Jackson v. Hardy

Defendants, Hardy and Law, owners of livestock in the neighborhood of Mojave, appeal from a judgment by which the court assessed damages against them under the first cause of the complaint in the sum of $723.67 for injuries resulting from a collision upon a public highway at 10:30 p. m. of August 21, 1942, between the Jackson automobile and a cow belonging to defendant Hardy, and under the second cause, damages in the sum of $1,303.47 resulting from a collision between a bull belonging to defendant Hardy and a passenger bus belonging to M. C. Yahne, Incorporated, doing business as Inland Stages. This second collision occurred on the same night and on the same highway as the first and about an hour and a half later. Prior to the filing of the complaint the bus owner assigned its claim to the plaintiffs.

The first collision occurred on a much-traveled state high

As a result of the collision, Mrs. Jackson, asleep in the rear of the ear, was thrown out, sustaining the personal injuries complained of and the Jackson car was damaged.

The second collision, involving the passenger bus, occurred about half a mile south of the scene of the Jackson collision. The bus, containing 12 passengers and driven by P. G. Higgins, was heading north toward Mojave. It was traveling, according to the testimony of the driver, at about a speed of “Under 33 miles an hour, ’ ’ and in third gear, the next to the highest gear. He stated: “There was a pair of lights that came around the curve of a highway which for an instance [sic] blinded me. Then, just as the glare of those lights got past, here stands a bull in the middle of the road, and by that time

Leon Smith, a witness for plaintiffs, stated that he had been hired by Hardy to help defendant Law (Hardy’s father-in-law) drive his cattle, which were commingled in a common herd with those of defendant Law’s, from the place where the cattle were then grazing, some 11 miles east of Mojave,to Huntley Spring, about 12 miles west of Mojave; that he had been instructed by Hardy to take orders from Law; that there were about 210 or 215 head of cattle in the herd, of which 110 or 115 belonged to Hardy and the rest to Law; that on August 19th, 1942, Law brought his horse in a horse truck from Little Rock where he lived, a distance of about 40 miles from Mojave, to Smith’s place where the cattle were grazing, and he and Law saddled their horses and started to round up the cattle and herd them toward Huntley Spring; that they drove them to a point about three or four miles west of Mojave; that it took them from about 10 o’clock in the morning until about 6:30 that evening; that the cattle then started to bed down and Law said, “Well, we will just leave the cattle here and I will come back in the morning”; that Law asked him if he could come back and he answered, “No, I have got to work”; that he had taken off only one day from the Mojave Mud Cor

In considering the grounds urged for reversal, it is necessary to quote at this point the following portion of section 423 of the Agricultural Code of California, “No person owning, or controlling the possession of, any live stock, shall wilfully or negligently permit any such live stock to stray upon or

What may be called the charging allegations of the complaint as to each cause of action are identical and read as follows: “that at said time and place the defendants, and each of them, did negligently and carelessly permit certain cattle then and there owned ~by said defendants to stray upon the said highway, and to remain thereon unaccompanied by any person, and without providing a sufficient or any number of herders for such cattle, in violation of Section 423 of the Agricultural Code of the State of California, then and there in full force and effect; that by reason of such negligence on the part of the defendants, and each of them,” etc. (Italics added.)

The trial court in awarding damages for each collision found as follows: ‘ ‘ That at said time and place the defendants, and each of them, did negligently and carelessly permit certain cattle then and there owned by said defendants to stray upon the said highway, and to remain thereon unaccompanied by any person, and without providing a sufficient or any number of herders for such cattle and in violation of Section 423 of the Agriculture [sic] Code of the State of California, then and there in full force and effect; that by reason of such negligence on the part of the defendants, and each of them, ’ ’ etc.

The judge, in making his findings, merely added to his quotation from the complaint the conjunction “and,” as we have indicated by italics, and the addition of that single word directs us to the main point of this appeal. It is contended by appellants that the court was without power under the pleadings to find that the defendants negligently permitted their cattle to stray upon the highway, and also that such straying, so negligently permitted, constituted a violation of section 423. They assert that the first finding is on an issue of general negligence not alleged in the complaint, and argue that the ease was tried on an issue of specific negligence only, namely, the violation of the provisions of section 423. They say that, following the allegations of the complaint, they defended only against that particular type of negligence. As to the finding on the issue so raised they argue that the evidence failed to show that they had permitted their cattle to stray or remain upon a public highway, fenced, or otherwise bounded,

We note that defendants, answering both causes of action, had denied that they ‘ ‘ did negligently and carelessly, or negligently or carelessly, permit certain cattle then and there owned by said defendants, or either of them, or any cattle at all, to stray upon the said highway, or upon any highway, and/or to remain thereon unaccompanied by any person and/or without providing a sufficient or any number of herders for such cattle, in violation of Section 423 of the Agricultural Code of the State of California, or in violation of any section of any code, or of any law, of the State of California, or at all; and deny, and each of them denies, that by reason of such or any negligence on' the part of these defendants, or either of them, the vehicle then and there owned by the' plaintiff . . . collided with certain cattle [etc.].” (Italics added.) Also, as one affirmative defense, appellants alleged as to each cause of action that all damages resulted from an unavoidable accident so far as they were concerned “and occurred without any negligence on the part of these defendants, or either of them.”

Answering appellants’ contention that general negligence was not charged in the complaint, we point out that under our system of pleading, it is unnecessary to plead or refer to a statute relied upon as creating a duty, where the action is one predicated upon the' negligence of the defendant and not one to enforce a liability or penalty imposed by statute (4 Bancroft’s Code Pleading, p. 3538; Martin v. Shea (1920), 182 Cal. 130 , 136-7 [ 187 P. 23 ].) Therefore, the phrase in the allegation reading “in violation of Section 423 of the Agricultural Code of the State of California, then and there in full force and effect; . . .’’is unnecessary, being surplusage and redundant. (See Szopieray v. West Berkeley etc. Co. (1924), 194 Cal. 106 , 113 [ 227 P. 720 ]; Opitz v. Schenck (1918), 178 Cal. 636 [ 174 P. 40 ].) In the Opitz case defendant appealed from a judgment in favor of plaintiff in an action to recover damages for personal injuries. The complaint alleged negligence generally, and further alleged that defendant, in driving his automobile “cut the corner” at the intersection of the streets “in violation of an ordinance of the city of Los Angeles prohibiting it.” On appeal, it was claimed that the ordinance was improperly

That portion of the plaintiffs’ allegation, which we have italicized, supra, alleges negligence in general terms on the part of the defendants. The fact that there follows an enumeration of specific acts in the same allegation, to wit, (a) “and to remain thereon, unaccompanied by any person,” and (b) “and without providing a sufficient or any number of herders for such cattle, ’ ’ does not alter the character of the allegation in this case, for both of these specific acts, as well as the applicability of section 423, may properly be classed as evidentiary facts, provable under an allegation of general negligence. Since evidentiary averments are superfluous, they may be disregarded. We note at this point the statement in Olcese v. Hardy (1919), 40 Cal.App. 323 , 331 [ 180 P. 666 ], “Where general allegations of negligence are followed by an enumeration of specific facts, the plaintiff will not be limited to proof of specific acts unless the complaint clearly indicates the intention of the pleader to limit the negligence to such acts. [Citing cases.] ” Defendants were fully advised by the allegations of the complaint in the case at bar that their negligence in permitting their cattle to stray upon the highway was involved in this ease. That they so understood the issue presented by the complaint is indicated by the denials in their answer and the allegations in their affirmative defenses.

Appellants contend that there was no conflict in the evidence from which a construction might have been taken that the adjoining property was separated from the highway on both sides by a fence, or other means within the terms of section 423, but we take a contrary view. We do so upon reading the record and having in mind that this is a civil case, although violation of section 423 may be prosecuted as a misdemeanor. We rely upon the liberal construction allowable in a civil action when determining what is a fence; that is, whether it must be wholly complete or intact, or whether it may still be a fence when its course is occasionally interrupted by gaps or openings large or small; or whether a railroad track may be considered a curb; or whether a fence, not immediately adjacent to the highway but separated from it by a railroad right of way, is such “a fence” within the meaning of the statute. Notwithstanding the evidentiary conflict, the record shows that there was sufficient evidence before the trial court to indicate that the requirements of section 423 of the Agricultural Code as to fencing had been met, thus supporting

As a final contention appellants urge that the evidence does not show a direct causal connection between the alleged negligence and the injuries sustained. It is true that section 423 of the Agricultural Code abolishes the applicability of the doctrine of res ipsa loquitur to a case such as is presented on this appeal (Anderson v. I. M. Jameson Corp. (1936), 7 Cal. 2d 60 [ 59 P.2d 962 ]; Galeppi Bros., Inc. v. Bartlett, supra), but it cannot be said, as defendants claim, that plaintiffs here relied upon that doctrine to establish their ease, for the evidence goes far beyond the mere showing that the cattle were present on the highway. There was evidence before the trial court showing the circumstances under which they had been driven three or four miles west of the highway on which the accidents occurred; that Smith had warned Law that the cattls would not stay where they had bedded down; that Law did not return the next morning although he had indicated to Smith that he would do so, nor did he return to Smith’s place for his horse, which he had gone to the trouble of bringing 40 miles at the time of the roundup; that no one was actually in charge of the cattle from August 19th to the date of the accident. From this and other direct evidence, it could reasonably have been inferred, particularly in view of the testimony showing the propensity of cattle to return to their last waterhole, that the two animals involved in this case had strayed from the herd and were headed toward their old grazing ground; likewise, that since the two animals, admittedly the property of defendant Hardy, had strayed on to the highway, the 75 cattle found at and near the scene of the accidents were part of the same common herd from which the two straying cattle had come; also, since Law did not return to his horse, that neither he nor ,any one else was in charge of the herd from the evening of August 19, 1942, to the time of the accidents, two days later. In connecting defendants’ negligence to the injury, it is not necessary that an eyewitness be produced to testify directly to any fact, circumstantial evidence being sufficient. (Johnson v. Griffith (1941), 19 Cal.2d 176 , 179-180 [ 120 P.2d 6 ], quoting with approval language used in Gorman v. County of Sacramento (1928), 92 Cal.App, 656 , 661 [ 268 P. 1083 ].) The question of defendants’ negli

Judgment affirmed.

Shinn, J., and Wood (Parker), J., concurred.