# Butigan v. Yellow Cab Co.

> California Supreme Court · January 28, 1958 · 49 Cal. 2d 652

URL: https://www.frixlaw.com/law-library/cases/9563693

## Case

- **Full name:** GEORGE BUTIGAN Et Al., Appellants, v. YELLOW CAB COMPANY (A Corporation) Et Al., Respondents
- **Court:** California Supreme Court
- **Decided:** January 28, 1958
- **Citations:** 49 Cal. 2d 652; 320 P.2d 500
- **Precedential status:** Published
- **Opinion:** Dissent by Schauer
- **Judges:** Gibson, Schauer, Spence, Shenk, Carter, Traynor, McComb
- **Cited by:** 179 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by Rodoni v. Hoskin, 138 Mont. 164 (1960).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9563693

## How later opinions describe it (automated extraction)

- noting that “[i]t is particularly significant that no decision in this state ... has held that refusal to give the instruction was reversible error” and noting cases where refusal to give instruction was not error because “the jury was fully instructed on the general rules of …

## Opinion text

SCHAUER, J.,
Dissenting.—Since at least as early as the year 1897 it has been consistently held that where defendants deny negligence on their part an instruction may properly *662 be given explaining to the jury “the well-settled rule of law that for inevitable accident occurring when one with due care is engaged in a lawful business, damages may not be recovered.” (Niosi v. Empire Steam Laundry (1897), 117 Cal. 257, 259, 261 [ 49 P. 185 ] [intersection accident] ; see also 35 Cal.Jur.2d 726, § 206, and cases there cited.) By the majority opinion in the present case we are now told that “In reality, the so-called defense of unavoidable accident has no legitimate place in our pleading,” 1 and "that “It appears to be an obsolete remnant from a time when damages for injuries to person or property directly caused by a voluntary act of the defendant could be recovered in an action of trespass and when strict liability would be imposed unless the defendant proved that the injury was caused through ‘inevitable accident.’ ” (P. 667.) It is my view that the test as to whether the instruction given in this case was error is not properly to be resolved as a question of pleading.
It is true that “unavoidable accident” is not ordinarily held to be an affirmative or special defense which must be pleaded as such. 2 It is, rather, a practical description or denomination of a set of circumstances which is characterized by the incurrence of injury through accidental means without the occurrence of actionable fault as a proximate cause. Inasmuch as the term is affirmatively, completely, and yet briefly, descriptive of that which has actually happened (the accident with ensuing injury, without actionable fault), it is easier to comprehend than is a negative qualification relating to the causes of that which has happened and leaving unsatisfied the groping of the mind for a positive concept consistent with the negative.
After extended consideration of the matter this court in Parker v. Womack (1951), 37 Cal.2d 116, 120-121 [3] [ 230 P.2d 823 ], reaffirmed the view theretofore expressed in Polk v. City of Los Angeles (1945), 26 Cal.2d 519, 542-543 [ 159 P.2d 931 ], that “. . . the so-called defense of inevitable accident is nothing more than a denial by defendant of negligence or a contention that his negligence, if any, was not the proximate cause of the injury.” (See also Scott v. Burke (1952), 39 Cal.2d 388, 401-402 [ 247 P.2d 313 ]; McMillen v. Southern Pac. *663 Co. (1956), 146 Cal.App.2d 216, 220-221 [ 303 P.2d 788 ].) Parker v. Womack further recognized (p. 122 of 37 Cal.2d that “a determination that an accident was unavoidable is also proper where the evidence merely shows ‘. . . that the plaintiff has failed in his proof.’ [Citation.] Where an instruction defining such an accident is given at the request of the defendant, it cannot be said to have been harmful to the plaintiff ‘who in any event had the burden of proving that the collision was occasioned solely by the negligence of the . . . [defendant] which, of course, would exclude unavoidable accident.’ [Citation.]”
After suggesting that the subject instruction “appears to be an obsolete remnant” and that it “serves no useful purpose,” the majority support their parvenu thesis with the further declaration (p. 669, majority opinion) that “The instruction is not only unnecessary, but it is also confusing.” I cannot agree that such declaration has either legal or factual verity. On the contrary the instruction will never be truly obsolete as long as the issue of negligence is presented to a jury, and equally that long will it in proper cases tend to clarify the jury’s task. The subject instruction clearly explains to the jury that the terms “unavoidable or inevitable accident ... do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence . . . Bear in mind . . . that if any defendant failed to exercise ordinary care, and if that failure was a proximate cause of the accident in question, then, whether or not such conduct was the sole cause, the accident was not unavoidable.” Does the impartial judicial mind actually find anything confusing or misleading, and prejudicial to justice, in the language of the quoted instruction or in its concept? Or does the penchant of the advocate subconsciously intrude and perceive, in effective clarification of issues and rules as to burden of proof, a hazard of diminution to his forensic persuasions of jurors? Persuasions perhaps otherwise based on appeals more emotional than factual or legal ?
The majority say further that “The rules concerning negligence and proximate causation which must be explained to the jury are in themselves complicated and difficult to understand,” and then add, “The further complication resulting from the unnecessary concept of unavoidability or inevitability and its problematic relation to negligence and proximate *664 cause can lead only to misunderstanding.’’ The first sentence of the majority’s above quoted statement is manifestly accurate. The assumptions and declarations of the second sentence appear to me to be totally unwarranted. The very purpose of the subject instruction is to simplify and explain the rules which the majority themselves label as “complicated and difficult to understand.” Being complicated and difficult to understand seems to me to brand them as needing simplifying and clarifying. The majority, I think, could better paraphrase their second sentence and say: “The further clarification resulting from explaining the concept of unavoidability or inevitability and its essential relation to [proof of] negligence and proximate cause can lead only to better understanding.”
In my view the rules concerning negligence and proximate causation which must be explained to the jurors are not so simple and easy to understand that better comprehension will not result from likewise relating to them, in different words, the concept of unavoidable accident, a concept which must be understood if the jurors in a proper case are to be able readily to recognize that case as calling for application of the concept. Such concept, as hereinabove mentioned, is recognized by this court to be legally " nothing more than a denial by defendant of negligence or a contention that his negligence, if any, was not the proximate cause of the injury” (Parker v. Womack (1951), supra, 37 Cal.2d 116, 120-121 [3]), but it is easier for the layman—and perhaps for lawyers and judges, as well—to comprehend if it is expressed in affirmative rather than negative terms. It is a concept which, if fairness to defendant as well as plaintiff is to be preserved, becomes more and more important to have presented to the jury as the court continues to more and more extend the scope of situations in which the res ipsa loquitur instruction is given. And the importance (for fairness) of giving it becomes even more emphasized as the court moves toward holding that proof of the mere happening of an accident, without more, is evidence of negligence. (See e.g., Barrera v. De La Torre (1957), 48 Cal.2d 166, 170 , and in dissent, 176-178 [ 308 P.2d 724 ]. If it is error to instruct the jury that “The mere fact that an accident happened, considered alone, does not give rise to a legal inference that it was caused by negligence or that any party to this accident was negligent” (italics added), then it would seem rationally to follow that the instruction would not be erroneous if the word “not” were deleted and the word “some” were substituted for the word “any”) Is this, *665 perhaps, the concept toward which the majority are working? If we assume such view then it would follow that the concept of “unavoidable” accident will have become “obsolete.”
Certainly the subject concept does not inject into the case any new or additional issue to be determined by the jury. It merely helps them comprehend the real issues they must (at least under heretofore accepted rules) resolve before they reach a verdict. If the jurors obtain the impression that the concept of unavoidable or inevitable accident is material to the case, then, under the language of this court quoted hereinabove from Parker v. Womack , now being overruled, they have nothing more than the impression that they must determine the issues of negligence and of proximate cause.
Moreover,- the majority in recognizing, as they have been compelled to do, that in section 602 of the Vehicle Code 3 the Legislature has for California accepted the concept of unavoidable accident as a defense to actions grounded on asserted violations of that section, find themselves in this anomalous position: They concede that “There are [special] situations where it may be necessary to explain the meaning of the words ‘unavoidable accident,’ ” but defend their incongruous theme (that the concept is obsolete and confusing) by the bare declaration that “The definition of the words ... as used in section 602 would not involve any of the problems which arise in connection with the challenged instruction.” What problems arise in connection with the challenged instruction which would not be involved in a definition under section 602? Or in the case of some other as yet unidentified “special situation”? Do the majority not presume that the Legislature used the words with knowledge of their legally established meaning and application? The language and the concept, as hereinabove shown, have appeared in the decisions of this court since a time preceding the start of the current century. The Legislature has recognized the language and the concept for many years (see e.g., Stats. 1933, ch. 801, p. 2128) and has amended the vehicle act repeatedly, and as recently as 1957 (see Stats. 1957, ch. 1417, p. 2750), without ever suggesting disapproval or amendment of the concept as defined by this court. “It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge *666 of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them. ” (Buckley v. Chadwick (1955), 45 Cal.2d 183, 200 [14] [ 288 P.2d 12 , 289 P.2d 242 ].) Also “The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.” (Cole v. Rush (1955), 45 Cal.2d 345, 355 [9] [ 289 P.2d 450 ].) Are the majority accusing the Legislature of enacting, amending, and adhering to legislation which encompasses an “obsolete” and “confusing” concept? When a plaintiff sues for an injury claiming negligence through asserted violation of section 602, subdivisions (a) or (b) (driving more than the lawful span of consecutive hours transporting (a) persons or (b) freight) must the trial judge hold that the defendant driver may neither plead, nor have an instruction state and define, the defense of unavoidable accident specifically authorized in subdivision (d)? What new definition would the majority suggest as being appropriate to legislative intent, or to other “special situation”? How could any such new definition be less confusing, or more clearly explanatory, than the definition presented to the jury in the present case? How can the concept of unavoidable accident thus welded by the Legislature into section 602 be justifiably held to be confusing and immaterial here? In my view, the distinction, refinement, and limitation attempted by the majority is more likely to be a true source of confusion, and to serve to mislead both courts and attorneys in their efforts to effectuate fair and correct instruction of juries.
It may further be noted that the defense of unavoidable or inevitable accident embraces an act of God. (See 35 Cal. Jur.2d 488-489, 1 id. 719; 1 C.J.S. 443-444; id. 1423, et seq., and authorities respectively there cited.) Are the courts now to be forbidden to instruct juries as to the legal effect on the rights of the parties of an accident resulting from such an act of God? Or will this perchance be viewed by the majority as a “special situation”?
I believe that in accord with what has heretofore been declared to be the law, and recognized to be the fact, no confusion resulted and no error occurred in giving the instruction on unavoidable accident, the instruction which is now fashioned into the peg on which reversal of the judgment is hung. I find utterly unpersuasive the implicit declaration of the *667 majority (essential to reversal) that plaintiff was thereby prejudiced in rights the law gives her, and that “after an examination of the entire cause, including the evidence, the court [is] ... of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 4½.)
I find no miscarriage of justice and, for the reasons stated, would affirm the judgment.
McComb, J., concurred.
Italics added.
As hereinafter noted, however, it is by statute in California specifically made a defense in actions based on asserted violations of section 602 of the Vehicle Code, and it would seem entirely proper to plead it as such.
Section 602 provides limitations on driving hours for certain persons, as well as penalties for violations, but also specifies, in subdivision (d), that “This section does not apply in any case of casualty or unavoidable accident or an act of God.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9563693. Public record. Not legal advice.