Opinion
Page __
__ Cal.App.2d __343 P.2d 359Paul W. YARROW and Edna Yarrow, his wife, Plaintiffs and Appellants,v.STATE of California, Defendant and Respondent.No. 17835.California Court of Appeals, First District, First DivisionJuly 23, 1959Rehearing Denied Aug. 14, 1959.
Hearing Granted Sept. 16, 1959.
Opinion, 336 P.2d 1030, 332 P.2d 857, vacated.
[343 P.2d 361] Carr, McClellan, Ingersoll & Thompson, Richard C. Amick, Burlingame, for appellant.
Stanley Mosk, Atty. Gen., John E. Fourt, Deputy Atty. Gen., San Francisco, Robert E. Reed, Robert F. Carlson, Sacramento, Ropers, Majeski & Kane, Redwood City, for respondent.
ST. CLAIR, Justice pro tem.
Plaintiffs appeal from an order granting a new trial to defendant State of California. Judgments on the verdicts in favor of plaintiff Edna Yarrow in the amount of $13,534.38 and plaintiff Paul Yarrow in the amount of $772.06 had been entered. Thereupon the defendant moved for a new trial upon all the statutory grounds. The court granted the motion for new trial. The minute order from which the appeal was taken ended with the statement that it was on the ground of insufficiency of the evidence.
Plaintiffs furnished us with a statement of facts and advanced the contention that they were not disputed. Defendant does not dispute the same but sets forth some additions. Plaintiffs do not challenge the additions.
[343 P.2d 362] Statement of Facts
Plaintiffs Yarrow and wife were driving westerly on state highway 198 in the afternoon of September 6, 1955. At a point some 25 miles west of Coalinga, said highway curves rather sharply to the right and cuts through a hill. This cut left banks sufficiently high to hide vehicles in the cut from westbound travelers, and the highway inclines to a crest in the cut and then declines towards the west as it leaves the cut or defile. The pavement in this cut is 20 feet wide with a white line down the middle and the gravel shoulders are five feet wide from the edges of the pavement to the toe of the banks. The cut is in an area designated as Priest Valley Maintenance District 5 by the State Highway Department.
A three man crew, foreman Fairbanks and employees Clayton and Folkes, were building up and enlarging the gravel shoulder on the southerly side of the highway just beyond the west end of this cut, and at the time of this accident, Fairbanks was sitting in a dump truck loaded with dirt fill, on the southerly shoulder in the cut, waiting to unload, while Clayton was backing the bulldozer, fitted with a 10 ft. 6 in. scraper blade, out of the truck's way and onto the pavement. Folkes had been loading the trucks at a point about 3/4 of a mile east along 198, but at the time in question he was driving the loader towards the cut, having finished his job with the load in Fairbanks' truck.
There was a 'Men and Equipment Working' sign at the edge of the highway some 900 to 1200 feet east of the site of the accident, and an empty, unattended highway truck was parked near this sign. There was a similar sign posted at the site of the loading operations 3/4 of a mile east, but no sign closer to the cut than 900 feet.
As plaintiff Yarrow drove into this combination curve-incline-cut, from the east, he had concluded that whatever work was indicated by the sign had been finished because of the unattended truck and the distance between the last sign and the cut.
As the plaintiff entered the cut, he saw the bulldozer 60 or 70 feet ahead of him in his lane, as it appeared to him on this curve and over the crest of the incline, and he saw the highway truck parked opposite the bulldozer on the left shoulder, effectively blocking the highway, with the narrow shoulders and steep banks on both sides. Fairbanks and Clayton both testified that the end of the 10 ft. 6 in. blade on the bulldozer was about a foot over the white center line.
Plaintiff Yarrow immediately applied his brakes and pulled to the right but felt the car skidding on gravel or dirt on the pavement, and then with the right wheels on the gravelled shoulder, he lost control of the car, struck the bank and rolled over. Both plaintiffs were injured, Mrs. Yarrow going out the right front door as it flew open.
Clayton, State Highway Department employee, testified that he was in the act of backing the bulldozer out on the pavement to let Fairbanks drive the truck out on the new shoulder to unload when he saw the plaintiff's car coming; that he was 8 or 10 feet east of the end of the cut; and when he saw the plaintiff coming, he reversed directions and 'got ahead, right quick, to give him more room'; and tried to wave him to stop. He testified the dump truck was 5 or 6 feet wide; and that he had flagged down an eastbound car to stop until he had completed his maneuver; but there was no one posted at the east end of the cut to warn westbound vehicles such as plaintiff; and that he reversed his dozer in a hurry because, 'I just wanted to get more room; the way he was coming, I thought I had better run ahead to keep him from hitting into our machinery.' Clayton further testified that the maximum speed of the dozer was five miles an hour in high gear and that he moved westerly about 10 feet, leaving the dozer still on the pavement; but didn't 'pull out' to try and clear the pavement.
Fairbanks, the foreman, testified that the box on his truck was 5 1/2 feet wide or possibly a few inches wider; that they [343 P.2d 363] had hauled 50 yards of dirt to the new shoulder through this cut that day; that when the dozer had backed up out of his view to the east, 'all at once, the cat seemed to jamp forward * * * and I could tell, by the expression on his face [Clayton], that something was wrong.' He then jumped out and saw Mrs. Yarrow sitting on the pavement, and the dozer had stopped five or six feet in front of his truck with the scraper blade still 'some 10 to 12 inches over the white line,' and wholly on the pavement. Mr. Fairbanks told Mr. Yarrow that 'the job didn't warrant a flagman,' because there was '[n]o work on the travelway.' He swept off the pavement the night of the accident, and the dump trucks were 'old' and he was not sure they didn't leak.
Defendant's additions to and comments on the above facts.
The blade of the bulldozer obstructed at most one foot of the westbound lane. In other words, most of the westbound lane (nine out of ten feet) and all of the shoulder next to that lane (five feet) were available for plaintiff to go through.
There was no dirt or gravel on the highway at or near the point where the accident occurred. Mr. Fairbanks did sweep the highway after the accident but only to remove some broken glass that apparently came from plaintiff's car.
Although plaintiff claims that he could not see the bulldozer until he was 60 or 70 feet away from it, he probably could have seen it from a distance of 300 or 400 feet.
Although he admittedly had seen at least one of the two signs posted by defendant and although he unquestionably had just passed the loader on the highway, plaintiff entered the cut at a speed of 60 miles per hour.
Although plaintiff makes must of the fact that an eastbound automobile was flagged by the bulldozer operator immediately before the accident and implies that defendant took special steps for the protection of eastbound traffic which it did not take for the protection of westbound traffic, the evidence simply shows that Mr. Clayton (the operator) flagges the eastbound automobile from his bulldozer in exactly the same way as he attempted to flag plaintiff as soon as he saw him approaching the cut.
The order granting a new trial.
Plaintiffs contend that the learned trial judge did not grant the new trial on the ground of insufficiency of the evidence but on the ground that the verdicts were contrary to law and that he abused his discretion in so doing.
Defendant just as earnestly contends that because the order from which an appeal was taken ends up with the magic words 'Motion for new trial is granted upon the ground of insufficiency of the evidence to sustain or justify the verdict' this court is precluded from examining any further into the order, or its effect.
The trial judge wrote and filed an opinion, which is part of the record before us. On brief, both parties seemed to assume that the applicable rule was that an opinion rendered by the trial judge cannot be used to impeach an order granting a motion for a new trial. Stone v. Los Angeles County Flood Control Dist., 81 Cal.App.2d 902, 185 P.2d 396.
Plaintiffs agree that such a rule exists, but claim to be within an exception, to wit, that an opinion can be used as an aid in the interpretation of an uncertain decision or the discovery of the grounds thereof, either for the purpose of sustaining it or reversing it. (3 Witkin, California Procedure, pp. 2234-2237.)
An examination of the record indicates an unusual situation. As we have said, the trial judge wrote and filed an opinion. He then repeated the entire opinion in the minute order from which this appeal was taken.
The notice of appeal contains the wording amongst others, that the appeal is 'from the whole of said Order.' The minute order, not the opinion, reads: [343 P.2d 364] 'Minutes Civil and Criminal, Department No. 2, Vol. 90 Page 433
'(Title of Court)
'April 5, 1957
'Present: Hon. Edmund Scott, Judge
'70821 (Title of Cause)
'Motion for a New Trial (Heretofore submitted)
'Plaintiffs admit that if they can recover, the recovery must be under Section 400 of the Vehicle Code.
'Section 400 of the Vehicle Code waives the common law immunity of the State and Municipal bodies for damages because of negligence of public employees; but limits such waiver to damages occasioned by the operation of vehicles.
'In our opinion, Sections 400 and 453 must be read together. Section 453B exempts public employees and '--Motor Vehicles and other equipment, while actually engaged in work upon the surface of the highway, etc.' from the provisions of the Vehicle Code.
'In our opinion, the Section shows no intention by the Legislature to exempt from the provisions of the Vehicle Code not only public employees, but the public employer.
'The evidence is clear that the State employees were engaged in work upon the surface of the highway and were operating motor vehicles. Therefore plaintiffs must prove some negligence in the operation of motor vehicle not arising from a violation of a Section of the Vehicle, Code, in order to recover against the defendant, State of California. In our opinion, the evidence does not show any such negligence. Plaintiffs suggest that State Employees were negligent in not waiving a warning to plaintiffs, as was done to a vehicle approaching from the west, or that they were negligent in not sweeping loose dirt from the surface of the highway.
'Perhaps such omissions were acts of negligence, but we cannot see how they constitute any part of the operation of a motor vehicle, as required by Section 400.
'Motion for judgment notwithstanding the verdict is denied.
'Motion for new trial is granted upon the ground of insufficiency of the evidence to sustain or justify the verdict. Done in open court this 4 day of April, 1957.
'Edmund Scott, Judge.'
A trial court's minutes are presumably a trustworthy chronicle of events as they transpired at the trial, and are ordinarily controlling as to what was done there. Smith v. Smith, 115 Cal.App.2d 92, 251 P.2d 720.
It is the minute order of the court that constitutes the action of the court. Whitney v. Northwestern Pac. R. Co., 39 Cal.App. 139, 178 P. 326; Fechtner v. Costa, 16 Cal.App.2d 691, 61 P.2d 473; Birch v. Mahaney, 137 Cal.App.2d 584, 290 P.2d 579.
The rules governing the interpretation of orders, vis-a-vis judgments are well set. An order of a court is subject to the same rules of interpretation as any other written instrument. Maxwell v. Perkins, 116 Cal.App.2d 752, 255 P.2d 10, citing Ex parte Ambrose, 72 Cal. 398, 14 P. 33. To the same effect, see Gardner v. Rich Mfg. Co., 68 Cal.App.2d 725, 158 P.2d 23 and Roraback v. Roraback, 38 Cal.App.2d 592, 101 P.2d 772.
There is a collateral rule, running through all the last cited cases, commencing with Ex parte Ambrose, supra, 1887, to the effect that if the language of the order be in any degree uncertain, then reference may be had to the circumstances surrounding. In Gardner v. Rich Mfg. Co., supra, quoting from Roraback v. Roraback, supra, 68 Cal.App.2d at page 740, 158 P.2d at page 31, the court said: 'In such circumstances the statement of the court in Roraback v. Roraback 1940, 38 Cal.App.2d 592, at page 596, 101 P.2d 772, is pointedly applicable. It is there said: 'The true measure of an order, however, is not an isolated phrase appearing therein, but its effect when considered as a whole. [Citing cases.] In construing orders they must always be considered [343 P.2d 365] in their entirety, and the same rules of interpretation will apply in ascertaining the meaning of a court's order as in ascertaining the meaning of any other writing. If the language of the order be in any degree uncertain, the reference may be had to the circumstances surrounding, and the court's intention in the making of the same. Citing cases.' Applying this rule to the circumstances surrounding the making of the order and the action of the court pursuant thereto it is apparent that it was the court's intention to set aside the findings of fact, conclusions of law and judgments and to decide the cases upon all the evidence, including that which had been received upon the cases being re-opened, for the plaintiffs.'
The 'circumstances surrounding' in the instant case are that the learned trial judge did not merely file his opinion but he went one step further and set forth his statements of fact and reasoning on which he explained and qualified the ultimate finding. The rule that the trial judge's opinion cannot be used to impeach his order is long established and well known. One can only conclude that the trial court, having filed both, desired to have the basis for his decision before this court in the order itself, if an appeal should be taken.
We come back to the question of whether or not this court should consider the minute order appealed from by its four corners, or whether we are limited to the last paragraph thereof. Preliminarily, it should be noted that this court has no power to disregard the minute order of the trial court. Govea v. Superior Court, 26 Cal.App.2d 27, 78 P.2d 433.
Again preliminarily, we should clarify what the plaintiffs seek to do, insofar as the order itself is concerned.
Plaintiffs cite Long v. Newlin, 144 Cal.App.2d 509, 301 P.2d 271, 272. There the court entered an order reading: "the motion of defendant Rhae E. Foust for a new trial herein, and the motion of defendants George E. Newlin and J. C. Theriot for a New Trial herein heretofore submitted July 22, 1955, are granted upon the grounds of insufficiency of the evidence to show that it was not necessary to have an accounting."
It would appear that plaintiff's position here, is that the order appealed from is, on its face, expressly limited to the ground of insufficiency of the evidence to support a finding or verdict of negligent operation of a motor vehicle not arising from a violation of a section of the Vehicle Code.
There is some confusion in the cases and in this case occasioned by using, interchangeably, three separate lines of authority. One is definitely not involved here, to wit: 'the use of oral opinions of the trial judge in interpreting his orders, where the reasons set forth furnish the basis of the court's action. See Coakley v. Ajuria, 209 Cal. 745, 290 P. 33, and In re Oster, 135 Cal.App.2d 769, 287 P.2d 859.
Another line of cases is where there is a written opinion of the trial judge and an attempt is made to use the opinion to interpret the order. This rule is applicable here, presumably because the defendant relies on one of the leading California cases on the point, to wit, Stone v. Los Angeles County Flood Control Dost., supra, 81 Cal.App.2d 902, 185 P.2d 396.
There appears to be no question that the appellate courts will and do use the trial court's written, separate opinion to interpret his order under certain circumstances. See Stone v. Los Angeles County Flood Control Dist., supra; Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740, 47 P.2d 273; Smith v. Fetterhoff, 140 Cal.App.2d 471, 295 P.2d 474.
However, there is no question but that all of last cited cases, and others where the court uses the written opinion of the trial judge to interpret his separate order, also accept the corollary that such separate opinion cannot be used to impeach the order. Many of the cases cited in the previous paragraph are examined and followed in Oldis v. La Societe Francaise De Bienfaisance Mutuelle, 130 Cal.App.2d 461, 279 P.2d 184.
[343 P.2d 366] It is clear that the plaintiffs can neither seek nor find solace in either of the two lines of cases just examined, i. e., as exemplified by Coakley v. Ajuria, supra, 209 Cal. 745, 290 P. 33 (oral opinion of trial judge), or as by Stone v. Los Angeles County Flood Control Dist., supra, 81 Cal.App.2d 902, 185 P.2d 396 (written opinion separate from the order appealed from).
We now turn and examine a line of cases that bear directly on the problem of the instant case, to wit, where the order appealed from contains recitals that bear, or if used, would bear, on the interpretation of the order.
In Mathews v. Mathews, 49 Cal.App. 497, 193 P. 586, there had been an award of alimony in the interlocutory decree.
A final decree was duly entered but it was silent on the subject of maintenance of alimony. Both parties made appropriate motions. The trial court made the following order: "Payment of alimony provided in the interlocutory decree herein was not carried into the final decree, and hence alimony herein cannot now be collected." 49 Cal.App. at page 499, 193 P. at page 586. At page 501 of 49 Cal.App., at page 587 of 193 P., the appellate court said: 'This appeal is prosecuted from the special order of the trial court above quoted. The proceeding was instituted by defendant's motion. The court did not grant such motion, but made an order which shows by its very terms that it was based upon the proposition that a provision for the payment of alimoney in an interlocutory judgment of divorce cannot be enforced unless it is carried into the final decree. Such is not the law. The trial court's order was erroneously made, and is reversed.'
At the oral argument, plaintiffs cited In re Estate of Baird, 198 Cal. 490, 246 P. 324. The opinion in 198 Cal., and in 246 P. was on the fourth appeal In re the Estate of Baird and a great deal revolved around what was, or was not, the law of the case. We permitted the defendant to file written comments on the Baird case. Therein the defendant concedes that in the Baird case the Supreme Court did reverse an order granting a new trial for insufficiency of the evidence (and, the defendant asserts, other reasons) and argues the case is not controlling here.
It is difficult to assess the contribution of the Baird case to the rule now under discussion. However, as is perfectly clear at pages 502 of 198 Cal., at page 329 of 246 P., et seq., the Supreme Court in the Baird case did use the recitals in the trial court's order, other than the ultimate recital of granting a new trial for insufficiency of the evidence, to interpret what the trial court had done.
Lincoln v. Superior Court, 22 Cal.2d 304, 139 P.2d 13, was an application for a writ of mandate to force a trial court, in a divorce proceeding, to grant a hearing (or a further hearing) in an order to show cause. The court said: 'After receiving the evidence of the parties, as above related, the superior court made an order which is reflected in its minutes as follows: 'Order to Show Cause re Alimony Pendente Lite, Costs, Attorney's Fees and Restraining Order comes on for hearing: Plaintiff is present with her attorney, Roger Marchetti, and defendant is also present with his attorney, Jerry Giesler, who appears specially on the Motion to Quash. Defendant's Motion to Quash and Dismiss is granted.'' 22 Cal.2d at page 308, 139 P.2d at page 15.
The situation was rather confused but at page 309 of 22 Cal.2d, at page 16 of 139 P.2d the court said: 'However, by reason both of the form of defendant's motion to quash and the language of the court's order, the action actually taken by the court is confusingly portrayed. But the fact remains that the court did exercise jurisdiction in the premises when it (1) issued the order to show cause, (2) conducted the hearing thereon, receiving and considering defendant's evidence as to the Virginia court suit, as well as plaintiff's affidavit and her complaint, and (3) entertained the motion for and made its order dismissing the proceeding.'
The applicability of the Lincoln case is that the Supreme Court did use all four [343 P.2d 367] corners of the trial court's order to interpret the trial court's action.
Bridgford v. Sawyer, 105 Cal.App.2d 631, 234 P.2d 95, was an action for damages for personal injuries sustained when an automobile overturned as a result of the flooding of a highway. The order granting the defendant irrigation district a new trial was affirmed. The court said: 'Appellants' principal contention is that the order granting a new trial does not specify insufficiency of the evidence to justify the verdicts within the meaning of section 657 of the Code of Civil Procedure, both because it was not the 'usual unequivocal order' and because a reading of the order as a whole demonstrates that insufficiency of the evidence was not the true basis of the order.
'The written order granting the new trial contained a short discussion by the court on some aspects of the case and concluded with these two sentences: 'For the foregoing reasons the Court is of the opinion that the evidence is insufficient to justify the verdict of the jury and for that reason is against the law. It Is, Therefore, Ordered that the verdict of the jury in this case be set aside and the defendant, Merced Irrigation District is hereby granted a new trial.'
'There can be no question but that the import of the language quoted from the order was that the basis of granting the new trial was insufficiency of the evidence.' 105 Cal.App.2d at pages 632-633, 234 P.2d at pages 97.
While the recitals of the trial court are not given, it is clear that the appellate court reviewed the recitals and used them to interpret the ultimate recital that 'The evidence is insufficient to justify the verdict of the jury.'
It is true that the court in the Bridgford case goes on to discuss the rule as to whether or not the opinion of the trial court can be used to impeach the ultimate order. Although it would not appear to have been necessary, in the light of the above quoted language, the court cited Diaz v. Shultz, 81 Cal.App.2d 328, 183 P.2d 717, and Stone v. Los Angeles County Flood Control Dist., supra, 81 Cal.App.2d 902, 185 P.2d 396. As we have seen, the Stone case is one of a separate written opinion. The Diaz case comes within the first group cited above, to wit, oral statements of the court cannot be used to impeach the ultimate order.
Boling v. Wood, 161 Cal.App.2d 381, 327 P.2d 65, was an action for damages for personal injuries. There was a square conflict between plaintiffs and defendants as to the existence of a roll of roofing paper which plaintiffs claimed had struck Mrs. Boling. Defendant put in certain evidence from which the jury could infer that plaintiffs had conjured the roll out of thin air.
The court said: 'In rebuttal, appellants called two witnesses to rebut the inference of fabrication. The issue on appeal revolves around the receipt in evidence of the testimony of one of them. A Mr. Ludy testified, over objection, that a day or so after the accident he met with his fellow worker, Warren Boling, and in a conversation that ensued had been told by him that his wife had suffered an accident in which a rull of roofing paper had fallen on her through the skylights over their living room. Another witness testified that shortly after the accident she had received a letter from Mrs. Boling stating that she had been hit on the head with a rull of roofing paper, and that her landlord, while roofing the house, had let it drop through two skylights.
'A motion for a new trial was made and was granted. We quote the Memorandum and Order Granting New Trial: 'In my opinion there was not sufficient foundation for the admission of the statement by Mr. Boling to the witness Ludy. The only party as to whom the direct charge of fabrication could be leveled was not shown to be present and did not participate in the conversation. We assume the court referred to Mrs. Boling as the only party to whom the direct charge of fabrication could be leveled. It was, therefore, pure hearsay and not competent under the rehabilitation rule. * * * The motion for new trial should be granted and it is so ordered.'' 161 Cal.App.2d at pages 383-384, 327 P.2d at pages 67-68.
[343 P.2d 368] The order granting the new trial was reversed. The appellate court used the recitals of the trial judge to interpret his ultimate action. Because his recitals set forth an incorrect theory of the law and hence an erroneous basis or reason for the order, the ultimate order granting the new trial was reversed.
In view of the above discussion it would appear that the entire order appealed from is to be used in interpreting the same. Also, that if the order contains a limitation in the ultimate order granting a new trial, the legality of that limitation is properly before this court.
Once we examine the order in question throughout its four corners, it is perfectly clear that there is a limitation, i. e., the court granted a new trial because of the insufficiency of the evidence to show negligent operation of a vehicle under section 400 of the Vehicle Code, in view of the provisions of section 453(b) of the same code, as the two sections, singly and together, were interpreted by the trial court.
We hold that if the trial court erred in its interpretation of the applicable law, we have the power and it would be our duty to reverse the order granting a new trial.
Does section 453(b) give the state (vis-a-vis its employees) immunity from suit for the negligent operation of vehicles engaged in work on the surface of a highway?
Section 400 of the Vehicle Code reads in part as follows: 'The State * * * is responsible to every person who sustains any damage * * * as the result of the negligent operation of any * * * motor vehicle by an * * * employee * * *.'
The section goes on to give the state the right of subrogation against any such employee.
Section 453 of the Vehicle Code reads as follows: 'Public Officers and Employees to Obey Code. (a) The provisions of this code applicable to the drivers to vehicles upon the highways shall apply to the drivers of all vehicles while engaged in the course of employment by this State or any political subdivision thereof or any municipal corporation or district therein including authorized emergency vehicles subject to those exemptions granted such authorized emergency vehicles in this code.
'(b) The provisions of this code shall not apply to public employees and publicly owned teams, motor vehicles and other equipment while actually engaged in work upon the surface of a highway, or work of installation, removal, repairing or maintaining traffic signs, signals or other traffic control devices, but shall apply to such persons and vehicles when traveling to or from such work.
'(c) The provisions of this division of the code shall not apply to the duly authorized representatives of any public agency while actually engaged in performing any of the work described in subdivision (b) hereof but shall apply to such persons when traveling to and from such work. (Stats. 1935, c. 27, p. 163, § 453, as amended Stats. 1937, c. 69, p. 167, § 1; Stats.1947, c. 897, p. 2095, § 1; Stats.1951, c. 690, p. 1902, § 1.)' The state contends here and in the trial court, and the trial judge agreed, that said section 453, or at least subsection (b) thereof shows an intention on the part of the Legislature to exempt from the provisions of the Vehicle Code not only public employees but the public employer also. To the defendant State the situation is very simple, as set forth in its brief: 'Since the bulldozer was actually engaged in work upon the surface of the highway at the time of the accident (see section 81 of the Vehicle Code) and since section 400 is one of the 'provisions of this code' to which section 453(b) refers, it necessarily follows (1) that section 400 is inapplicable in this case and (2) that plaintiff cannot recover.
'In other words, the State waived its sovereign immunity in connection with the operation of motor vehicles generally (section 400) but it did not waive that immunity in connection with the operation of a motor vehicle actually engaged in work upon the surface of a highway (section 453(b)).'
A study of sections 400 and 453 indicates that the matter is not as simple and clear cut as the defendant contends. In fact, [343 P.2d 369] the plaintiffs just as vigorously contend that there is a conflict between the two sections. Certainly the trial judge felt that a search for legislative intent was needed and involved. To this we agree.
As we turn to subsection (b) of section 453 to see if there is any internal evidence therein as to the legislative intent, the first thing that is apparent is that there is no mention of public agencies in said subsection.
If the subsection read 'The provisions of this code shall not apply to public employees * * * while actually engaged in work upon the surface of a highway * * *.' it would be no different from section 454 (referring to drivers of authorized emergency vehicles), i. e., it refers to employees only and not to the employer. We will refer later to the case holding that while section 454 relieves the employee of liability, it does not relieve the governmental unit that is the employer.
It has been suggested that it is the addition, in the subsection of '* * * the * * * publicly owned teams, motor vehicles and other equipment * * *' that shows a legislative intent to have the subsection apply to the employer. It is quite true that motor vehicles cannot be sued; if one reads the subsection in the following manner 'The provisions of this code shall not apply to * * * publicly owned * * * motor vehicles * * *,' one can argue that it must apply to the owner of the vehicle because of the inanimate and non-mobile nature of a vehicle, by itself.
The last clause of the section reads '* * * but shall apply to such persons and vehicles when traveling to or from such work.' It is obvious that, here, the reference is to the employee operating the vehicle to and from work. The use of 'such persons' in an operating capacity would point strongly to the fact that, earlier in the subsection the Legislature was talking about 'public employees' in their capacity or function of operating 'the * * * publicly owned * * * motor vehicles * * *.' It is interesting to note that the defendant in the quotation from its brief, supra, apparently assumes this.
Another piece of internal evidence is the use of the word 'and' between 'public employees' and 'publicly owned * * * motor vehicles.'
Webster's New International Dictionary, Second Edition, and the cases point to the connotation of addition and connection between two classes (as in this case) connected by the word 'and.' See In re Estate of Harker, 88 Cal.App.2d 6, 198 P.2d 51. Other cases stress the meaning 'with,' 'along with' and 'together with.' Heald v. City of Cleveland, 27 Ohio Dec. 435, 19 Ohio N.P., N.S., 305. Other meanings are 'together with' and 'joined with.' Business Men's Building & Loan Ass'n v. Tumulty, 180 A. 772, 13 N.J.Misc. 638.
Section 400 is a formal and express waiver of sovereign immunity insofar as negligent operation of motor vehicles is concerned. The section was passed as section 1714 1/2 of the Civil Code, in 1929. It has remained unchanged since that time, except for the addition of the insurance fund and, at the time it was put in the Vehicle Code, the dropping of the first word in the statute, to wit, 'Hereafter' and the change of words 'shall be' in the fifth line to 'is.' It does not seem probable that the Legislature would amend or put back into effect a solemn waiver of sovereign immunity in the way suggested by the defendant. One must completely divorce 'public employees' from 'publicly owned * * * motor vehicles,' even though the two clauses are joined by 'and,' to reach such a conclusion. One must say that, by using the piecemeal reading '* * * shall not apply * * * to publicly owned * * * motor vehicles' we reach or find a legislative intent to repeal section 400 insofar as it applies to the class in question.
Such repeals by implication are never favored. Fay v. District Court of Appeal, 200 Cal. 522, 254 P. 896; Rexstrew v. City of Huntington Park, 20 Cal.2d 630, 128 P.2d 23. Moreover, it has been held that the rule of repeal by implication cannot [343 P.2d 370] be invoked where the interpretive rule of Civil Code section 23.4 (see infra) applies. Kerrigan v. Maloof, 98 Cal.App.2d 605, 221 P.2d 153.
In addition to internal evidence of legislative intent, we turn to such other constructional aids as are available. Preliminarily, note should be taken of section 7 of the Vehicle Code, reading:
'Effect of Headings. Division, chapter, article, and section headings contained herein shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of any division, chapter, article or section hereof.'
In referring to this, and other sections, in other codes of similar import, 45 California Jurisprudence 2d 672, has this to say: 'Most of the codes themselves provide specifically that the division, chapter, article, and section headings contained therein may not be deemed to govern, limit, modify, or in any manner affect the scope, meaning, or intent of the provisions of any division, chapter, article, or section. The effect of these provisions is to repeal by legislative enactment a firmly established rule of construction.'
In Cavalli v. Luckett, 40 Cal.App.2d 250, 104 P.2d 708, the court held that section 7 precluded the use of headings as constructional aids. The Cavalli case was cited and quoted from with approval in People v. Trout, 137 Cal.App.2d 794, 291 P.2d 83, but, as in the Cavalli case, limited its application to headings. See also, In re Halcomb, 21 Cal.2d 126, 130 P.2d 384.
In an earlier case, People v. Stanley, 13 Cal.App.2d 559, 57 P.2d 146, the court by way of dictum referred to section 7 as applying to the title of acts, instead of headings. In view of the constitutional discussion, infra, the dictum would not seem applicable here.
The title of of an act creating or amending a code is not excluded as a constructional aid by said section 7 of the Vehicle Code. Article IV, section 24, of the California Constitution, provides, in part, that '[e]very act shall embrace but one subject, which subject shall be expressed in its title. * * *' This phrase has been extensively construed, and usually liberally. Mason, California Constitution, Annotated, 1953, Vol. 1, p. 439 et seq.; West's Annotated California Constitution, 1954, Vol. 1, p. 763, et seq.
It is interesting to note that Rule 7 of the Joint Rules of the Assembly and Senate of the California Legislature provides: 'The title of every bill introduced shall convey an accurate idea of the contents of the bill and shall be indicative of the scope of the act and the object to be accomplished. In amending a code section, the mere reference to the section by number shall not be deemed sufficient.'
Courts must look to the title of an act to determine if it violates the last quoted section of the Constitution. Section 7 of the Vehicle Code is no bar to use of titles of acts for constructional purpose.
We turn now to the legislative history of sections 400 and 453 to see if any constructional aids can therein be found. *
Section 453 came into the law as section 144 of the California Vehicle Act, adopted by the 1923 Legislature, Stats.1923, [343 P.2d 371] ch. 266, p. 563. There is no mention of its contents in the general title but the section itself reads as follows: 'Certain provisions of act applicable to vehicles of state, counties and cities. The provisions of this act applicable to drivers of vehicles upon the public highways shall apply to the drivers of all vehicles operated by the state or any political subdivision thereof, or of any incorporated city, subject to such specific exceptions as are set forth in this act.'
In 1935 the Legislature passed an act establishing a Vehicle Code, Statutes 1935, chapter 27. Section 453 thereof read: 'Public Officers and Employees to Obey Code. The provisions of this code applicable to the drivers of vehicles upon the highways apply to the drivers of all vehicles while engaged in the course of employment by this State or any political subdivision thereof or any municipal corporation therein, subject to such specific exceptions as are set forth in this code with reference to authorized emergency vehicles.'
Statutes of 1937, chapter 69, page 167, made some changes. The 1935 act had made the Vehicle Code applicable to state vehicles, subject to specific exceptions in the code as to emergency vehicles. The 1937 act made the code directly applicable to emergency vehicles subject to exemption granted such vehicles by the code. The 1937 act then added section 454, of which more later.
In 1947 the Legislature passed an act entitled 'An Act to amend Sections 453, 607.7, 623.5, 640, and 650.6 of the Vehicle Code, relating to persons and equipment engaged in highway work, declaring the urgency thereof and providing that this act shall take effect immediately.' Stats.1947, ch. 897, p. 2095. This act added subsection (b) reading as follows: '(b) The provisions of this code shall not apply to public employees and publicly owned teams, motor vehicles and other equipment while actually engaged in work upon the surface of a highway, but shall apply to such persons and vehicles when traveling to or from such work.'
In 1951 there was passed an act entitled: 'An act to amend Section 453 of the Vehicle Code, relating to the applicability of the provisions of said code to public employees and publicly owned motor vehicles and other equipment during the installation, removal, repair or maintenance of traffic signs, signals or other traffic control devices.' Stats.1951, ch. 690, p. 1902. This act added to subsection (b) the reference to traffic signs, etc. and added subsection (c).
Turning now to the history of section 400 of the Vehicle Code, we find it originated as section 1714 1/2 of the Civil Code, in Stats.1929, ch. 260, p. 565. The title to the act reads: 'An act to add a new section to the Civil Code to be numbered 1714 1/2 relating to negligence upon the part of officers, agents and employees of the state, counties, cities and counties, municipal corporations, school districts, irrigation districts, districts established by law and political subdivisions of the state of authorizing the issuance of insurance covering such liability.'
The 1929 act is identical with the present section 400 of the Vehicle Code, except for a 1931 amendment adding the State Compensation Insurance Fund as one of the political subdivisions for whom sovereign immunity was waived insofar as negligent operation of a motor vehicle is concerned, [343 P.2d 372] and except for two hereinafter referred to grammatical changes.
Stats.1931, ch. 122, p. 168 is the 1931 amendment referred to above. The title of the 1931 act reads: 'An act to amend section 1714 1/2 of the Civil Code, relating to negligence on the part of state officers, agents and employees of the state, counties, cities and counties, municipal corporations, the state compensation insurance fund, irrigation districts, school districts, districts established by law and political subdivisions of the state, and authorizing the issuance of insurance covering such liability.'
In 1935, when the Vehicle Code was created by the Legislature, section 1714 1/2 of the Civil Code was transferred into the new code as section 400 thereof.
It is quite apparent that the subject matter of section 400 is quite different from that of section 453.
The relevancy of the difference in subject matter is that the Legislature has laid down a guide for the courts to use where there is a conflict between two chapters of the same code. Section 23.4 of the Civil Code (formerly Pol.Code, § 4482) reads: 'If the provisions of any chapter conflict with or contravene the provisions of another chapter of the same title, the provisions of each chapter shall prevail as to all matters and questions arising out of the subject matter of the chapter.'
It follows that section 400 shall prevail as to the matters and questions arising out of the subject matter of liability of governmental agencies for negligent operation of motor vehicles. Section 453 shall prevail as to all matters and questions arising out of the subject matter of the application of the code to public employees.
It thus appears that both the internal evidence contained in the statutes and the applicable constructional aids point to the validity of the plaintiff's position on the question here last under discussion.
We hold that section 453 of the Vehicle Code applies to and concerns only public employees operating teams, motor vehicles and equipment and does not give the state immunity from suit for the negligent operation of vehicles engaged in work on the surface of a highway.
Assuming, arguendo, the position we held, supra, that section 453 applies to public employees only and not to the state, defendant forcibly contends that no conduct which would otherwise be a violation of any provisions of the Vehicle Code can be the basis of an action for the 'negligent operation' of a motor vehicle within the meaning of section 400.
The plaintiffs do not concede the entirety of defendant's position. They quote 6 California Jurisprudence 2d 585, section 131, to the effect that our interpretation of section 453(b) acts to exempt public employees and equipment from the operation of traffic rules while engaged in work upon the surface of the highway. They further contend that this leaves the public body still liable for the injurious results of the general negligence of its employees while operating public vehicles in the manner in question, even though they cannot be said to be violating any of the express traffic rules contained in the Vehicle Code.
An interesting question is posed. Violation of safety sections of the Vehicle Code is negligence per se. (35 Cal.Jur.2d 502.) A public employee is excused, by statute, from obeying a safety provision of the Vehicle Code. The employee negligently performs an act that, amongst other things, would be a violation of the Vehicle Code. Is the negligence actionable?
The defendant cites no cases, simply making the flat statement above referred to. Plaintiffs found one case that is squarely in point. In Rebmann v. Heesch, 227 Iowa 566, 288 N.W. 695, a laborer on a highway construction project was backed into and run over by a cement mix truck, which backed off a highway in use onto the new construction work and ran over the laborer. The defense was made that the rules of the road requiring a signal or horn under certain circumstances and other [343 P.2d 373] rules of the road did not apply during work on the surface of the highway (see § 264 of ch. 134 of the Acts of the 47th Gen. Assem., Iowa, I.C.A. § 321.233). The Iowa Supreme Court said at page 700 of 288 N.W., 'Defendant's counsel also contended that under Section 264 of Chapter 134 of the Acts of the 47th General Assembly, the defendant was exempted from using a horn on the road under construction. * * *
'While said section does exempt those referred to therein, from certain requirements specified in the chapter, it does not release such persons from the use of ordinary care nor absolve them from their negligence, nor was it ever, in our judgment, so intended by the legislature. If under the facts in this case, ordinary care required the defendant to sound his horn, while working on this road under construction, or to give some warning to the plaintiff, said Section 264 will not excuse his failure to do so.'
Headnotes 2 and 3 of the opinion at page 695 of 288 N.W., state the matter a little more succinctly as follows: 'The provision of Motor Vehicle Law that it shall not apply to persons and motor vehicles while actually engaged in work on surface of highway did not exempt truck driver from using horn while on used highway, from which he was backing onto highway under construction, if required in exercise of ordinary care for safety of laborer under circumstances,' and 'The provision of Motor Vehicle Law that it shall not apply to persons actually engaged in work on surface of highway does not release them from use of ordinary care, nor absolve them from liability for their negligence.'
It would seem, in logic, that the rule in the Rebmann case is the correct one. The rule is really foreshadowed in Raynor v. City of Arcata, 11 Cal.2d 113, 77 P.2d 1054. The case was cited by plaintiffs as a necessary precedent to hold the state liable even though a statute frees the employee from liability. In the Raynor case the employee was the fire chief. Section 401 of the Vehicle Code expressly holds that such employee is not liable 'for civil damages' if performing his emergency duties. Section 454 of the Vehicle Code and the Raynor case spell out what is and is not such negligent operation of an emergency vehicle as to make the public employer liable.
Section 453(b) does not expressly free the public employee from civil liability for damages, as section 401 does the emergency driver. The employees in the instant case were not made parties defendant so we make no ruling as to whether or not they would be liable.
In any event, the Legislature has not gone as far in freeing the employees working on the surface of the highway from liability as it has the emergency vehicle driver. Nor has the Legislature spelled out what is not negligent operation of motor vehicles working on the highway as it has for emergency vehicles. The rationale of the Raynor case is that the employer is liable for any negligent operation of a motor vehicle that is not specifically labeled as a permitted method of operation.
It follows from the above that the state is liable for the negligent operation of publicily owned teams, motor vehicles and other equipment while actually engaged in work on the surface of a highway.
The plaintiffs seek to get around defendant's position by a showing that there was negligent operation of the bulldozer and the truck outside of any provision of the Vehicle Code. (A bulldozer is a motor vehicle under the Vehicle Code. Sections 31 and 32, and Behling v. County of Los Angeles, 139 Cal.App.2d 684, 294 P.2d 534.)
It is the plaintiffs' position that the entire combination of situations created a natural trap. The failure to learn of this natural trap, alone, would not have damaged the Yarrows; nor would the operation of this dozer a foot or so over the white line have necessarily constituted 'negligent operation' standing alone, but the combination of the physical surroundings, the physical and mechanical properties of the dozer, and the failure to warn, made [343 P.2d 374] the operation of this dozer then and there a 'negligent operation.' Or, to put it in reverse, all these other factors would have caused no harm, 'but for' the operation of the dozer into the position obviously recognized by Clayton as dangerous. Brandenburg v. Pacific Gas & Electric Co., 28 Cal.2d 282, 285, 169 P.2d 909.
Acts outside the Vehicle Code have been held to be 'negligent operation' of a vehicle in California, within Vehicle Code, section 400; dropping a bulldozer scraper blade on a man's hand (Behling v. Los Angeles County, supra, 139 Cal.App.2d 684, 294 P.2d 534); shaking a dump truck to empty it while a county jail inmate was on board. Marshall v. County of Los Angeles, 131 Cal.App.2d 812, 814, 281 P.2d 544.
In the Marshall case the court said: 'This Court is unable to agree with the argument of the county that the truck was not in 'operation' when the accident occurred, as that word is used in the statute.
'In the enactment of Section 400 of the Vehicle Code the state imposed liability for damages when the exercise of governmental functions in the operation of motor vehicles results in injury to its people. Lossman v. City of Stockton, 6 Cal.App.2d 324, 44 P.2d 397.
'It was designed to end the commonlaw rule of governmental non-liability so far as the operation of motor vehicles by public agenies is concerned. Willoughby v. Zylstra, 5 Cal.App.2d 297, 42 P.2d 685.
'To be in operation within the meaning of the law the vehicle must be in a 'state of being at work' or 'in the active exercise of some specific function.' Chilcote v. San Bernardino County, 218 Cal. 444, 23 P.2d 748, 749.
'Applying these rules, it seems clear that the dump truck was in operation within the meaning of Section 400 of the Vehicle Code. Therefore the complaint states a cause of action against the county of Los Angeles, and the driver of the truck.' 131 Cal.App.2d at pages 814-815, 281 P.2d at pages 545-546.
In view of our interpretation of section 453(b), supra, it probably is not necessary to decide this last point. However, we have not been furnished with the trial court's instructions to the jury so we do not know the theory thereof. We hold that the record contains facts upon which the jury could have found negligence both within and outside of the Vehicle Code.
The order granting a new trial is reversed with instructions to the trial court to enter judgments on the verdicts of the jury.
BRAY, P. J., and FRED B. WOOD, J., concur.
We may and do take judicial notice of the fact that legislative bills during the course of consideration and action by the Senate and Assembly of California do not, under the modern practice, bear marginal notes. The fact that they are added later is indicated by certain sections of the Government Code. Section 9765 declares that 'preparation of the statutes shall include the making of an index, marginal notations, and statutory record * * *.' (Emphasis added.) Section 9763 states that 'The Department of Finance shall direct the preparation of the statutes of each session. * * *' Section 9767 states that the State Printing Office shall print at least 1,200 copies of the statutes of each session 'prepared at the direction of the Department of Finance.'
We have not been informed as to exactly when the Legislature ceased having the marginal notes on the bills that it considered. The leading case of Betten-court v. Sheehy, 157 Cal. 698, 109 P. 89, considered a statute passed in 1874. The legislative history of said section 9765 does not clarify the point. However, it is clear that marginal notes should not be used unless there is proof of the fact of legislative consideration thereof. There was no such proof in the instant case.