Opinion
Rehearing Denied March 21, 1930
Hearing Granted by Supreme Court April 17, 1930
Appeal from Superior Court, Fresno County; S.L. Strother, Judge.
Action by Betty Krause and another, minors, by their guardian ad litem, Lena Krause, and another, against John W. Rarity and another. Judgment for plaintiffs, and defendants appeal
Affirmed.
Superseding opinion in 283 P. 886. COUNSEL
Leo J. McEnerney, of San Francisco, and Ray W. Hays, of Fresno, for appellant Rarity.
Robert Brennan, M.W. Reed, E.T. Lucey, Leo E. Sievert, and H.K. Lockwood, all of Los Angeles, for appellant Atchison, Topeka & Santa Fé Railway Company.
H.A. Frank, of Oakland, for respondents.
OPINION
PRESTON, Justice pro tem.
Appellant Rarity, in his petition for a rehearing in this court, makes the contention for the first time that the cause of action upon which plaintiffs recovered judgment was abated by the enactment of section 141¾ of the California Vehicle Act, which became effective on August 14, 1929. To enable us to consider that question a rehearing was granted. On the other issues involved our original opinion filed December 26, 1929 (283 P. 886), is adopted as the decision of this court, which reads as follows:
This is an appeal by the defendants John W. Rarity and the Atchison, Topeka & Santa Fé Railway Company, a corporation, from a judgment entered against them upon a verdict of a jury in the sum of $35,000. Plaintiffs are the wife and two minor children, who are the sole heirs, of William Krause, deceased, and they brought this action, charging that William Krause’s death was due to negligence of the defendants John W. Rarity and the Atchison, Topeka & Santa Fé Railway Company.
On September 12, 1927, at about the hour of 6 o’clock p.m. said William Krause and one O.E. Orr were guests and passengers of the defendant John W. Rarity in his Jewett coach automobile. Rarity was driving said automobile in a westerly direction along a public highway in Fresno county known as "Central Avenue," which is a rural highway, paved and practically level. Across said highway the appellant Atchison, Topeka & Santa Fé Railway Company owned and operated a railroad track and railroad, extending in a northerly and southerly direction, and known as "Mattie Spur." The country surrounding the place where the collision occurred is practically level. The railway track was about one foot lower than the paved highway. At the time of the accident there was a ditch about 3 feet high on the north side of Central avenue and parallel thereto. Upon this bank there was at the time a growth of foliage, which varied in height from 1 to 5 feet. For a quarter of a mile immediately east of the railway there was at the time of the accident a grape vineyard. The rows in this vineyard, which extended in an easterly direction, were about 6 feet high and the vines were in full foliage.
About 12 or 14 feet east of the railway tracks, and about 12 feet north of the highway, there was a standard railroad crossing sign. It consists of an upright post, approximately 10 feet high, painted white, and at the top of which are two crossarms, painted white, with the words "Railroad Crossing" in large black letters thereon. About 300 feet east of the railroad and 20 feet north of the highway there was a smaller sign, a target sign, consisting of an upright post 6 feet high, at the top of which is a metal disc about two feet in diameter, with the letters "RR" in black on a white background. One of the witnesses testified that this sign, at the time of the accident, was hidden by weeds. There was, at the time of the accident, one tree on the north line of the highway, about 70 feet east of the track. This tree stands 20 feet high and is approximately 12 feet across the spread of its branches. On the south line of the highway, east of the tracks, was a row of olive trees that came within about 28 feet of the railroad tracks.
As said automobile was attempting to cross said spur track it was struck by a locomotive of the appellant Atchison, Topeka & Santa Fé Railway Company, and as a result of said collision the said William Krause received injuries from which he died almost instantly.
Plaintiffs allege that the death of William Krause was caused by the negligence and careless operation and handling of the automobile by defendant John W. Rarity, and contributory thereto and concurrent therewith the negligence and carelessness of defendant Atchison, Topeka & Santa Fé Railway Company in so operating and conducting its locomotive as to drive the same toward and upon said highway crossing without giving or sounding any warning whatsoever of the approach thereof, either by sounding a whistle, bell, or otherwise.
The defendants and appellants filed separate answers and have also prosecuted separate appeals.
The appellant railway company in its answer interposed a general denial, and further pleaded as an affirmative defense that the injuries to and death of said William Krause were contributed to and proximately caused by his own negligence in this: That at all times after said William Krause came within 300 feet of said crossing, the locomotive and train of defendant railway company, which was approaching said crossing, were plainly visible, and the noise of the train and engine were plainly audible to said William Krause, and that said William Krause did not look for any train that might be approaching upon defendant railway company’s track, and did not warn or caution the driver of said automobile that said automobile was approaching a railway track, and should be operated cautiously and under control, and did not listen for the noise of any train that might be approaching said crossing.
As a further and separate defense to said complaint said railway company alleged that the collision and injuries to and the death of said William Krause were contributed to and proximately caused by his own negligence in this: That he permitted the driver of said automobile to operate the same at a high rate of speed as the same approached the railway crossing and as said William Krause knew that said automobile was so approaching said crossing, and said William Krause so allowed the said automobile to be driven at a high and dangerous rate of speed to and upon the said crossing without cautioning or warning the driver of said machine to approach said crossing with his machine under control, with an opportunity to look for and listen for any train or engine that might be approaching said crossing.
The answer and defense of John W. Rarity was substantially as follows: That at the time of the collision he was operating his automobile with reasonable care and at a lawful and proper rate of speed; that he did not know of the existence of the railway track, or of the fact that a railway track crossed Central avenue; that he did not hear or see the locomotive until it was too late for him to avoid collision with it; that he did not know of the approach of the locomotive, because of the fact that no whistle was blown or bell rung, and because of the fact that the foliage upon the north side of Central avenue obscured the locomotive from his view; that he had only one eye, and that by reason thereof his vision was limited; that, because of the fact that the setting sun was directly in the line of his vision, he watched the highway directly ahead of him, and that because of the position of the sun he could not and did not see the railway sign; and that, as he was at that time driving in a rural district, he was driving at a lawful and proper rate of speed, to wit, 30 miles an hour. Appellant Rarity contended throughout the trial that, because of the conditions outlined, the burden was cast upon respondents to show that he was negligent in operating his automobile, under the circumstances shown by the evidence.
The appellant railway company first contends that the court erred in denying its motion for a nonsuit. In support of this contention it is argued, first, that deceased, William Krause, was guilty of contributory negligence as a matter of law; second, "the accident was solely and proximately caused by the negligence of defendant Rarity."
In considering whether or not the motion was properly denied, it is important to keep in mind the court’s power and limitations with reference to the granting of nonsuits. The motion admits the truth of plaintiffs’ evidence and every inference which can be legitimately drawn therefrom, and upon such motion the evidence should be interpreted most strongly against the party making the motion, which in the case at bar would be the appellant railway company. Stieglitz v. Settle, 175 Cal. 131, 165 P. 436; Goldstone v. Merchants Ice & Cold Storage Co., 123 Cal. 625, 56 P. 776; Estate of Arnold, 147 Cal. 583, 82 P. 252; Bloom v. Allen, 61 Cal.App. 28, 214 P. 481; Bakos v. Shell Oil Co. of California (Cal.App.) 271 P. 127; Gregg v. Western P. R.R. Co., 193 Cal. 212, 223 P. 533. In the light of the foregoing well-established rules, let us examine first the evidence touching the alleged contributory negligence of the deceased. The evidence is undisputed that William Krause, the deceased, was a guest of John W. Rarity, and at the time of the accident was sitting in the rear seat of Rarity’s automobile, and had absolutely no power or control over Rarity or the automobile in which he was riding, and never attempted to exercise any. Under such circumstances alone Krause could not be held guilty of contributory negligence, for the law is well settled in this state that the negligence of the driver of the machine cannot be imputed to a passenger therein, in the absence of any evidence showing that the latter exercised some control over the driver, or that he possessed the power to supervise or direct the manner in which the automobile should be operated. Bryant v. Pacific Electric Ry. Co., 174 Cal. 737, 164 P. 385; Irwin v. Golden State Auto Tour Corp., 178 Cal. 10, 171 P. 1059; Nichols v. Pacific Electric Ry. Co., 178 Cal. 630, 174 P. 319; Marchetti v. Southern Pacific Co. (Cal.Sup.) 269 P. 529, 530. Therefore, if deceased was guilty of contributory negligence, it must have been some act either of commission or omission on his part, other than being a mere guest of Rarity, which of itself constituted contributory negligence. There is, however, no evidence in the record tending to show any such act of negligence on the part of the deceased.
It is argued by the defendant railway company that the railroad signs, track, and engine were open and visible to deceased, and that he should have warned Rarity of the approaching danger, etc. Practically the same contention was made in the case of Marchetti v. Southern Pacific Company, supra, and there the Supreme Court said:
"This argument, we think, is satisfactorily and completely answered by the following statement of the law on this subject, found in 3 Cal.Jur. pp. 853 and 854: ‘A passenger in a motor vehicle approaching a railway crossing is under no legal obligation to warn the driver, either of the presence of the tracks or of an approaching train; the view being unobstructed and the driver reasonably competent and vigilant. And, while it is the passenger’s duty to look and listen, it is not his duty to stop for a successful observation, since he has no authority over the driver, but is wholly subject to the latter’s action. The passenger has a right to suppose that the driver, on approaching a railway crossing with which he is familiar, will exercise due care for the protection and safety of his passengers, and that, even when so near the crossing as to be in apparent danger of collision with an on-coming train, he will or may take some action which will avert an accident. Nor is the passenger obliged, even when the danger of collision becomes suddenly imminent, to displace the driver, seize the operating levers and endeavor to avoid the impending catastrophe. Nevertheless, it has been said that the passenger must look out for himself, and may not, in a place of danger, as on approaching a railway crossing, rely blindly on the driver. But a passenger in a machine operated by another cannot be said as a matter of law to have been negligent in not calling the chauffeur’s attention to the danger of a collision."
The facts of the Marchetti Case are very similar to those in the case at bar, and we deem the foregoing a sufficient answer to the railway company’s contention.
Appellant railway company further insists that, if deceased had used ordinary care for his own safety, he would have seen and heard the locomotive and could have warned Rarity of the impending danger in time to have averted the accident, and, having failed to do so, was guilty of contributory negligence as a matter of law. In support of this contention the following cases are cited: Parmenter v. McDougall, 172 Cal. 306, 156 P. 460; Thompson v. L.A., etc., Railway Co., 165 Cal. 748, 134 P. 709; Bresee v. Los Angeles Traction Co., 149 Cal. 131, 85 P. 152, 5 L.R.A.(N.S.) 1059. These cases, undoubtedly, contain a correct statement of the law upon the subject of a passenger’s duty in case of known danger. They have little or no application to the case at bar, for the reason already stated, and for the additional reason that it does not appear that there was anything that could have been done by the deceased which would have averted the collision, had deceased seen the engine or track in time to have warned Rarity of the impending danger, and there is no assurance that the latter could have brought his machine to a stop before reaching the railroad tracks.
Furthermore, Rarity and orr both testified that they did not see the crossing signs, or hear the engine, and that no bell was rung and no whistle blown. They were seated in the front seat of the automobile, and there is some evidence in the record that Rarity’s view was somewhat obstructed. This testimony is some justification for assuming that deceased, who was in the rear seat of the automobile, did not hear the noise of the engine, or hear the bell or whistle, or see the cross signs, and also some evidence that the bell was not rung nor the whistle blown. Another witness, a lady living near by, also testified that no bell or whistle or other warning was given by the railroad engine. There is a presumption that deceased used due care and caution for his own protection, and did all that was reasonably required of him. There is no evidence in this case to overcome or dispel this presumption. See Marchetti v. Southern Pacific Co., supra; also Shields v. King (Cal.Sup.) 277 P. 1043.
In Carpenter v. Atchison, etc., Ry. Co., 51 Cal.App. 60, 195 P. 1073, 1075, the court said: "Conceding that deceased did see the approaching train and said nothing to the driver of the automobile or otherwise interfered with his operation thereof, nevertheless we cannot say as a matter of law that by reason of such omission he was guilty of negligence. *** The sole ground upon which the negligence of deceased is predicated is the fact that he could, had he looked, have seen the approaching train, and therefore, argues respondent, he should in the exercise of ordinary care for his safety have done something to escape the result of the collision. This question, however, in view of the presumptions arising, is one of fact to be determined by the jury from all the circumstances in the case."
Appellant railway company contends that deceased was guilty of negligence as a matter of law for riding in a car driven by a man with only one eye. No authority is cited in support of this contention. The only testimony in the case regarding Rarity’s eyesight is that he lost his left eye some 16 years before the accident; that he had been driving an automobile for 8 or 9 years prior to the accident, and that so far as he knew his vision was not affected by the missing eye, and that the eyesight of the remaining eye was good. The fact that Rarity was blind in one eye was a fact to be considered by the jury with all the other facts and circumstances in the case, in determining whether deceased was guilty of contributory negligence. We cannot say as a matter of law that deceased was guilty of contributory negligence. In view of all the facts and circumstances in the case, the question of contributory negligence on the part of deceased was one of fact to be determined by the jury.
Neither can we say as a matter of law that "the accident was solely and proximately caused by the negligence of the defendant Rarity." Under the authority of such cases as Koster v. Southern Pacific Co. (Cal.Sup.) 279 P. 788, Barnett v. Atchison, Topeka & Santa Fé Railway Co. (Cal.App.) 278 P. 443, Hoffman v. Southern Pacific Co. (Cal.App.) 281 P. 681, and Young v. P. Elec. R. Co. (Cal.Sup.) 283 P. 61, and the physical facts as the railway company contends existed at the time of the collision, Rarity was undoubtedly guilty of negligence, as a matter of law. There are, however, several material differences between the facts in the above cited cases and the case at bar, as far as Rarity is concerned. For example: In the instant case, Rarity and Orr both testified they were unacquainted with the country and road, and did not see the warning signs or the railroad track or engine, and heard no signal, and that the view was obstructed in the manner above set forth. We are of the opinion that Rarity’s negligence was also a question of fact for the jury.
However, the law is well settled that although Rarity, the driver of the car, may have been guilty of negligence as a matter of law, nevertheless, if the appellant railway company was guilty of negligence proximately causing the death of William Krause, the heirs of Krause, who was a guest of Rarity’s in the car, would not be barred from a recovery, as such negligence of Rarity could not be, under the circumstances, imputed to Krause. This was also a question of fact for the jury. Baldwin v. Pacific Electric Railway Co. (Cal.Sup.) 281 P. 380. We conclude, therefore, that the trial court did not err in denying the motion for a nonsuit.
The appellant railway company also contends that the court erred in refusing to direct a verdict in favor of said appellant at the close of all the evidence. We are unable to agree with this contention. The law is well settled that a directed verdict is not authorized, where there is any conflict in the evidence of a substantial character. Kohn v. National Film Corporation, 60 Cal.App. 112, 212 P. 207; Estate of Fleming, 199 Cal. 750, 251 P. 637; Estate of Baldwin, 162 Cal. 471, 123 P. 267; Young v. Pacific Electric Ry. Co., supra.
In this case there is a decided conflict between the testimony of the employees of the railway company and the other witnesses as to whether or not a whistle was blown or a bell was rung at the crossing at the time of the accident. Rarity and Orr both testified that they heard none, and the witness Mrs. Koumarin, who lived near the crossing at the time of the accident, testified that there was no whistle blown or bell rung, and the engineer and fireman in the employ of appellant railway company testified that they blew the whistle and rang the bell. Under such circumstances, it was a question of fact for the jury to determine, and the court was not authorized to direct a verdict in favor of said appellant.
Both appellants contend that the court erred in giving certain instructions and refusing certain other instructions. A great many of the instructions given are severely criticized by both appellants. We have examined carefully all instructions, both given and refused, and we are of the opinion that, when the instructions given are taken as a whole they fully and correctly state the law applicable to all phases of the case. Both appellants offered a large number of instructions, and a great many were refused, and it is entirely unnecessary for us to discuss each refused instruction. Suffice it to say we find no prejudicial error was committed by the trial court in refusing or giving any of the instructions complained of.
The appellants also contend that the amount of the verdict is excessive as a matter of law. We are likewise unable to agree with this contention. A motion for a new trial was made upon several grounds, among them being "excessive damages, appearing to have been given under the influence of passion or prejudice." Code Civ.Proc. § 657, subd. 5. The motion for a new trial was denied. The rule is well established that the amount of damages in this kind of an action is committed first to the sound discretion of a jury, and next to the discretion of the judge of the trial court, who in ruling upon the motion for a new trial may consider the evidence anew, determine anew the facts, and set aside the verdict if it is not just. Upon appeal the decision of the trial court and the jury on the subject cannot be set aside, unless the verdict is so plainly and outrageously excessive as to suggest, at first blush, passion or prejudice or corruption on the part of the jury. Reneau v. Hirsch, 88 Cal.App. 1, 262 P. 1100, and cases there cited.
We have carefully examined the entire record, including the evidence, and there is nothing in the record to show that the verdict was not the result of a fair and honest judgment of the jury. The uncontradicted evidence shows that the deceased was a man of 42 years of age, in good health, with a proven income of from $4,000 to $5,000 per annum, and an expectancy of life of 26.72 years, and contributed from $250 to $300 a month to plaintiffs. When all the facts and circumstances are considered, we think the award is not disproportionate to the compensation reasonably warranted by the facts.
Many other contentions are made by both appellants for a reversal of the judgment, but we have carefully considered them all, and find none of them of sufficient importance to warrant a reversal of the judgment or require special discussion. We have given the entire case careful consideration, and, as above stated, we have come to the conclusion that the question of negligence on the part of Rarity and contributory negligence on the part of deceased were questions of fact for the jury, and, the jury having determined that both Rarity and the Atchison, Topeka & Santa Fé Railway Company were negligent, we find no reason to disturb their findings and judgment.
From the facts stated, it will be seen that the present action is one for damages for the death of William Krause, who was killed on September 12, 1927, while riding as a guest in the automobile of appellant John W. Rarity. As far as Rarity is concerned, the action is based upon his failure to use ordinary care. The accident happened, suit instituted, judgment obtained, and this appeal taken and perfected, all before section 141¾ of the California Vehicle Act became effective.
The right of plaintiffs to maintain this action was a statutory right, depending upon section 377 of the Code of Civil Procedure. No such right of action existed under the common law. Kramer v. San Francisco Market Street R.R. Co., 25 Cal. 434; Clark v. Goodwin, 170 Cal. 527, 150 P. 357, L.R.A.1916A, 1142; Dickinson v. Southern Pacific Co., 172 Cal. 727-730, 158 P. 183; McLaughlin v. United Railroads, 169 Cal. 494, 147 P. 149, L.R.A.1915E, 1205, Ann.Cas.1916D, 337; 8 Cal.Juris. 948; 949, 950 and 951, and cases there cited.
Section 377 gives a right of action for damages for the death of a person, not a minor, caused by the wrongful act or neglect of another, to his heirs or personal representatives "against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person." This is a general section and gives a right of action for damages for the death of any person, not a minor, caused by any actionable wrong or neglect of another person.
In the case at bar, plaintiffs were only required to prove a lack of ordinary care on the part of Rarity to recover against him (section 2096, Civ.Code); or, in other words, the "wrongful act or neglect" mentioned in section 377 of the Code of Civil Procedure was, in this case, the "failure" of Rarity to "use ordinary care and diligence" for Krause’s safe carriage. Nichols v. Pacific Electric Railway Co., 178 Cal. 630, 174 P. 319; Sheean v. Foster, 80 Cal.App. 56, 251 P. 235; Curran v. Earle C. Anthony, Inc., 77 Cal.App. 462, 247 P. 236; Spring v. McCabe, 53 Cal.App. 330, 200 P. 41; Brown v. Davis, 84 Cal.App. 180, 257 P. 877.
Appellant Rarity contends that section 377 of the Code of Civil Procedure, in so far as it formerly authorized an action against the operator of an automobile for damages for the death of a guest caused through a failure to use ordinary care, has been repealed by section 141¾ of the California Vehicle Act (as added by St.1929, p. 1580).
The Legislature of 1929 added section 141¾ to the California Vehicle Act (St.1929, c. 787). This section provides that the representatives or heirs of a deceased person shall have no right of action for damages for death, where the deceased has been killed while riding in a vehicle as a guest, upon the public highway, unless such death proximately results from intoxication, willful misconduct, or gross negligence of the owner, driver, or person responsible for the operation of the vehicle, and, furthermore, provides that in such action the burden of proof is cast upon the plaintiff to prove that such death was proximately caused by intoxication, willful misconduct, or gross negligence of the person responsible for the operation of the vehicle. This section relates to two subjects: (1) The right of recovery against the operator in an action brought by the guest; (2) the right of action by the personal representatives or heirs of a person killed while riding as a guest. It seems clear, therefore, that the Legislature intended to have section 141¾ of the California Vehicle Act govern all actions by a guest, or in behalf of the heirs of a guest, against the operator of an automobile or other vehicle upon the public highways of this state.
Said section 141¾ is, therefore, repugnant to sections 1714 and 2096 of the Civil Code, and also to sections 376 and 377 of the Code of Civil Procedure, in so far as these sections authorize the maintenance of an action for damages for the death or injury of a guest against the operator of an automobile based on ordinary negligence. Such being the situation, the old sections and the new section cannot stand together in their entirety, and, to the extent that sections 376 and 377 of the Code of Civil Procedure and sections 1714 and 2096 of the Civil Code are inconsistent with section 141¾ of the California Vehicle Act, the latter act will repeal the former sections on the same subject by implication. People v. Henshaw, 76 Cal. 436, 18 P. 413; City and County of Sacramento v. Bird, 15 Cal. 295; Dillon v. Bicknell, 116 Cal. 111, 47 P. 937; Treadwell v. Yolo County, 62 Cal. 564; Charnock v. Rose, 70 Cal. 192, 11 P. 625; Hanley v. Sixteen Horses, 97 Cal. 183, 32 P. 10; Ex parte Benjamin, 65 Cal. 310, 4 P. 23; Talcott et al. v. Board of State Harbor Commissioners, 53 Cal. 199; Mack v. Jastro, 126 Cal. 130, 58 P. 372; McGranahan v. Police Court, 56 Cal.App. 372-374, 205 P. 98; 23 Cal.Juris. 702.
In Sedgwick on Statutory Law, p. 124, it is said: "Even if a subsequent statute be not repugnant in all its provisions to the prior one, yet if the latter statute was clearly intended to prescribe the only rule which should govern in the case provided for, it repeals the original act."
The right of a guest to sue or, in case of his death, the right of his heirs or personal representatives to sue, is not destroyed or impaired by the enactment of section 141¾ of the California Vehicle Act. The right is the same under the new section as under the old sections, but the degree of negligence required to be proved by a guest is greater under the new statute than under the old. The right given all other class of persons to sue for torts, and the degree of proof required, is in no way affected by the new section.
Therefore, sections 376 and 377 of the Code of Civil Procedure, and sections 1714 and 2096 of the Civil Code, are amended only in so far as the rights of a guest riding in a vehicle on the public highways of this state are concerned, and not in any other respect. Said amendment could have been made to each section of the Code above mentioned and accomplished the same purpose, and we think the new section (141¾ ) should be considered as an amendment to said sections of the Code with the same force and effect as if each section had been actually amended to include the language of said section 141¾ of the California Vehicle Act.
Appellant Rarity next contends that section 141¾ is retroactive in its operation, and, by reason thereof, the action abates and the judgment falls.
We are unable to agree with this contention. "A retrospective law is one which operates upon matters which occurred, or rights and obligations which existed, before the time of the enactment." 5 Cal.Juris. 747; Smith v. Mathews, 155 Cal. 752, 761, 103 P. 199; People v. Allied Architects’ Ass’n, 201 Cal. 428, 257 P. 511.
It is a well-settled principle of statutory construction that, while the Legislature has power to pass retroactive laws which do not impair the obligations of contracts or affect injuriously vested rights, it is equally true that statutes are not to be construed as intending to have a retroactive effect so as to affect pending litigation, unless such intent is expressly declared or necessarily implied from the language of the enactment. Williams v. Johnson, 30 Md. 500, 96 Am.Dec. 616; James v. Oakland Traction Co., 10 Cal.App. 785, 796, 797, 103 P. 1082; Greer v. Blanchar, 40 Cal. 194, 197; Gates v. Salmon, 28 Cal. 320, 321; Pignaz v. Burnett, 119 Cal. 157, 51 P. 48; Willcox v. Edwards, 162 Cal. 455, 123 P. 276, Ann.Cas.1913C, 1392; Estate of Richmond, 9 Cal.App. 402, 99 P. 554; Montecito County Water Dist. v. Doulton, 193 Cal. 398, 224 P. 747; Vanderbilt v. All Persons, 163 Cal. 507, 126 P. 158; East Bay Municipal Utility Dist. v. Garrison, 191 Cal. 680, 218 P. 43; 36 Cyc. 1205; Bascomb v. Davis, 56 Cal. 152; Estate of Frees, 187 Cal. 150, 156, 201 P. 112; Estate of Parker, 200 Cal. 132, 141, 251 P. 907; State Commission in Lunacy v. Welch, 20 Cal.App. 624, 630, 129 P. 974, 976; Endlich on the Interpretation of Statutes, p. 362.
In Cooley on Constitutional Limitations (7th Ed.) p. 529, the rule is thus stated: "It is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively."
In State Commission in Lunacy v. Welch, supra, the court said: "It is quite true that the Legislature has power to pass retroactive laws, that do not impair the obligation of contracts or vested rights; but it is equally true that laws are not construed as intended to have a retroactive or retrospective effect, so as to affect pending litigation, unless such intent is expressly declared or necessarily implied in the language of the statute."
Again, In the Matter of Clyde E. Cate, etc. (Cal.Sup.) 279 P. 131, 133, Mr. Justice Richards said: "It is a canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intention."
The rule of construction above announced is not alone supported by the foregoing authorities, and many others that could be cited, but the Legislature of this state has expressly prescribed certain rules of interpretation which reflect the general legislative policy of this state upon the question of the effect of legislation repealing or amending statutes upon rights of action which have accrued prior to the enactment of such legislation. Section 3 of the Civil Code contains the express provision: "No part of it [Civil Code] is retroactive, unless expressly so declared." A similar provision is found in the Code of Civil Procedure, § 3; Penal Code, § 3; Political Code, § 3, and this rule applies to the amendments to the codes as well. Estate of Frees, supra; Sharp v. Blankenship, 59 Cal. 288; Central Pacific R.R. Co. v. Shackelford, 63 Cal. 261; Bank of Ukiah v. Moore, 106 Cal. 673, 680, 39 P. 1071; Estate of Richards, 133 Cal. 524, 527, 65 P. 1034; McKay v. Lauriston, 204 Cal. 557, 566, 269 P. 519; In the Matter of the Application of Cate (Cal.Sup.) 279 P. 131; People v. Allied Architects’ Ass’n, 201 Cal. 437, 257 P. 511.
We have carefully read section 141¾ and find no language contained therein that would give the slightest intimation that the Legislature intended that said section should have a retroactive operation. The very contrary is indicated by some of the language used. The section, in part, reads: "Any person who as a guest accepts a ride in any vehicle moving upon any of the public highways of the State of California, and while so riding as such guest receives or sustains an injury, shall have no right of recovery. *** In the event that such person while so riding as such guest is killed *** then neither the estate nor the legal representatives *** shall have any right of recovery. *** If such person so riding as a guest be a minor and sustain an injury or be killed *** then neither the parents nor guardian nor *** representatives *** of such minor shall have any right of recovery. *** Nothing in this section contained shall be construed as relieving the owner *** provided, that in any action for death *** to person or property by or on behalf of a guest *** the burden shall be upon plaintiff. *** For the purpose of this section the term ‘guest’ is hereby defined as being a person who accepts a ride in any vehicle without giving compensation therefor."
"Words used in this code in the present tense include the future as well as the present." Civ.Code, § 14. Under the maxim, "expressio unius est exclusio alterius," it seems to follow that words used in the present tense do not include the past.
Thus it will be seen that said section uses the expression "Who accepts a ride" twice and uses the expression "Shall have no right to recover," or similar language, three times. The word "shall," found in these phrases, while mandatory in meaning, usually refers to the future. Likewise, the expression "who accepts a ride" is directed to rides to be taken in the future. 5 Cal.Juris. 750; People v. Allied Architects’ Ass’n, supra.
Therefore, from the language of said section alone, a prospective, and not a retrospective, operation of the statute was undoubtedly intended by the Legislature.
In the case at bar, the trial court instructed the jury in accordance with section 2096 of the Civil Code as it stood when the accident happened. If the court had instructed the jury that it was necessary for plaintiffs to prove that Rarity was guilty of willful misconduct or gross negligence in the operation of his car, or was intoxicated at the time of the accident and while operating the car, it would have been prejudicial error, because the law, as it then stood, only required plaintiffs to show that Rarity failed to use "ordinary care" in the operation of his automobile. The trial judge certainly could not have anticipated a change in the statute as to the degree of negligence required to be proved by plaintiffs.
Rarity places great reliance upon such cases as People v. Bank of San Luis Obispo, 159 Cal. 65, 112 P. 866, 37 L.R.A.(N.S.) 934, Ann.Cas.1912B, 1148; Moss v. Smith, 171 Cal. 777, 155 P. 90, and Freeman v. Glenn County Telephone Co., 184 Cal. 508, 194 P. 705, in support of his contention that section 141¾ is retroactive. A careful study of these cases will show that there is a clear distinction between all of them and the case at bar. It must be remembered that this action is not for the enforcement of a penalty but for the recovery of compensatory relief only. 8 Cal.Juris., p. 730.
People v. Bank of San Luis Obispo was an action by the Attorney General in the name of the people for a decree declaring the defendant insolvent, etc., prosecuted under the provisions of section 10 of the Banking Act of 1903. St.1903, p. 368. That section makes it the duty of the Attorney General, under circumstances described therein, to prosecute an action of the kind considered in the decision. It authorizes the entry of judgment in a proper case ordering "such corporation into involuntary liquidation," appoint a receiver, etc. The act of 1903 was repealed pending appeal by the Bank. Act of 1909. St.1909, p. 87. By section 134 of the latter act the superintendent of banks was authorized to liquidate the affairs of a bank directly, without any action in court. In the San Luis Obispo Bank Case it was not a mere change in the degree of proof required, but the provisions of the old law were entirely repealed, leaving no authority therein to support any judgment.
In Moss v. Smith the judgment was based on section 309 of the Civil Code. Pending appeal the Public Utilities Act went into effect. St.Ex.Sess.1911, p. 18. Section 52, subd. b, provided: "The provisions of section 309 *** of the Civil Code of this state, *** shall have no application to public utility corporations." There again the whole foundation in law for any judgment against the defendant under section 309 was cut away.
In Freeman v. Glenn County Telephone Company, section 309, as amended (St.1917, p. 657), contained a saving clause as to all actions: "Excepting only the liability of a director of a corporation heretofore incurred shall not exist in any case where, all of the debts and liabilities of the corporation to creditors having been paid, the capital stock divided, withdrawn, or paid out constituted all of the capital stock of the corporation and the same was paid out, withdrawn, or divided with the consent of all of the stockholders to or among themselves." The effect of this language was to make the amendment expressly retroactive in the one instance named therein.
Furthermore, neither section 3 of the Civil Code, nor other similar sections in the Code of Civil Procedure, the Penal Code, or the Political Code is mentioned in any of these cases.
For the foregoing reasons we are satisfied that said section 141¾ of the California Vehicle Act is not retroactive and has no bearing whatsoever upon the case at bar.
Therefore, the judgment will be affirmed, and it is so ordered.
We concur: NOURSE, Acting P.J.; STURTEVANT, J.