employ of the defendant corporation in OcHACKELBERRY v. SHERLOCK LAND & tober of 1916, was injured by being trampled CATTLE CO. (Civ. 1752.) upon by a horse, claimed to be vicious, which (District Court of Appeal, Third District, Cali- plaintiff was in the act of unhitching from fornia. Feb. 17, 1919.) 1. MASTER AND SERVANT SERVANT-MEDICAL AID. a harrow team furnished him in his work by the defendant. Upon the trial a verdict and 77-INJURIES TO judgment thereon in the sum of $600 was rendered against the defendant, who appeals therefrom upon the grounds that the court erred in denying defendant's motion for nonsuit, and also erred in giving and refusing to give certain instructions. Instruction held erroneous in assuming master was under a legal liability to furnish medical aid for the injured servant. 2. MASTER AND SERVANT 295(3)—INJURIES TO SERVANTS-ACTIONS-INSTRUCTIONS-ASSUMPTION OF RISK. An instruction upon defective appliances and assumption of the risk by a servant working upon a farm handling horses and machinery held erroneous in stating that plaintiff was entitled to recover irrespective of alleged fault on the part of defendant. 3. MASTER AND SERVANT 125(1)-INJURIES TO SERVANT-TRIAL-INSTRUCTION-UNSAFE APPLIANCES-KNOWLEDGE OF DEFECT. An instruction that the plaintiff, who was injured while driving horses, was entitled to recover irrespective of whether or not the defendant knew that the team "was untrustworthy and unsafe" held erroneous. 4. TRIAL 194(19) — INSTRUCTIONS - PROVINCE OF JURY-INJURIES TO SERVANT. In his complaint, after alleging the employment and work thereunder (which is not denied), and that he was injured by a vicious horse owned and furnished him in his work by the defendant, plaintiff charges that the defendant's manager at all times well knew that said horse referred to was "an outlaw, wild, vicious, and treacherous, and was likely at any moment to become vicious and unruly." The complaint also alleges that, after plaintiff was injured by being trampled upon by the horse, he "was unable totally to help himself or to procure medical or other assistance, all of which the said manager of said ranch well knew, and failed, refused, and neglected without cause therefor to procure for said plaintiff a doctor of medicines, or to provide a way or means by which said plaintiff could procure such medical aid, all of which said medical aid and treatment was necessary and proper for said plaintiff in his said condition, and without which he could not recover from his said condition of lame injured "is a distance of more than ten miles from the town of Alturas, which was the nearest place where plaintiff could procure medical or other assistance." In a servant's action for injuries, an instruction that to be rendered liable the master need not have had actual knowledge of the unsafeness of the horses used by the servant, and that proof is sufficiently made out by plaintiff showing that the team and appliances were defective and unsafe, since such would have been discov-ness," and that the ranch on which he was ered by the master's proper inspection in time to prevent injury, and if conspicuous, such knowledge would be presumed, was improper, as instructing the jury to draw conclusions from presumptions imposed by the court. 5. MASTER AND SERVANT 204(1) TO SERVANT-ASSUMPTION OF RISK. Although the Employers' Liability Act excludes from the benefit of its provisions any employé engaged in farm work, a servant injured by defective team while working upon a farm cannot be held to have expressly or impliedly assumed the risk, in view of the Roseberry Act, which is not repealed by St. 1915, p. 1081, § 12, subd. 3(c), except as to matters included within the latter act. - INJURY No demurrer or motion to strike out was filed by defendant. And defendant's answer, though it specifically denies the allegations tive defenses. in the complaint, does not set up any affirma The evidence was in sharp and decisive conflict in regard to the alleged dangerous and vicious character of the horse in question, and the defendant's knowledge in regard thereto and its consequent negligence in the premises. [1] The following is one of the instructions, Appeal from Superior Court, Modoc Coun- the giving of which by the court is assigned ty; Clarence E. Raker, Judge. Action by Charles Hackelberry against the Sherlock Land & Cattle Company. Verdict and judgment for plaintiff, and defendant appeals. Judgment reversed, and cause re manded for new trial. Jamison & Wylie, of Alturas, for appellant. J. T. Sharp and J. S. Henderson, both of Alturas, for respondent. BUCK, Presiding Justice pro tem. Plaintiff, while engaged in farming work in the as error: "The court further instructs you, gentlemen of the jury, that if you find from the evidence in this case that the plaintiff was disabled, as it is alleged in his complaint, and unable to procure medical aid for the length of time, and that the defendant herein carelessly neglected to procure medical aid and assistance as alleged in the complaint, and the evidence shows you that the plaintiff suffered damages from said negligent act, it is your duty to find for the plaintiff in such amount as you may deem reasonable from the evidence, regardless of the cause leading up to the accident." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The giving of the foregoing instruction constituted error, which, in view of the record as a whole, was also prejudicial error. The instruction, without warrant, assumes that a legal liability can exist and constitute a cause of action in the absence of a corresponding legal duty. "Soon after the commencement of the nineteenth century it was definitely laid down, as a rule applicable to all descriptions of servants except apprentices, that a general obligation to provide medical attendance is not an implied incident of a contract of hiring. In one point of view this rule involves the consequence that the master is not bound to defray the expenses of such attendance upon a servant who falls sick or receives personal injuries in the course of the employment, unless he has expressly or impliedly agreed to do so. Under another aspect it operates so as to exempt the master from liability for refusing or neglecting to provide such attendance. By nearly all the American courts this rule has been adopted without any qualifications." Labatt, Master and Servant (2d Ed.) vol. 5, par. 1999, p. 6180. The apparent harshness of this rule has, of course, been modified by statutory workmen compensation acts. But, as will be noted later, this case has not been brought within, and does not fall within, the act. taken to the town of Alturas. The foot was getting worse and worse." [2, 3] The court erred in giving the following instructions at the request of the plaintiff: "Instruction No. 10. The court instructs you, gentlemen, that a servant is not barred from recovering in every case as a matter of law when he knows a defect exists in the appliance, and that there is a certain amount of danger surrounding its use, and if you believe from the evidence in this case that the plaintiff knew that a defect existed in the appliance which he used in course of his employment, he is nevertheless entitled to recover in this action unless you are convinced by the evidence that the risk was so great that a man of ordinary prudence would have been impelled by reason thereof to discontinue his work." "Instruction No. 16. The court instructs you, gentlemen of the jury, that the employer must in all cases indemnify his employé for losses caused by the employer's want of ordinary care, and if plaintiff necessarily suffered loss and injury in direct consequence of his obedience to the directions of his employer, and if you believe from the evidence that the team, with which the said plaintiff in this case was untrustworthy and unsafe as alleged in plaintiff's com-. plaint, and if you believe from the evidence that the proximate cause of plaintiff's injury, if any he received, was caused by the unsafeplaintiff, and he is entitled to recover in this ness of said team, then you should find for the action, yet the amount for which you may find must not exceed the amount prayed for in the complaint." In the case of Davis v. Forbes, 171 Mass. 548, 51 N. E. 20 (also reported 47 L R. A. 170), the court holds that an employer is not liable for injuries resulting from failing to promptly furnish medical attendance to one injured in his employment, even though he is responsible for the original injury, and the Instruction No. 10 is erroneous, in that it court sustained the ruling of the lower court instructed the jury that the plaintiff was "enin not allowing any recovery upon a count titled to recover in this action," irrespective in the complaint "for failure to furnish suit- of alleged fault on the part of the defendant. able medical attendance to plaintiff after the And the giving of instruction No. 16 was injury, although plaintiff was unable by rea- error, in that it directed the jury that they son of his injuries to secure it for himself, "should find for the plaintiff, and he is enand that, although knowing that plaintiff was titled to recover in this action" irrespective suffering great pain and was in need of im- of whether or not the defendant knew or had mediate surgical attention, defendant's serv-knowledge of the alleged fact that the team ants wrongfully permitted plaintiff to remain "was untrustworthy and unsafe as alleged in for a period of 37 hours without such assist- plaintiff's complaint." ance, by reason of which he alleged that he suffered great pain and permanent injury." See, also, Denver & R. G. R. Co. v. Iles, 25 Colo. 19, 53 Pac. 222. This instruction was particularly prejudicial in this case, and must have influenced the jury to mulet the defendant in damages, because the plaintiff testified in detail to the effect that after his injury he was furnished no medicine and no attention, and after a couple of days "I told Mr. Soares I wanted to come in town and see a doctor. He did not say anything. He never gave me an answer, and he drove to town, and I did not know it. Soares came again in a day or two, and he brought me a bottle (of liniment) and I put that on-they provided no nurse or any accommodations. They did not even bring me a cup of water. I had to crawl on a chair As stated in the case of Haneman v. Western Meat Co., 8 Cal. App. 698, 97 Pac. 695: "If it be conceded that the horse was vicious, yet the gist of the action against defendant was keeping the horse with knowledge by the defendant of his vicious propensity. The common law makes the owner of vicious domestic animals with notice of their vicious propensities responsible, for the reason that under such circumstances it is the duty of the owner to anticipate that such animals will commit such vicious acts as opportunity affords, and it is the duty of the owner to guard against such acts." [4] Instruction 22, as follows, should not have been given, for the reason that it takes from the jury the decision of questions in fact, and instructs the jury to draw conclusions from presumptions imposed by the "The court instructs you, gentlemen of the jury, that to render defendants liable to plaintiff in damages, it is not necessary that they should have had actual knowledge of the unsafeness of the team used by plaintiff; the proof is sufficiently made out by plaintiff when it is shown that the said team and appliance was defective and unsafe in such respect that if a proper inspection of it had been made by defendant, such unsafeness and defectiveness would have been ascertained in time to prevent the injury. If the unsafeness was conspicuous, defendants will be presumed to have had knowledge of it." [5] Defendant assigns as error the giving of instructions Nos. 23 and 24, requested by plaintiff, and also assigns as error the refusal by the court to give instructions Nos. 6 and 7, requested by defendant. Each of these instructions relates to the question of assumption of risk; and, as the case must be remanded to the trial court for a new trial, it will be necessary to consider to what extent the doctrine of assumed risk is applicable in the case at bar. little nervous at times. A. I took his word for it. "Q. You did not believe that you were assuming any risk that a prudent man would not at that time, did you? A. No, sir. "Q. In continuing to work with that horse you relied absolutely on the assertion made by Mr. Soares as to the reliability of the horse, did you not? A. Yes, sir." The trial court, upon a new trial of this case, will therefore be directly confronted with the question of whether assumption of risk can be invoked as a defense in this case. At the trial and in their briefs each side in this case seems to have relied upon section 1970 of the Civil Code, as amended in 1907, for a statement of the law in regard to assumption of risk. But in July of 1916, in the case of Lassen v. S. P. Co., 173 Cal. 72, 159 Pac. 143, which arose out of an accident in August of 1912, our Supreme Court held as follows: "At the time of the injury complained of the Employers' Liability Act of 1911 was in force. Stats. 1911, p. 796. That statute abolished the previously available defenses of an employer, in an action by an employé for damages from personal injuries, that the plaintiff had assum Furthermore, defendant's motion for nonsuit also invokes the defense of assumption of risk. And plaintiff, in his complaint, anticipating assumption of risk as a defense, seeks to meet and combat this defense by al-ed the risk of the hazard from which he was leging as follows: "That upon the commencement of said work this plaintiff ascertained by the actions of one of the horses of said team was treacherous and tricky, and that it was necessary for said plaintiff in the course of said employment in hitching up and unhitching said team to tie the said horse to a post or other safe place in order to safely handle such horse, and said team, and thereupon said plaintiff notified said Frank Soares that said team was not trustworthy, and was untrustworthy by reason of the fact that said horse was vicious, and would kick and would at every opportunity attempt to run away, and requested of said Frank Soares to furnish said plaintiff with a trustworthy and reliable horse in place and stead of said vicious horse, and thereupon said Frank Soares informed plaintiff that said horse was merely slightly nervous, and would within a day or two become quiet and trustworthy, and refused to furnish said plaintiff with a gentle horse in place and stead of said vicious horse. "That said plaintiff continued to work said horse as a part of said four-horse team in the course of his said employment up to and until the 19th day of October, 1916, during all of which said time said horse acted viciously and untrustworthy, and it was necessary for plaintiff to and he did watch said horse at all times during his said employment." And in order to further support this defense, plaintiff, at the trial, without objection on the part of the defendant as to its immateriality so far as the complaint was concerned, testified as follows: "Q. You did not believe that that horse would do anything after you received the instructions that you had from Mr. Soares except to act a injured, and that the injury was caused by the negligence of a fellow servant. Consequently, the case must be decided upon the principle that the employer was responsible for the negligence of his employés when such negligence caused injury to another of his employés, and for all injuries caused by dangers arising from the work itself or from the place where it is carried on. That statute also provided that contributory negligence of the employé should not bar his recovery if it was slight and that of the employer or fellow servant was gross, in comparison, and that in such cases the jury may diminish the damages according to the proportion of negligence chargeable to the employé." To the same effect is the case of Terry v. S. P. Co., 34 Cal. App. 330, at page 333, 169 Pac. 86, at page 87, where the court says: "The alleged injuries suffered by the plaintiff were caused on the 14th day of June, 1913, at which time the statute of this state denied to a defendant a defense based upon any alleged assumption of risk by its employé, and also provided that the contributory negligence of an employé 'shall not bar a recovery therein where his contributory negligence was slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employé. Stats. 1911, p. 796." In the case of Reynolds v. E. Clemens Horst Co., 35 Cal. App. 711, 170 Pac. 1082, where the accident to the employé, as shown by the record, occurred in 1913, this court used the following language: "But, after all, this contention of appellant resolves itself into the legal proposition that she assumed the risk of a known hazard, but I tion 1 as to all defenses which are mentioned this fact, as pointed out in Crabbe v. Mammoth Channel Gold Min. Co., 168 Cal. 500, 143 Pac. 714, and other cases, affords no defense under the Employers' Liability Act (Stats. 1911, p. 796), in effect at the time of the accident." In that case, however, "the case was tried upon the theory that the so-called Roseberry Act of 1911 and section 1970 of the Civil Code were and are applicable to the cause." And the argument was not presented that section 1970 was repealed by the Roseberry Act. In the case of Crabbe v. Mammoth Channel Gold Min. Co., 168 Cal. 500, at page 504, 143 Pac. 714, at page 715, where the "injury which resulted in Crabbe's death befell him on the 13th day of September, 1911, when the Employers' Liability Act was in force," our Supreme Court, speaking through Mr. Justice Henshaw, states as follows: "But even if it be said that the station as used by Crabbe) was in an unsafe condition, and that he knew it, this amounts to no more than a declaration that Crabbe assumed the risk of a known hazard. But this fact, by the very terms of the Employers' Liability Act, no longer affords the employer a defense. Employers' Liability Act, § 1, subd. 1." Also, in the case of Perry v. Angelus Hospital Association, 172 Cal. 311, at page 314, 156 Pac. 449, at page 450, our Supreme Court used the following language: therein, including the defense of assumption of As already noted, the accident in this case occurred in October of 1916. The present Employers' Liability Act went into effect January, 1914. By its express terms it excludes from the benefit of its provisions "any employé engaged in farm, dairy, agricultural, viticultural or horticultural labor, in stock or poultry raising, or any household domestic service." The act also provides that "all acts or parts of acts inconsistent with this act are hereby repealed." Now, it is true that this court, in the case of Reynolds v. E. Clemens Horst Co., 35 Cal. App. at page 722, 170 Pac. at page 1087, uses the following language in referring to this "In this connection it should be noted that at the time of the accident the Employers' Lia-act: bility Act of 1911 (Stats. 1911, p. 796) was in force, providing that the fact that the employé had assumed the risks of danger from the employment should be no defense in such cases, and that the contributory negligence of the employé should not bar a recovery where his negligence was slight and that of the employer gross, in comparison." Also, in the case of Hughes v. Warman Steel Casting Co., 174 Cal. 556, at page 565, 163 Pac. 885, at page 889, our Supreme Court uses the following language: "The said act of 1913 was intended to present and embody a complete scheme for the enforcement of a cause of action like that before us, and it is apparent that all prior legislation on the subject is inconsistent with the provisions of said act." But, as above noted, this act of 1913, now in force, does not present or embody any scheme for the enforcement of a cause of action like that before us in the present case. In fact, a cause of action like that before us now is expressly excluded from the provisions of this act. Furthermore, the act specifically provides (see section 12, division "c" of subd. 3, Stats. 1915, p. 1081) that "in all other cases where the conditions of compensation do not concur, the liability of the employer shall be the same as if this act had not been passed." Therefore, since the conditions of compensation referred to in the act do not concur to affect the plaintiff herein, since he is a farm laborer, it follows that the liability of the defendant employer herein "shall be the same as if this act had not been passed." Also, since section 1 of the Roseberry Act lays down rules of substantive law finally govern "When the injury to plaintiff occurred on April 9. 1913, the Employers' Liability Act of 1911 (Stats. 1911, p. 796) was in force. Section 1 of that act provided (stating only its terms pertinent here) that in any action for personal injury sustained by an employé in the course of his employment in which recovery is sought on the ground of want of ordinary or reasonable care on the part of the employer, it shall be no defense that the employé either expressly or impliedly assumed the risk of the hazard complained of. The court in harmony with these provisions of the act instructed the jury that under said Employers' Liability Act, the defense of assumption of risk or hazards of the work did not apply; that it was no bar to recovery on account of injury caused by the use of unsafe tools or appliances that plaintiffing all classes of employés, it can be inconmerely with knowledge of their lack of safety sistent with and repealed by the present act The only to the extent that the present act inaccepted or continued the employment. provisions of the Employers' Liability Act war- cludes, and does not exclude, such classes of herein cannot be permitted to urge as a de-a judgment for defendants, and from an orfense that the plaintiff, either expressly or der denying plaintiff's motion for new trial, impliedly, assumed the risk of the hazard he appeals. Judgment and order affirmed. complained of. In this connection it may be noted that the case of Barrett v. Cont. Co., 172 Cal. 116, 155 Pac. 645, referred to by this court in the recent case of Fererira v. Silvey, 176 Pac. 371, was not a case involving the relation of employer and employé, and no question was raised therein concerning any Employers' Liability Act. In fact, the relation of employer and employé did not exist between the plaintiff and defendant; the plaintiff being in the employ of the city. The court, therefore, did not err in refusing to give instructions 6 and 7, requested by defendant, to the extent that said instructions recognize the defense of assumption of risk in this case; and, for the same reason, the court did not err in refusing to grant defendant's motion for a nonsuit. Also, it was error, though not prejudicial to the defendant, to give instructions 23 and 24, which were given upon the theory that assumption of risk was a defense in this action. But, for the reasons already given, the judgment is reversed and cause remanded for a new trial. We concur: BURNETT, J.; HART, J. Tyrrell, Abrahams & Brown and Chas. W. Fricke, all of Los Angeles, for appellant. Strong, McCormick & Green, of Los Angeles, and Strong & McCormick, for respondents. issued in an action wherein F. W. Cole was SHAW, J. Under a writ of attachment, plaintiff and G. G. Gillette was defendant, W. A. Hammel, as sheriff, levied upon and to which the plaintiff claimed was vested in took possession of a certain automobile, title Gillette. Thereupon plaintiff in this action filed a third party claim with the sheriff and demanded delivery of possession of the for conversion followed, and judgment was property, which was refused. This action entered in accordance with the verdict of a jury in favor of defendants. The appeal is denying plaintiff's motion for a new trial. from the judgment and an order of court The sole contention of appellant, which he presents without incorporating in the record the instructions given the jury, is that the verdict is not justified by the evidence; hence it is said the court should have granted his motion for a new trial. The evidence, in which there is some conflict, tended to show that on October 5, 1912, a conditional sale contract was made by the California Motor Company to Gillette, under which it, reserving the title to the car subject to the making of certain deferred payments thereon, (District Court of Appeal, Second District,. Di- when title was to vest in the vendee, devision 1, California. Feb. 19, 1919. Re-livered possession thereof to Gillette. On hearing Denied by Supreme Court April 18, 1919.) ABRAHAMS v. HAMMEL, Sheriff, et al. (Civ. 2620.) 1. APPEAL AND ERROR October 24th following, Gillette sold the car and, with the consent of the motor company, 928(2)-PRESUMP-purchaser, who assumed the payments speciassigned the contract to J. A. Phillips as TION AS TO PROPER INSTRUCTIONS GIVEN. Where contrary is not shown, the appellate court may assume proper instructions were given. 2. FRAUDULENT made the payments in compliance with the fied therein. On March 15, 1913, Phillips contract and received a bill of sale and receipt in full therefor, at which time he, withCONVEYANCES 147(4) CONDITIONAL SALES-ASSIGNMENT OF CON- made an arrangement with Gillette whereby out having taken the car into his possession, TRACT-POSSESSION OF GOODS. Where the purchaser of an automobile on Thereafter, on August 19, 1913, Phillips exethe latter was to retain possession thereof. conditional sale assigned the contract, and the assignee received a bill of sale, but without tak-cuted a lease of the car to Gillette's wife, ing the car into his possession released to the but, in so far as disclosed by the evidence, original purchaser's wife, and the assignee aft- she neved acquired or took possession thereerwards transferred his interest to plaintiff, who of, but the same continued in Gillette. On without obtaining possession gave such wife an July 31, 1914, Phillips executed a bill of sale option to purchase, such transfers are invalid transferring his interest in the automobile under Civ. Code, § 3440, creating a presump- to plaintiff, who at the time, without obtaintion of fraud in sales without immediate deliv- ing possession thereof from Gillette, gave ery and continued change of possession. Mrs. Gillette an option to purchase the car, which option, however, she never exercised. Appeal from Superior Court, Los Angeles County; Paul J. McCormick, Judge. [1] It is alleged in the answer that all these transfers affecting the interest of GilAction for conversion by A. L. Abrahams lette in said car were made fraudulently, against W. A. Hammel and another. From without consideration, and with intent to hinFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |