Morrison v. Jose

Plaintiff and respondent Morrison prosecuted this action against defendants and appellants Corine Jose and A. D. Jose, for damages resulting from injuries received in an automobile accident. The respondent was an employee of Winnie Whitmore, upon whose dairy ranch he resided. Fred Lanagan was a truck driver for Mrs. Whit-more, and on the night in question he had possession of her pick-up truck. He invited Morrison to accompany him to Ford City, which is a few miles distant from her ranch. Corine Jose was the driver of a Plymouth automobile which collided with the pick-up truck which was being driven by Lanagan. It was stipulated that Corine and A.

Respondent testified that on April 21, 1940, he had to get some groceries so Lanagan said: “Come along, go with me”; that he went with Lanagan to town; that they first went to Lanagan’s home in Ford City, where he changed his clothes; that they then obtained a few groceries and then stopped in a pool hall or two; that he had “part of a drink” of whiskey at one place and one drink at another; that he thought Lanagan had one in each place; that they then started home; that Lanagan was driving and that he (Morrison) did not have anything to do with the control and operation of the “pick-up”; that when the driver Lanagan made the last turn just before the accident he (Morrison) reached down to straighten up the groceries he had purchased which were “setting on the floor-board”; that as they came close to the crest of the hill he saw two lights approaching; that the pick-up on which he was riding was on its right or easterly side of the road; that when he looked up the lights on the approaching car were “straight ahead or towards us”; that a collision occurred and he did not remember anything thereafter until he awakened in the hospital; that he received a fractured jaw and the doctors “wired my mouth shut”; that infection set in; that the wires were not removed until about September 1st; that it was about two months before he could open his mouth to eat; that he was in the county hospital about 22 days; that in addition to permanent scars on his face he had other quite serious injuries to his back and knee and a cut on his ear; that several teeth were broken and that he was out of work for about one year.

Lanagan testified that after he finished work at the ranch he picked up Morrison; that he was going to town and Mor

Corine Jose testified that she went driving with a Mrs. Maguire about 7 o’clock that evening; that before 9:30 p. m. she had had two and a half glasses of “fortified” wine to drink; that they then went home and saw her husband and later went to Taft; that she had another glass of wine there and did not feel the effects of any of it; that Mrs. Maguire had three or four bottles of beer. She then testified that as she approached the crest of the hill she saw a car just a few car lengths from her, approaching from the' opposite direction; that she was on her right-hand side of the white line and in her proper driving lane; that at the brow of the hill Lanagan swerved clear over into her lane, to his left, “like he was going catercornered across the road”; that she

A highway patrol officer testified that he investigated the accident. A diagram was drawn by him showing the relative positions of the cars on the highway after the accident. It indicates that the right rear wheel of the Plymouth automobile was sitting directly on the white line and the entire balance of the car was in the east lane; that the rear three-fourths of the pick-up was in the west lane over the white line and at right angles to it. There was a skid mark which began about 18 inches or 2 feet east of the white line and extended, so far as the witness could see, to the right rear wheel of the pick-up. He testified that there was a considerable amount of broken glass and two large oil spots where oil had run out of both vehicles; that the glass was right in the center where the two vehicles had come together and that ;the oil was underneath the motor of each vehicle; that the glass and debris was about in the center of the easterly or north-bound lane. He then testified that he went to the hospital and talked to Mrs. Jose and that she said “she didn’t know, didn’t remember” how the accident happened; that he smelled alcohol on her breath and that in his opinion “she was under the influence of liquor to the point that I ordered a blood test to be taken of her.”

Other witnesses corroborated the officer’s testimony as to the location of the cars after the accident. One witness described the pick-up truck as being entirely in the west lane after the accident. Another witness testified that he was hitchhiking on the road and noticed the pick-up truck as it passed him and at that time it was on the left side of the road and west of the center line; that when he observed it it was a few miles from the scene of the accident.

Several witnesses testified in reference to the condition of the respondent’s, as well as Lanagan’s and the appellant Corine Jose’s sobriety at the time. Evidence was then admitted which showed, in connection with the blood test of Mrs. Jose, 1.5 milligrams of absolute alcohol per cubic centimeter of blood, and it was testified by a physician that11 That is the lower elements of intoxication in which we feel that

Upon this evidence the jury returned a verdit for the respondent and against appellants in the sum of $3,300. Appellants appealed.

The first question presented involves the propriety of an instruction given by the court at the request of respondent. The jury was instructed that under the evidence presented the negligence of Lanagan, if any, could not be imputed to Morrison, the respondent. It is appellants’ contention that the defense of joint enterprise was pleaded and that there was sufficient evidence upon which the jury could have found that Morrison and Lanagan were, at the time, engaged in a joint enterprise and that therefore the trial court erred in instructing the jury accordingly. Giving the evidence the benefit of every reasonable inference, we are convinced that the trial court was correct in its interpretation of the evidence in this respect. The respondent did not drive the truck at any time, nor did he exercise any control or management over it whatsoever. It cannot be said that the mere fact that the respondent was going to town to obtain some groceries, and that as an accommodation to him Lanagan agreed to drive the truck to his home for the purpose of changing his clothes and subsequently purchasing the groceries for respondent, that a joint venture resulted. Morrissey v. Kirkelie, 5 Cal.App.2d 183 [ 42 P.2d 361 ], to us, seems to dispose of appellants’ contention in this respect. The plaintiff in that action rode from Los Angeles to Ventura in an automobile belonging to and driven by her fiancé. While in Ventura they filed a notice of intention to marry, having made the trip for that purpose. On the way home their car collided with another car. The court declined to instruct the jury on the doctrine of joint enterprise and imputable negligence upon the ground that under the undisputed facts the negligence of the driver could not be imputed to the plaintiff. The court said at page 184:

“The negligence of an automobile driver is not to be imputed to a passenger who has no control over the car in fact and who does not bear such a relation to the use of the vehicle as to warrant the assumption that he is jointly engaged with the driver in the operation thereof. The fact that they have a common purpose in making the trip is not,

The next question presented demands more consideration. The trial court gave an instruction, at the request of respondent, in the exact language of section 525 California Vehicle Code respecting a driver’s duty to drive on the right half and as close as practicable to the right hand curb or edge of the roadway. No instruction was offered by either party nor was any given in the language of section 527 California Vehicle Code in regard to a driver’s duty when passing another vehicle proceeding in an opposite direction. In several reported cases it has been stated that section 525 California Vehicle Code was not applicable where the cars were passing each other in opposite directions. (Arundel v. Turk, 6 Cal.App.2d 162 [ 44 P.2d 383 ]; Polk v. Weinstein, 12 Cal.App.2d 360 [ 55 P.2d 588 ]; Lewis v. Western Truck Line, 44 Cal.App.2d 455 [ 112 P.2d 747 ]; Bennett v. Chandler, 52 Cal.App.2d 255 [ 126 P.2d 173 ]; Finney v. Wierman, 52 Cal.App.2d 282 [ 126 P.2d 143 ].) The rule that a motorist should drive as close as practicable to the right hand edge of the highway has been applied in a number of situations other than when motorists were traveling in the same direction. (Mc Lellan v. Cocola, 133 Cal.App. 9 [ 24 P.2d 200 ]; Kellner v. Witte, 133 Cal.App. 231 [ 23 P.2d 1045 ].) See, also, Mathers v. County of Riverside, (Cal.App.) [ 132 P.2d 38 ], [Hearing granted in Supreme Court]. In the instant case, after reading section 525, supra, the jury was instructed:

“Conduct which is in violation of the provisions of the Motor Vehicle Act, which the court has read to you . . . constitutes negligence per se. By this statement is meant: that evidence of such conduct, standing alone, and in the absence of other evidence excusing or justifying it, gives rise to a presumption of negligence. Such presumption, however, is not conclusive; that is, it may be overcome by other evidence showing that under all the circumstances surrounding the event the conduct in question was such as might reasonably have been expected from a person of ordinary prudence.”

Without deciding whether the instruction, as given, was or was not erroneous, even if we assume it to be so, there still remains the question whether the giving of such an instruction was prejudicial under the facts of this case. (Blanton v. Curry, 20 Cal.2d 793 [ 129 P.2d 1 ]; Gackstetter v. Market Street Ry. Co., 130 Cal.App. 316 , 324 [ 20 P.2d 93 ]; Nance v. Fresno City Lines, Inc., 44 Cal.App.2d 868 [ 113 P.2d 244 ].) In Paulsen v. McDuffie, 4 Cal.2d 111 [ 47 P.2d 709 ], at page 119, it is said:

“Had this been a case where the contributory negligence of the plaintiff would have defeated his claim for damages, the consequences following the giving of that instruction might have been most serious, and possibly might have required a reversal of the judgment.”

Article VI, section 4% of the Constitution provides that no judgment shall be set aside in any case on the ground

The next question presented involves the admissibility of the results of the blood test of Mrs. Jose, as to alcoholic content. It is argued that there was not sufficient showing of the “tracing of the sample of blood” from the body of Corine Jose to the time of its analysis and interpretation of its alcoholic content. The state highway patrol officer testified, without objection, that he ordered a blood test taken of Mrs. Jose and that it was “taken there at the Taft County Hospital.” On cross-examination no questions were asked of the officer in respect to this testimony and no motion was made to strike it. It then appears from the undisputed evidence that the patrolman transported the sample of blood, so taken, to the Kern County General Hospital, and it was left with a Mrs. Saunders for analysis and report. Evelyn Graham, laboratory technician at the county hospital, testified as follows: Question by Mr. Borton: “Calling your attention to the 22nd of April, 1940, did you perform a blood test on a sample of blood of Mrs. Corine Jose? A. Yes. Q. What was the result of that test? Mb. Mack: Just a minute I object—no proper foundation laid. May I ask a question on voir dire? . . . Mr. Mack: Someone told you that was her blood ? A. The sample was labeled with her name. Q. How long after did you test it? A. I don’t know when it was taken. I procured it from a lock box at 8 o’clock in the morning . . . Q. You identified it by the label? A. Yes. Mr. Mack: I think that is hearsay, Your Honor . . . By the Court : I am going to let her testify on

Mrs. Saunders was then called and as counsel for respondent offered to mark certain X-rays and records from the Kern County hospital for identification, Mr. Mack interrupted and said: “If Mrs. Saunders says these are his, it is Okay ... I won’t raise the objection. They are directly from the Kern General, but reserve any other objection I may have . . . Mr. Borton: Are you going to question them? Mr. Mack: No.” The witness was then,excused. It appears that no objection to any question was made until the witness Graham had answered the question showing she made the test of a blood sample of Mrs. Jose. No mention was made to strike the answer “Yes.” It was not until the question was propounded seeking the result of the test that an objection was made for the purpose of “voir dire.” Counsel then, without making any other formal objection or motion to strike, remarked: “I think that is hearsay, Your Honor.” It will be noted that Mr. Borton again asked the question. No objection was then made and the witness answered without further objection. No motion was subsequently made to strike the answer. It is apparent that appellant submitted to the suggestion of the court and failed to make a timely and proper objection if he intended to preserve his point. It is a well-settled rule that parties cannot urge, for the first time on appeal, objections which could have been obviated if properly made in the court below. (2 Cal.Jur., p. 248, sec. 74.)

The testimony of Dr. Joe Smith was to the effect that, in his opinion as a medical man, a blood alcohol test of 1.5 milligrams per cubic centimeter of absolute alcohol indicated the lower limits of intoxication, in which it is dangerous for a person to drive a ear. He was the attending physician of respondent and was called as a witness on his behalf. Counsel for respondent inquired if he was a duly licensed practicing physician and surgeon in Kern County. Counsel for appellants then said: '“We will stipulate to Dr. Smith’s qualifications.” The doctor then testified as to the medical treatments given respondent and the extent of his injuries. Later, he was asked if he was familiar with blood alcohol tests and he replied: “A little, yes.” He was then

The other points raised are not meritorious nor deserving of further consideration.

Judgment affirmed.

Barnard, P. J., and Marks, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied May 24, 1943.