Gotcher v. Metcalf

¶1I dissent. I agree with the majority’s conclusion that there is nothing in the record to support a charge of misconduct against defendant’s trial counsel or to warrant the granting of a new trial on this ground. As the main opinion points out, when Mr. DiResta (defendant’s counsel) commenced his argument to the jury, the trial judge had not yet decided whether to give or reject the proffered “right-of-way” instruction. Thus, he invited the problem by initially overruling Mr. Panattoni’s (plaintiffs’ counsel) objection to the reading of instructions even though properly he could have insisted that counsel not undertake to tell the jury what he, the judge, was going to say (Hodges v. Severns, 201 Cal.App.2d 99, 114 [20 Cal.Rptr. 129]). Moreover, Mr. DiResta had reasonable cause to" assume that his proffered instruction was going to be given. Mr. Panattoni objected because the Federal Regulation recited in the instruction states *106that “when aircraft of the same category are converging at approximately the same altitude, except head-on or nearly so, the aircraft to the other’s right has the right of way.” However, the verb “converge” means to “move toward a single point” or to “come together.” (Webster’s Third New Internat. Unabr. Diet.) In addition, Johnson testified that the Comanche was flying to the Debonair’s left, made a right turn and collided with the Debonair after completing a half circle, and an expert testified that this meant the airplanes were converging when they collided.1

¶2It is settled that the right to discuss the merits of the cause both as to the law and facts is “unabridged.” (People v. Molina, 126 Cal. 505, 508 [59 P. 34].) Therefore, “ ‘counsel may in his argument, state what the law is . . . provided of coursé the statement of what he considers the law to be is correct.’ ” (De Armas v. Dickerman, 108 Cal.App.2d 548, 553 [239 P.2d 65].) But, because the term “misconduct” implies a dishonest act or “an attempt to persuade the court or jury by the use of deceptive or reprehensible methods” (People v. Baker, 207 Cal.App.2d 717, 724 [24 Cal.Rptr. 691]), an erroneous statement as to the law is not misconduct unless it is done in bad faith and “[a] lawyer is not guilty of misconduct merely because he is wrong as to the law.” (Davis v. Franson, 141 Cal.App.2d 263, 271 [296 P.2d 600]; Martinez v. Moore, 221 Cal.App.2d 516 [34 Cal.Rptr. 606].) When all -of the circumstances are considered, it cannot be said that Mr. DiResta was guilty of deceptive or reprehensible conduct. Although it is the better practice for trial lawyers to secure the approval of the court before expounding questionable points of law to the jury, Di Resta’s conduct in this case, albeit not commendable, is understandable.

¶3Nevertheless, I would affirm the order granting a new trial on the ground that the court erred when it failed to give plaintiffs’ proffered instruction on “conditional res ipsa loquitur.” It is the rule that the refusal to give a pertinent instruction is an error of law within subdivision 7 of Code of Civil Procedure section 657 (Gonsalves v. Petaluma Bldg. Materials Co., 181 Cal.App.2d 320 [5 Cal.Rptr. 332]). It is also the rule that an order granting a new trial must be affirmed on appeal if it should have been granted on any ground stated in the motion, except insufficiency of *107the evidence or excessive or inadequate damages (Treber v. Superior Court, 68 Cal.2d 128 [65 Cal.Rptr. 330, 436 P.2d 330]).

¶4Clearly, at least two of the three conditions declared essential in Ybarra v. Spangard, 25 Cal.2d 486, 489 [154 P.2d 687, 162 A.L.R. 1258], for the application of the doctrine of res ipsa loquitur were established by plaintiffs’ evidence. First, the mid-air collision was not due to any voluntary action or contribution on the part of the decedent, Helen L. Gotcher. She was a passenger in the airplane of a friend who had taken her on a pleasure trip. Second, the accident was of a kind which does not ordinarily occur in the absence of someone’s negligence; the collision was between two airplanes which had been flying over a large lake, in the same general direction, at about the same altitude and at a time when the visibility was excellent.2 It is never enough, however, for a plaintiff to prove merely that an accident was caused by the negligence of someone unidentified because he must also prove that it is more probable than not that the accident was caused by the negligence of the defendant. Ecco the third condition! The evidence must show that the accident was caused by an agency or instrumentality within the exclusive control of the defendant. Therefore, the crucial question is whether plaintiffs’ evidence established the existence of this third requirement, bearing in mind that “[t]he existence of the conditions upon which the operation of the doctrine is to be predicated is a question of fact and the right of the jury to find those facts must be carefully preserved.” (Seneris v. Haas, 45 Cal.2d 811, 827 [291 P.2d 915, 53 A.L.R.2d 124].)

¶5Admittedly, the early decisions pursued the view that the doctrine of res ipsa loquitur did not apply to an accident involving two or more moving vehicles because the defendant was only in control of one of them (Keller v. Cushman, 104 Cal.App. 186 [285 P. 399]; Rosenbaum v. First Doe Luce, 96 Cal.App. 149 [273 P. 862]). Nevertheless, I take issue with this absonant proposition. If the plaintiffs’ evidence clearly demonstrates that the accident was of a kind which ordinarily does not occur in the absence of someone’s negligence and, further, that it is more probable than not that it was caused in whole or in part by an instrumentality over which the defendant had the exclusive control, then why should the injured party be penalized by the fortuitous circumstance that someone else’s negligence may also have been a contributing factor. As Dean Prosser puts it, “[i]f the driver collides with a stationary object, an inference of negligence arises; why any other conclusion when he collides with *108a moving object which proper care requires him to look out for and avoid?” (Prosser, Law of Torts (3d ed.), p. 227.)

¶6I believe that the answer to Dean Prosser’s question is self-evident and that the decisional law of this state is moving slowly but inextricably in this direction. For example, an exception to the early belief that the doctrine of res ipsa loquitur was inapplicable to a collision between two or more vehicles was first recognized in cases involving common carriers on the theory that they undertake a special responsibility for their passengers’ safety (Holt v. Yellow Cab Co., 124 Cal.App. 385 [12 P.2d 472]; Formosa v. Yellow Cab Co., 31 Cal.App.2d 77 [87 P.2d 716]; Dieterle v. Yellow Cab Co., 34 Cal.App.2d 97, 100 [93 P.2d 171]; Stark v. Yellow Cab Co., 90 Cal.App.2d 217 [202 P.2d 802]). And, in the leading case of Ybarra v. Spangard, supra,25 Cal.2d 486, the California Supreme Court, in an enlightened opinion, departed from the single instrumentality requirement as to a patient who had suffered a traumatic injury to his shoulder during an appendectomy operation. In that case, the court, obviously influenced by the fact that the defendants had undertaken a special responsibility for the plaintiff’s safety and had the superior knowledge as to how the injury occurred, held that the plaintiff could avail himself of the doctrine of res ipsa loquitur against all doctors and hospital employees connected with the operation, although the evidence indicated that not all all of them could have been responsible.3 A few years later the court in Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 443-444 [247 P.2d 344], used this significant language (which the main opinion apparently ignores): “The requirement of control is not an absolute one. Although, as we have seen, the doctrine will not ordinarily apply if it is equally probable that the negligence was that of someone other than the defendant, the plaintiff need not exclude all other persons who might possibly have been responsible where the defendant’s negligence appears to be the more probable explanation of the accident.” And, finally, even in the relatively recent decision of Cordova v. Ford, 246 Cal.App.2d 180, 186 [54 Cal.Rptr. 508], relied upon in the main opinion, the appellate court, while holding that the doctrine normally does not apply to a collision between two vehicles, nevertheless had this to say: “To invoke the doctrine it was. incumbent upon plaintiff to produce evidence permitting the conclusion that it was more likely than not that defendant was responsible for the accident.”

¶7*109I would adhere to the proposition that “the exclusive control’' condition of res ipsa loquitur is met as to a collision involving two or more vehicles if the defendant was in exclusive control of one of the vehicles, if the evidence warrants a finding by the jury that it is more probable than sot that the collision could have been avoided regardless of the fault of the other driver had defendant been exercising the degree of care required of Mm, and if the evidence as to why defendant failed to do so is “practically accessible” to him and inaccessible to the injured person.

¶8I believe that plaintiffs’ evidence meets this test; it allows the conclusion to be drawn that even if it is assumed that the mid-air collision between the Comanche and the Deboniar was precipitated by the negligence of the deceased pilot, it is more probable than not that it could have been avoided by defendant if he had been exercising the degree of care required of an experienced pilot who had undertaken the responsibility of flying passngers for hire. An expert testified that the minimum separation which should be maintained, for safety purposes, between flying airplanes of the type involved in the collision, is 1,000 feet. Yet, according to the witness Johnson, when the two airplanes passed over Folsom Prison they were flying at approximately the same speed and altitude, with the Comanche in the lead by only 400 feet and to the left of the Debonair by only 300 feet. Defendant testified that he did not see the Comanche until after the collision, but the collision took place over a large scenic lake and in an area where the air traffic is such that the presence of other planes should have been suspected.4 Moreover, if Johnson’s testimony is to be believed, the other plane should have been in plain view and would have been seen if defendant had been looking; the visibility was excellent; the Comanche was painted red and white, and it was only a short distance ahead of the Debonair and slightly to the Debonair’s left, the side on which the pilot was seated. Johnson said that the Comanche had completed a half circle when the planes collided. Arguably, defendant had ample time to take evasive action if he had not been pointing out the scenery and other points of interest to his passengers. In fact, the testimony of an expert, in answer to a hypothetical question, raises the inference that defendant did take some evasive action prior to the collision. This testimony in turn could indicate that defendant saw the Comanche shortly before the accident, contrary to his testimony, and that he was not explaining all of the circumstances of the accident.

¶9The author of the main opinion apparently weighs and resolves conflicts in the evidence. He suggests, for example, that the Debonair was ahead of *110the Comanche because only the Debonair’s tail assembly and rear portion were damaged in the collision. But, Edward Johnson testified that when the airplanes passed over Folsom Prison the Comanche was in the lead by about 400 feet and to the Debonair’s left by about 300 feet, and the Comanche commenced a gradual turn to the right and had completed a half circle when the planes collided. My colleague states that his hypothesis that the Debonair may have been in the lead is supported not only by the physical evidence relating to the damage of the Debonair, but also by the testimony of the defendant’s passengers who were looking ahead, down and about them and did not see the Comanche. Mr. and Mrs. LeJeune were looking at the dam shortly before the accident occurred. It is basic that when an instruction on conditional res ipsa loquitur is given to the jury, it is up to the jury to weigh and resolve conflicts in the evidence in order to determine whether the doctrine is applicable.

¶10The main opinion also relies on the dicta in Faulk v. Soberanes, 56 Cal.2d 466, 470 [14 Cal.Rptr. 545, 363 P.2d 593], and holds that in any event the doctrine of res ipsa loquitur is inapplicable in this case because the deceased pilot was not a defendant. It suggests that defendant would have been placed at a serious disadvantage had he been required to exculpate himself in order to avoid liability when the other pilot, who was equally or solely negligent, was not before the court.

¶11The Faulkcase is distinguishable. In that case, although the evidence showed that the accident was of a kind which does not ordinarily occur in the absence of someone’s negligence, it also showed that it was equally probable that the negligence was that of the driver of another car who had not been named in the lawsuit. The court understandably stated that “defendant would be placed at a serious disadvantage were she required to exculpate herself in order to avoid liability when the other driver, who may have been equally or solely negligent is not before the court.” In this case, the evidence does not merely show that the accident was of a kind which does not ordinarily occur in the absence of someone’s negligence, and that it was equally probable that the negligence was that of the deceased pilot, but it also shows that notwithstanding the deceased pilot’s negligence, it is more probable than not that the collision could have bee” !oided by defendant had he been using due care in the operation of his « ■ -in 'ane. Therefore, if the res ipsa loquitur instruction had been given, defc-iucait could have exculpated himself by satisfactorily explaining his own conduct without regard to the conduct of the deceased pilot. And, because the evidence as to why he failed to avoid the accident under all of the circum*111stances we have mentioned is “practically accessible to him” but “inaccessible” to the plaintiffs, he would not have been placed at a disadvantage.

¶12I would affirm the order granting a new trial.

¶13A petition for a rehearing was denied April 24, 1970, and the petition of the plaintiffs and appellants for a hearing by the Supreme Court was denied May 21,1970. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.