-Cola Bottling Co. 105 Cal.App.2d 113 at 123 p. 709
- Kamm v. Bank of California 74 Cal. 191 at 195-198 p. 709
- Cullinan v. Mercantile Trust Co. 80 Cal.App. 377 at 384 p. 709
- People v. Byars 188 Cal.App.2d 794 at 807 p. 709
- Adelstein v. Greenberg 77 Cal.App. 548 at 552 p. 710
- Morrell v. Caldow 99 Cal.App. 159 at 162 p. 710
- Shaver v. Canfield 21 Cal.App.2d 734 at 742 p. 710
- Oppenheimer v. Deutchman 119 Cal.App.2d 450 at 453 p. 711
- Jones v. Tierney-Sinclair 71 Cal.App.2d 366 at 373 p. 711
- L. Mini Estate Co. v. Walsh 4 Cal.2d 249 p. 711
- People ex rel. Department of Public Works v. Lang Transportation Corp. 43 Cal.App.2d 134 at 141 p. 712
- Newton v. Thomas 137 Cal.App.2d 748 at 768 p. 712
- In re the Estate of de Laveaga 165 Cal. 607 p. 712
- Coveny v. Hale 49 Cal. 552 at 556 p. 712
- People v. Watson 46 Cal.2d 818 at 836 p. 713
- James v. Marinship Corp. 25 Cal.2d 721 at 728-729 p. 715
- Messner v. Journeymen Barbers, Hairdressers & Cosmetologists, International Union of America, Local 256 53 Cal.2d 873 at 876-877 p. 715
- Garmon v. San Diego Building Trades Council 49 Cal.2d 595 at 602-606 p. 716
- Seven Up Bottling Co. of Los Angeles v. Grocery Drivers Union Local 848 49 Cal.2d 625 at 628 p. 716
- United Construction Workers v. Laburnum Construction Corp. 347 U.S. 656 p. 716
- Huggans v. Southern Pacific Co. 92 Cal.App.2d 599 at 614 p. 717
- Jaeger v. Chapman 95 Cal.App.2d 520 at 525 p. 717
- Francis v. City & County of San Francisco 44 Cal.2d 335 at 341 p. 718
- Sloan v. Stearns 137 Cal.App.2d 289 at 299-300 p. 718
- Reagh v. San Francisco Unified School District 119 Cal.App.2d 65 at 73 p. 718
- Lenard v. Edmonds 151 Cal.App.2d 764 at 774-775 p. 718
- Dodge v. San Diego Electric Railway Co. 92 Cal.App.2d 759 at 764 p. 718
- Hicks v. Ocean Shore Railroad 18 Cal.2d 773 at 783 p. 718
- Chutuk v. Southern Counties Gas Co. 21 Cal.2d 372 at 381 p. 718
- Luis v. Cavin 88 Cal.App.2d 107 at 115 p. 719
- Middleton v. Post Transportation Co. 106 Cal.App.2d 703 at 706 p. 719
- Taha v. Finegold 81 Cal.App.2d 536 at 543 p. 719
- Rios v. Bennett 88 Cal.App.2d 919 at 924-925 p. 719
- Roy v. Mission Taxi Co. 101 Cal.App.2d 438 at 446-447 p. 719
- Earl v. Times-Mirror Co. 185 Cal. 165 at 177 p. 721
- Marriott v. Williams 152 Cal. 705 at 710 p. 721
- Daniels v. City of San Francisco 40 Cal.2d 614 at 623 p. 721
- Wilbur v. Cull 145 Cal.App.2d 41 at 43 p. 722
- Shaw v. Pacific Greyhound Lines 50 Cal.2d 153 at 158 p. 722
- Merrill v. Buck 58 Cal.2d 552 at 563-564 p. 722
- Hom v. Clark 221 Cal.App.2d 622 at 639 p. 722
- State Rubbish Collectors Ass'n v. Siliznoff 38 Cal.2d 330 at 340 p. 722
- Bouse v. Madonna Construction Co. 201 Cal.App.2d 26 at 31 p. 722
- Platt v. Platt 21 Cal.2d 343 at 352 p. 723
- Prickett v. Royal Insurance 56 Cal.2d 234 at 237 p. 724
- Lundin v. Hallmark Productions, Inc. 161 Cal.App.2d 698 at 701 p. 724
- Woodbine v. Van Horn 29 Cal.2d 95 at 104 p. 724
- Moss Estate Co. v. Adler 41 Cal.2d 581 at 585-586 p. 726
- Peterson v. Peterson 74 Cal.App.2d 312 at 323 p. 726
- Stone v. Lobsien 112 Cal.App.2d 750 at 758 p. 726
- Watson v. Poore 18 Cal.2d 302 at 311-312 p. 726
- Scannell v. Murphy 82 Cal.App.2d 844 at 849 p. 726
- Sears, Roebuck & Co. v. Blade 139 Cal.App.2d 580 at 594 p. 726
- Moriarty v. Carlson 184 Cal.App.2d 51 at 57-58 p. 726, p. 729
- Katz v. Karlsson 84 Cal.App.2d 469 at 474-475 p. 727
- Boericke v. Weise 68 Cal.App.2d 407 at 418, at 419 p. 727, p. 729
- General Electric Co. v. Superior Court 45 Cal.2d 897 at 899-900 p. 727
- DeGarmo v. Goldman 19 Cal.2d 755 at 765 p. 727
- Gavina v. Smith 25 Cal.2d 501 at 506 p. 727
- A. I. Gage Plumbing Supply Co. v. Local 300 of International Hod Carriers 202 Cal.App.2d 197 at 206 p. 727
- Morrison v. J. D. Willhoit 62 Cal.App.2d 830 at 838 p. 728
- Carpentier v. City of Oakland 30 Cal. 439 at 442-443 p. 728
- Terry Trading Corp. v. Barsky 210 Cal. 428 at 437 p. 728
- Bradley Co. v. Bradley 165 Cal. 237 at 242 p. 729
- Germo Manufacturing Co. v. McClellan 107 Cal.App. 532 at 541-543 p. 729
- Carman v. Athearn 77 Cal.App.2d 585 at 598 p. 729
- Treager v. Friedman 79 Cal.App.2d 151 at 173 p. 729
- Sheppard v. Wilcox 210 Cal.App.2d 53 at 61-62 p. 729
- Bisnett v. Hollis 207 Cal.App.2d 142 at 150 p. 732
- Mish v. Brockus 97 Cal.App.2d 770 at 776 p. 732
- Sparks v. Berntsen 19 Cal.2d 308 at 313 p. 732
- Crowe v. Sacks 44 Cal.2d 590 at 598 p. 733
- Little v. Superior Court 55 Cal.2d 642 at 645 p. 733
- Mondine v. Sarlin 11 Cal.2d 593 at 600 p. 733
- Brewer v. Second Baptist Church 32 Cal.2d 791 at 801 p. 733