Opinion
Page __
__ Cal.App.2d __ 216 P.2d 53 BROKAW v. BLACK-FOXE MILITARY INSTITUTE et al. BROKAW et al. v. BLACK-FOXE MILITARY INSTITUTE et al. Civ. 17117. California Court of Appeals, Second District, Third Division March 14, 1950.Subsequent opinion 231 P.2d 816.
[216 P.2d 55] Tripp & Callaway, Los Angeles, for appellant.
Robert J. Sullivan, and Lewis L. Clarke, Jr., Los Angeles, for respondents.
VALLEE, Justice.
Appeal by defendant Hollywood Commercial Buildings, Incorporated, doing business as Black-Foxe Military Institute, from a judgment for plaintiff, Robert Brokaw, in two consolidated actions for damages for personal injuries.
One action is predicated on alleged negligence of appellant in permitting respondent, a minor in the custody of appellant, to leave the campus of Black-Foxe Military Institute, a military school conducted by appellant, contrary to instructions of his parent. The complaint in this action alleged that the defendants 'so negligently, carelessly and without regard for the safety of plaintiff Robert Brokaw and without the consent or permission of his parent, Martha Mears Brokaw, the defendants and each of them, contrary to their customs and rules and against the wishes of Robert Brokaw's parent, Martha Mears Brokaw, permitted or allowed the plaintiff Robert Brokaw to leave or be absent from the campus or school grounds of the Black-Foxe Military Institute; that as a direct and proximate result of the aforesaid plaintiff Robert Brokaw was involved in an automobile accident and received serious and permanent personal injuries.' The other action is predicated on alleged negligence of appellant in driving an automobile in which it is alleged respondent was a paying passenger.
Black-Foxe Military Institute is a private military school for boys conducted by appellant in Los Angeles. Robert Brokaw, twelve years of age, was enrolled in the school in September, 1946, for the term 1946-1947 as a paying boarding student. He had attended two prior years. The Institute's 'Cadet Handbook' provided that 'Authority for absence must originate with the parent or guardian and such authority must be directed to the Commandant in the form of a written excuse.' Whenever instructions were received from a parent, very careful notes were taken with reference to those instructions and everyone on the staff who was concerned was informed in detail concerning those instructions. At the time Robert was first registered at the school his mother advised the school authorities that he was not to leave the school grounds unless under the supervision of the officers of the school or with a Mr. and Mrs. Frankel or a Mr. and Mrs. Hicks.
On February 15, 1947, a Saturday, Elvin E. Martin, one of the defendants, a young man under twenty-one years of age who was attending college and at the same time acting as a part-time employee of appellant, while off duty, returned to the school in his father's automobile to pick up some of his personal belongings. One of Martin's duties was to take the students on trips on certain Saturdays. While at the school [216 P.2d 56] he observed Robert and several other students and asked them why they had not gone on appellant's regular week-end excursion to Long Beach. Being informed that they lacked spending money, he offered to take them in his father's automobile to his mothers' home in Whittier where his mother would prepare lunch for them, and from there to Long Beach to visit the amusement pike. Martin also offered to lend the boys spending money from his personal funds. Accepting Martin's offer, the students, including Robert, went with Martin to the office of Lt. Redmond, the officer of the Institute in charge, and asked Redmond for permission to leave the premises to go to Whittier and Long Beach with Martin in Martin's automobile. Redmond granted them permission on condition that Martin return the students to the Institute before 8:30 p. m. Redmond was the only person who had authority to permit the students to leave the Institute's premises.
The students left the premises in Martin's father's automobile, Martin driving. On the way to the home of Martin's mother, Martin's automobile collided with the rear end of a truck and Robert was severely injured.
The cause was tried by a jury. Motions of Hollywood Commercial Buildings, Incorporated, for a judgment of nonsuit and for a directed verdict were denied. A special interrogatory was submitted to the jury, asking 'was defendant, Elvin E. Martin, at the time and place of the accident here involved, acting as the agent of the defendant, Black Fox Military Institute, and also in the course and scope of his authority at said time?' The jury answered, 'Yes.' A consolidated verdict was rendered in favor of Robert and against Hollywood Commercial Buildings, Incorporated. No verdict was rendered either for or against Martin. From the judgment which followed, Hollywood Commercial Buildings, Incorporated, appeals.
Appellant's specifications of error are: 1. No negligence was established as against appellant. 2. The act of granting permission to minor respondent to leave the grounds of the military institute was not the proximate cause of his injuries. 3. The court erred in denying appellant's motions for a judgment of nonsuit and for a directed verdict because there was no evidence that Martin was the agent of appellant acting within the course and scope of his employment.
The contention that it was not established that appellant was negligent is without merit. It is argued that to constitute an actionable tort there must be a duty owing by the defendant to the one injured and that appellant owed no duty to respondent. The rules of the school provided that authority for absence must originate with the parent. Pursuant thereto the parent gave the school authorities definite and specific instructions that Robert was not to be permitted to leave the premises of the Institute except under the supervision of one of the officers of the school or certain other designated persons. A contract was thereby made by which appellant agreed that it would not permit Robert to leave the premises of the Institute except on the conditions statuted. Hitchcock Military Academy v. Myers, 76 Cal.App. 473, 476, 245 P. 219.
An obligation is defined as 'a legal duty, by which a person is bound to do or not to do a certain thing', Civ.Code, sec. 1427, and may arise either 'from the contract of the parties or the operation of law.' Civ.Code, sec. 1428. It is elementary that the same wrong may be both a breach of contract and a tort. The existence of a contract with one party may furnish the occasion for a tort obligation to another. A contract promise may itself be the instrument by which a tort is committed. Prosser on Torts, p. 201, sec. 33. Accompanying every contract is a common law duty to perform the thing agreed to be done with care and faithfulness, and a negligent failure to observe these conditions is a tort. Oklahoma Natural Gas Co. v. Pack, 186 Okl. 330, 97 P.2d 768; Conn v. Hunsberger, 224 Pa. 154, 73 A. 324, 25 L.R.A.,N.S., 372, 132 Am.St.Rep. 770, 16 Ann.Cas. 504; Flint & Walling Mfg. Co. v. Seckett, 167 Ind. 491, 79 N.E. 503, 12 L.R.A.,N.S. 924; Anno. 12 L.R.A.,N.S., 924. '[W]henever there is a contract and something to be done in the course of the [216 P.2d 57] employment which is the subject of that contract, if there be a breach of duty in the course of the employment, the persons injured by the breach may recover damages in tort.' Loup v. California Southern R. Co., 63 Cal. 97, 99; Fisher v. Pennington, 116 Cal.App. 248, 251, 2 P.2d 518; Green v. Hanson, 103 Cal.App. 430, 432, 284 P. 1082; Williamson v. Pacific Greyhound Lines, 67 Cal.App.2d 250, 253, 153 P.2d 990. Injuries to passengers on carriers are familiar examples of the application of these principles. 4 Cal.Jur. 979, sec. 118; see also Harding v. Liberty Hospital Corp., 177 Cal. 520, 522, 171 P. 98, and cases there reviewed. The contract that respondent was not to be permitted to leave the premises of the Institute except under the supervision of an officer of the school or the other designated persons, imposed the duty on appellant not to permit him to leave under any other circumstances. The contract made by appellant with respondent's parent implied that appellant would exercise ordinary care and diligence to see that respondent did not leave the school premises except on the conditions prescribed. Cf. 56 C.J. 173, sec. 24.
Irrespective of contract, if the relationship of the parties is such that a duty to take due care arises therefrom, and the party upon whom the duty rests is negligent, an action for tort lies. Atlantic & Pacific R. Co. v. Laird, 164 U.S. 393, 17 S.Ct. 120, 41 L.Ed. 485; Warfield Natural Gas Co. v. Clark's Adm'x, 257 Ky. 724, 79 S.W.2d 21, 97 A.L.R. 971. One of the duties of parents to their children is to shield and protect them from injury. One who stands to a child in loco parentis has the same duty and is bound to use reasonable care to shield and protect such child from injury. Satariano v. Sleight, 54 Cal.App.2d 278, 284, 129 P.2d 35; Buelke v. Levenstadt, 190 Cal. 684, 687, 214 P. 42; Cashen v. Riney, 239 Ky. 779, 40 S.W.2d 339, 341; Burnett v. Allen, 114 Fla. 489, 154 So. 515, 518; 38 Am.Jur. 686, sec. 40; Anno. 27 A.L.R. 1018. Appellant stood in the relation of loco parentis to respondent. 56 C.J. 852, sec. 1088; 47 Am.Jur. 426, sec. 173.
'One who * * * voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty of exercising reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor (a) knows or has reason to know that he has the ability to control the conduct of the third persons, and (b) knows or should know of the necessity and opportunity for exercising such control. Comment: a. The rule stated in this Section is applicable to * * * a private school.' Restatement, Torts, sec. 320. Negligent conduct may be 'a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do.' Restatement, Torts, sec. 284.
In the light of these principles, it cannot be said, as a matter of law, that appellant was not negligent in permitting respondent to leave the premises of the Institute.
The next contention is that the negligence of appellant, if the evidence warranted a finding of negligence, was not 'the' proximate cause of injury. 'A consequence which follows directly either from the defendant's act or from a foreseeably caused intervening act is proximate.' Carpenter, Proximate Cause, 16 So.Cal.L.Rev. 18. An intervening cause is one which actively operates in producing harm to another after the actor's negligent act or omission has been committed. Restatement, Torts, sec. 441.
'The following rules from the Restatement of Torts with respect to proximate causation have been approved in California (Mosley v. Arden Farms Co., 26 Cal.2d 213, 219, 157 P.2d 372, 158 A.L.R. 872; Stasulat v. Pacific Gas & Electric Co., 8 Cal.2d 631, 637, 67 P.2d 678), and are applicable in the present situation:
'Section 447--'The fact that an intervening act of a third person is negligent [216 P.2d 58] in itself or is done in a negligent manner does not make it a superseding cause of harm to another with the actor's negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act.'
'Section 449--'If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.'
'Section 453, Comment (a): 'If the facts are undisputed, it is usually the duty of the court to apply to them any rule which determines the existence or extent of the negligent actor's liability. If, however, the negligent character of the third person's intervening act or the reasonable foreseeability of its being done is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.' (Italics added.)' McEvoy v. American Pool Corp., 32 Cal.2d 295, 298, 195 P.2d 783, 786. Appellant's negligence need not have been the sole cause of the injury; it is enough if it was a proximate cause. McEvoy v. American Pool Corp., 32 Cal.2d 295, 298, 195 P.2d 783; Westover v. City of Los Angeles, 20 Cal.2d 635, 639, 128 P.2d 350; Goehring v. Rogers, 67 Cal.App. 253, 259, 227 P. 687, opinion of Supreme Court on denial of hearing.
In view of these rules we cannot say, as a matter of law, that appellant is relieved from liability for negligence by the intervening conduct of Martin or the driver of the truck with which he collided. Appellant cannot escape responsibility for its failure to perform its duty merely because of intervening acts, the likelihood of which it reasonably should have foreseen. The jury could have found, in view of the frequency of automobile accidents, that appellant should have foreseen that either Martin or a third person might cause the type of accident which occurred. McEvoy v. American Pool Corp., 32 Cal.2d 295, 299, 195 P.2d 783; Bunch v. Eason, 95 Cal.App.2d 845, 214 P.2d 28.
Whether Martin was or was not the agent of appellant is immaterial. In the action predicated on appellant's negligence in permitting respondent to leave the premises of the Institute respondent did not seek to impose liability under the doctrine of respondent superior. Appellant was held liable, not for the act or omission of Martin, but for its own act. The implied finding of the jury was that appellant's act in permitting respondent to leave the premises of the Institute in Martin's automobile set in operation the active force which directly caused respondent's injuries; and that appellant's wrongdoing continued active until the happening of the accident. See Maberto v. Wolfe, 106 Cal.App. 202, 206, 289 P. 218; Waltemath v. Western States Realty Co., 9 Cal.App.2d 583, 585-586, 50 P.2d 451; Barsoom v. City of Reedley, 38 Cal.App.2d 413, 420, 101 P.2d 743.
Affirmed.
WOOD, J., concurs.
SHINN, Presiding, Justice.
I dissent. The action was for negligence and not for breach of contract. Appellant throughout has conceded it was under a duty to exercise ordinary care. All the evidence of conversations between plaintiff's mother and the school authorities at the time plaintiff was enrolled, with respect to the conditions under which he might leave the school grounds, was irrelevant and confusing to the jury.
We must answer the question, 'Wherein was appellant negligent?' The main opinion does not furnish an answer to this question. The jury's implied finding of negligence is accepted as conclusive. It is not conclusive, and should not be allowed to stand, unless it is supported by substantial evidence. It has no support in the evidence.
[216 P.2d 59] For approximately a year Martin had been a part time employee of appellant, one of his duties being to take boys on automobile trips, although he was not acting within the scope of his employment in taking plaintiff for a ride in his own car on the day of the accident. It is not questioned that he was an experienced and careful driver.
The holding of the main opinion is that anyone who rides or allows a boy to ride in an automobile with a competent and careful driver is thereby guilty of negligence. That is the entire case so far as negligence is concerned.
In my opinion the jury's implied finding of negligence is unsupportable in law or reason. The judgment rests upon that finding and should be reversed.