Fibreboard Paper Products Corp. v. East Bay Union of Machinists, Local 1304 (227 Cal. App. 2d 675, 1964)

MOLINARI, J.

This is an appeal by five defendants from a part of the judgment entered upon a jury verdict awarding plaintiff damages based upon alleged tortious conduct of said defendants as the result of the establishment of a picket line.

Factual Background

We shall hereinafter state the pertinent facts as they relate to the particular questions and issues presented on this appeal. Preliminarily, however, we set out the following factual background.

Fibreboard is a manufacturer of roofing, shingles, paint, insulations, floor coverings and other products at a plant located in Emeryville in California. In July 1959 over 800 persons worked in this plant, of whom more than 70 were involved in maintenance work. Fifty of the maintenance men were members of and represented by the Union. The production workers in the plant were represented by six different unions other than the Union, and the warehousemen employees were represented by the International Longshoremen’s & Warehousemen’s Union, hereinafter referred to as the “ILWU.” On July 31, Fibreboard discharged all of its maintenance men, including those represented by the Union, because it had decided to contract the plant’s maintenance work to an independent contractor, the Fluor Maintenance Company. In protest against the discharge the Local authorized and established a picket line at Fibreboard’s Emeryville plant on July 31. The said picketing was thereafter authorized and sanctioned by the International.

On August 3, Fibreboard filed its complaint for injunction in the present action and a temporary restraining order was issued by the superior court limiting the number of pickets and enjoining defendants from obstructing or interfering with ingress and egress of employees and others, and from intimidating, coercing, threatening or committing property damage or bodily harm or violence on persons attempting to enter or leave Fibreboard’s plant. The restraining order was served on Berber and Stumpf, and the pickets and other members of the Local were informed of the order and instructed to comply with it. Beginning on August 7, and thereafter during the month of August contempt proceedings alleging 26 counts of violations of the temporary restraining order were filed by Fibreboard. Contempt findings were made against the Local, and one of its members, for activities occurring on August 10th; against Area, and another member of the Local, and the Local itself, for activities occurring on August 19th; and against Arca, Ferber, and two other individuals, and the Local itself, for activities occurring on August 21st. All other contempt counts were dismissed.

On August 24, a preliminary injunction was issued on the same terms as the temporary restraining order, and on September 4, the preliminary injunction was modified to enjoin all picketing. A supplemental complaint was thereafter filed by Fibreboard alleging that the acts complained of in its complaint for injunction continued from August 4th to September 5th, and praying for compensatory and punitive damages for its loss of business, profits and continuing expenses allegedly caused by defendants’ acts. In addition to answers denying the essential allegations of the complaint and supplemental complaint, defendants filed an amended answer further answering the complaint, and alleging three affirmative defenses. The first defense alleged the existence of a collective bargaining agreement between Fibreboard and the Union and a breach thereof by Fibreboard in unlawfully discharging the maintenance employee members of the Union; the second, that Fibreboard “does not come into equity with clean hands’’; and the third, that the acts complained of in the complaint and supplemental complaint were caused and induced by Fibreboard in concert with others by assaulting and otherwise molesting the duly stationed pickets and by the use of “ ‘strikebreakers.’ ” Thereafter, and prior to the commencement of the trial, and on motion of Fibreboard, the aforesaid first affirmative defense was ordered stricken by the court below.

The cause proceeded to trial before a jury. During the course of the trial, defendants moved to amend their answer to add four additional affirmative defenses, designated, respectively, as the fourth, fifth, sixth, and seventh defenses. The court granted the motion as to the seventh defense which alleged, in essence, that if the acts complained of in the complaint and supplemental complaint occurred at all, they were provoked and induced by Pibreboard by reason of fraudulent representations made by Pibreboard to the Union. It was asserted that representations were made by Pibreboard that it intended to meet with the Union and negotiate a collective bargaining agreement to be effective on August 1, that it did not intend to so do, and that the Union relied upon such representations to its detriment without being permitted to protect its position in relation to Pibreboard and with reference to the renewal provisions under the collective bargaining agreement then in existence.

The jury returned its verdict in favor of Pibreboard against all defendants for compensatory damages in the sum of $285,000, and for punitive damages against the International in the sum of $20,000 and against the Local in the sum of $4,000. The action was continued for the trial court’s consideration of the question as to whether a permanent injunction ought to be granted. The court thereafter entered judgment upon the jury’s verdict, and ordered in said judgment that Pibreboard was not entitled to a permanent injunction against defendants, or any of them, and that the modified preliminary injunction theretofore issued be vacated and dissolved.

The instant appeal by defendants is from said judgment, excepting that portion denying a permanent injunction and vacating and dissolving the preliminary injunction. The questions raised on appeal by defendants are set out in the headings preceding the several subjects hereinafter discussed in this opinion.

Were the Damages Awarded Pibreboard Proximately Caused by the Tortious Conduct of Defendants 1

Yes. Defendants contend that although there was evidence of “incidents” on or near the picket line from which the jury could have arrived at the conclusion that some of the behavior on the picket line was tortious, there was no causal connection between such conduct and the damages suffered by Fibreboard. The assertion is accordingly made by defendants that in the instant case the determination of such causal connection is a question of law and not one of fact. The basis of defendants’ argument is that Fibreboard’s losses do not stem from the inability to “produce” goods because of the picket line, but from the inability to “move” goods through the warehousemen who were legally and properly observing the picket line. Fibreboard’s response to this argument is that its damages are predicated upon the loss of sales resulting during the period the plant was closed because of the picket line, and that such losses resulted not only because the production workers “stayed out” during such period, but also because there is ample evidence in the record from which the jury could conclude either that the warehousemen would have crossed the picket line if it had been safe to do so, or, if they had not crossed the picket line because of union principles, their employment would have been terminated and the work given to others. Accordingly, Fibreboard argues that the question of causation was one of fact for the jury whose determination, under the state of the record, may not be disturbed by the appellate court because of the limitations placed upon its reviewing powers insofar as questions of fact are concerned.

Turning to the record in this case, we find substantial evidence of tortious behavior on the picket line. Within an hour after the Local established the picket line cars attempting to enter the plant were halted. Robert Baldwin, Jr., personnel director of the plant, took a picture of a group of men congregating about the entrance of the plant. He was approached by Area and other pickets, forcibly relieved of his camera and was knocked down in the process. On August 1st, R. C. Thumann, Fibreboard’s director of industrial relations, and two other managers were refused entry into the plant by Area, necessitating police intervention to effect entry. On August 2, production workers, who were members of the Pulp, Sulphide and Paper Mill Workers Union, coming to work the “graveyard shift” did not cross the picket line and were sent home by their international representative, Bradford, after he was told by Ferber that if Bradford’s members attempted to go to work “it wouldn’t be a peaceful picket line.”

The first regular work day after picketing began was on Monday, August 3d. In the morning of that day, approximately 25 to 30 ears were stopped by the pickets, resulting in a long caravan of automobiles; cars were shaken up and down and then were permitted to enter the premises; salaried workers were stopped for a period of time and then were permitted to enter; and one Marcos, financial secretary of the Oil, Chemical and Atomic Workers Union, attempted to cross the picket line at the insistence of his members but decided it was unsafe when he was told by a picket that “ ‘ [eventually, you will get the hell beat out of you.’ ” On the same day and on the day following, the international representative of the Pulp and Sulphide Workers, Carol Howes, sought permission to have his men cross the picket line, but was told that there would be violence if his men went through the line. Howes testified that he and his men experienced threats and intimidations and that they were told that if they crossed the line they should think about their families and their homes. It was further testified by Howes that if he could have taken his men safely through the line he would have done so. Lawrence Alvers, a varnish department foreman and president of Local 1101 of the Paint Maker’s Union, attempted to go through the picket line on August 3, and was told that if he did go through the line he would get his head “bashed in.” Alvers did not enter the plant during the period of the shutdown because, as he testified, “there was too much violence there.” The Printing Specialties Union representative, Mr. Farrow, told Stumpf that his men wanted to return to work, but was told by Stumpf that they would be “on their own” if they went through the line.

Bradford also testified that on August 10th, he was told by Stumpf that if his men returned to work their front porches might be blown off or their ears overturned; that when he started to walk across the street to confer with Thumann he was accosted by Lincoln Beck of the Local and pushed 15 or 20 feet back up the street; and that Beck later drove his automobile down the street toward him and that he had to jump behind a ear to avoid being struck.

During the days of August 19, 20 and 21, the following occurred: General Foreman Jochum’s ear was stopped; he was struck and the windshield of his car was smashed and broken. Design Foreman Paul Stearns’ car was similarly handled; he was also struck while sitting in the ear and the rear window of his car was broken. Stumpf threw an object at a car attempting to enter the plant and Berber hit the window of a car with his fist. Two attorneys representing Pibreboard were battered when they tried to enter the plant on foot, and Area and Beck were arrested. Prank Remley, one of the millwrights hired to do the maintenance work by Fluor Maintenance Company, was beaten and kicked by six or eight men and sustained injuries, including broken ribs, nose and tooth, which caused him to be hospitalized and off work for six or seven weeks. Area then drove his truck into a car filled with millwrights, whereupon a group of men immediately overturned the car and injured millwright Luther Sehockey. None of the other production workers made any attempt to return to work until August 31. On that day the Pulp and Sulphide Workers returned to work under police escort. Their union representative, Bradford, testified that at that time Stumpf and Berber told him “that some place or somewhere I was going into a dark place or into a dark alley, and if it was the last thing they ever did, they were going to get me. ”

William Burke, business agent for the ILWU, was called as a witness for defendants. He testified, on direct examination, that it was the policy of the ILWU not to cross picket lines and that a few days before the picketing took place, he advised Thumann that the warehousemen would not cross the picket line because of this policy. He also testified that members of his union did not cross the picket line from July 31 through September 4, except for the plant protection personnel who are permitted to cross picket lines. Burke testified, further, that he was in the general picketed area almost daily between 7 and 8 a.m. because some of his men would come down to find out if the picket lines were still up or if the strike was still in progress. He also stated that on other occasions when he was in the general area he “would stop by to see how things were going.” On cross-examination, Burke identified a contract between his union and Distributors’ Association, a group of employers, of whom Pibreboard was one. It appears that prior to its being identified, counsel for defendants interposed an objection to its admission on the ground that it was not binding on defendants. The trial court did not then rule on the objection but suggested that the contract be identified. Burke was then asked certain foundational questions as to whether the subject document was a true and correct copy of the contract between the ILWU and Fibreboard in existence during July, August and September of 1959. Upon the witness’ affirmative answer, the offer was renewed. No objection was interposed by defendants. The contract was thereupon admitted in evidence. Plaintiff’s counsel then read a portion of section 14 of said contract into the record, a part of which consisted of the following language: “ ‘Any action of the employees leaving jobs for their own protection in eases of a legally declared strike by some other union directly working on the job, if such strike is sanctioned and approved by the labor body or council having jurisdiction, shall not constitute a violation of this Agreement. ’ ” Upon request of the witness Burke, plaintiff’s counsel then read the following paragraph of the contract into the record: “ ‘The Union agrees that it will not support strikes or picket lines by unions not parties to this Agreement unless such union’s right to organize peacefully has been interfered with by the Employer, or unless it has been denied the means of peaceful settlement of its dispute. ’ ”

Burke testified further, on cross-examination, that during the month of August, Thumann asked the warehousemen to return to work and to cross the picket line, to which request the ILWU replied by a letter signed by him and two other business agents. The letter was shown to Burke and identified by him. The witness testified that the letter quoted, among others, the two paragraphs of the contract previously read into the record by plaintiff’s counsel, and in this respect stated: “I stated we would have the right to respect a picket line without breach of contract, and quoted the paragraph above it... which refers generally to leaving the job for self-protection. ” Burke was then queried on cross-examination as to what the words “ ‘for their own protection’ ” meant to him. He replied: “Well, it could be protection of body, protection of conscience, protection of feelings, protection of their social standing in the community.” Burke testified, further, that the ILWU will cross a picket line to perform work within its jurisdiction if it is “cleared” by the striking union.

The record discloses, relative to the aforementioned telephone conversation between Burke and Thumann, that Thumann testified that Burke did not tell him the warehousemen would not cross the picket line, but that Burke stated “he didn’t know what his boys would do.” On rebuttal, Thumann testified that if the warehousemen had refused to cross the picket line solely on the union principle that they never crossed picket lines, he would have required them to return to work, and if they failed to so do he would have employed others. He stated, further, that there were other workers available in the Bay Area to do this type of work.

The function and duties of the warenousemen, as described by witnesses presented by both sides, consisted of the unloading of raw materials, used in the various manufacturing processes, when delivered by trucks and trains; to store these materials until needed for production; to move such materials and finished products within the plant; and to ship out and load on trucks and trains the finished products for customer needs.

The only witness produced by Fibreboard to establish the extent of its damages was its assistant comptroller, Ben H. Rich, a certified public accountant. Rich testified as to the type of products manufactured in the Emeryville plant, and that certain of the products produced by Fibreboard were only manufactured at the Emeryville plant. Rich also testified that there was no production at the Emeryville plant during the month of August and the first week of September, except for some production in the floor covering plant. It was his testimony that he computed the profits lost by reason of the shutdown of the Emeryville plant from July 31 until September 7 upon the basis of estimate of sales, and that this loss amounted to $554,000. The computation of this loss was arrived at by Rich as follows: The estimated sales from the five products produced at the Emeryville plant had there not been a shutdown, based upon a five-year seasonal sales pattern, should have been $3,548,000; from this sum was deducted the sum of $3,094,000 manufacturing cost estimate based upon the most recent manufacturing experience, i.e., the month before the shutdown, leaving an estimated profit of $454,000. To this last figure was added a loss of $100,000 resulting from what Rich referred to as “actual results,” making the total loss of profits the aforesaid sum of $554,000. The ‘ ‘ actual results ’ ’ were arrived at by him as follows: The actual sales of said five products were computed for the period of August and September 1959 and amounted to $2,539,000, from which was deducted the actual production cost for said period, amounting to $2,639,000, thus leaving a loss of $100,000. Rich testified that he used the August and September period because these were the months affected by the shutdown; that the shutdown ran into September and the books are closed on a monthly basis; and that in September there was a considerable “makeup” of sales which were included so as to give them full credit in the computation. The seasonal sales pattern method was described by Rich as a method by which the percentage of sales which would fall in August and September were determined upon the basis of experience for the five years, 1956 through 1960, omitting 1959. Rich described several other methods of estimating loss, whereby the estimated loss varied from $454,000 to $595,000, but stated that the method by which the $554,000 loss was computed was the more accurate because it utilized the broadest base, the five-year base.

On cross-examination, Rich testified: That when he referred to “no sales” being made during the period of shutdown he meant that no finished goods moved out of the plant pursuant to an order which had to be filled; that as of July 31 there was an inventory in all of Fibreboard’s plants; that during the month of August no goods were shipped from the Emeryville plant; that “ [i] f goods could have been shipped, they would have resulted in sales ... if we have no shipments, we have no sales ’ ’; and that there was no production in the Emeryville plant in the month of August.

Defendants do not attack, on this appeal, the method utilized by Fibreboard in computing loss of profits; nor do they claim that the damages thus established were not in fact sustained. They do contend, however, that there is no causal connection between these damages and whatever tortious conduct may be attributed to their activities on the picket line. The thrust of their argument is that Fibreboard’s damages are predicated solely on lost sales, and that even if goods had been produced during the time the Emery-ville plant was picketed, sales would not have been realized from such production because the warehousemen were not working out of respect for the picket line which they were legally entitled to recognize under the terms of their contract with Fibreboard. In other words, say defendants, the sales lost were occasioned by the failure of the warehousemen to move the finished goods and not because of lost production. It should be noted here that while goods were not produced during the shutdown period and therefore finished goods were not added to inventory, there is nothing in the record to show that the inventory on hand on July 31 was not adequate to meet orders for the months of August and September, the two months during which Fibreboard claims loss of profits. Under the evidence adduced, the nonproduction occasioned by the shutdown at the Emeryville plant could only be related to the months of August and September. Fibreboard’s damages are predicated upon a loss computed on the basis of the net profit upon estimated sales from all plants, had there not been a shutdown, as compared to the actual net loss realized from sales made from such plants during the months of August and September. There was no evidence presented by Fibreboard as to the nature and extent of the nonproduction during the months of August and September, nor of the effect of such nonproduction upon future sales. It is apparent, under the state of the record, that Fibreboard’s damages are predicated upon the inability to consummate sales in August and September. Such sales contemplate the existence of such goods in inventory, or the production of said goods to make up such inventory, plus the shipment of such goods to the customer. We are satisfied that there is substantial evidence establishing that defendants’ tortious conduct prevented the production workers from producing goods in the Emeryville plant during the months in question. However, in the light of Fibreboard’s basis for the computation of its claimed damages, we must also consider whether any tortious conduct on the part of defendants prevented the shipment of goods from existing inventory or from such inventory as replenished by production. As disclosed by the record, the movement of raw materials for production within the plant, the movement of finished goods within the plant and the shipment of such goods to customers were the function and responsibility of the warehousemen. Our inquiry, therefore, is now directed to whether any tortious conduct on the part of defendants prevented or impeded the warehousemen from performing that duty.

In reviewing the sufficiency of the evidence, we deem it expedient to call to mind certain well-established principles defining the scope of our review. These are: “ [A] 11 conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible”; (2)‘‘when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury”; and (3) when two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the jury. (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429 [45 P.2d 183]; Florez v. Groom Development Co., 53 Cal.2d 347, 354 [1 Cal.Rptr. 840, 348 P.2d 200] ; 3 Witkin, Cal. Procedure, § 84, pp. 2245-2246.) Consonant with these principles ‘‘we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom,” (Overton v. Vita-Food Corp., 94 Cal.App.2d 367, 370 [210 P.2d 757]) because these matters rest within the province of the trier of fact. (Code Civ. Proc., §§ 2061, 1879, 1847; English v. Drumwright, 195 Cal.App.2d 809, 813 [16 Cal.Rptr. 265]; People v. Seeker, 179 Cal.App.2d 823, 827 [4 Cal.Rptr. 334].) Our cognizance of the function of the trier of fact requires that we recognize the rule that upon the trial of a case the jury is to find not only the facts but the inferences from them, if any may properly be drawn. (People v. Berti, 178 Cal.App.2d 872, 876 [3 Cal.Rptr. 51]; Rovegno v. San Jose K. of C. Hall Assn., 108 Cal.App. 591, 596 [291 P. 848].) An inference is defined in section 1958 of the Code of Civil Procedure as follows: “An inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect.” An inference arises when it is founded: “(1) On a fact legally proved; and (2) On such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature.” (Code Civ. Proc., § 1960.) An inference is a recognized class of indirect evidence. (Code Civ. Proc., § 1957.) Accordingly, if a finding is based upon a reasonable inference it will not be set aside by an appellate court unless it appears that the inference was wholly irreconcilable with the evidence. (General Petroleum Corp. v. City of Los Angeles, 42 Cal.App.2d 591, 595 [109 P.2d 754]; Thayer v. Pacific Elec. Ry. Co., 55 Cal.2d 430, 438 [11 Cal.Rptr. 560, 360 P.2d 56]; Larson v. Solbakken, 221 Cal.App.2d 410, 416 [34 Cal.Rptr. 450]; People v. Santo, 43 Cal. 2d 319, 326-327 [273 P.2d 249]; see 18 Cal.Jur.2d, Evidence, §62, p. 483.)

We believe that the jury in the instant case had the right to reasonably infer that the warehousemen remained away from work because of the threats, intimidation and violence at the picket line. There is direct evidence that the warehousemen did not cross the picket line from July 31 to September 4. While there is no direct evidence of any threats, intimidation or violence directed to or perpetrated upon the warehousemen, there is ample direct evidence in the record of violence upon members of other unions and personnel employed by Fibreboard. The nature, frequence and extent of this tortious conduct was such that it was reasonable for the jury to infer that the warehousemen were aware of it. In the face of the evidence adduced, the jury, as the trier of fact, was entitled to reject Burke’s testimony that he saw no violence. We do not think it necessary that there be evidence that the warehousemen physically attempted to cross the picket line and thus risk violence. The jury was entitled to infer under the circumstances, we believe, that because violence was being perpetrated on others who attempted to cross the picket line, the warehousemen were under the apprehension that such tortious conduct would likewise be inflicted upon them if they made the attempt.

Fibreboard contends that the jury was also entitled to consider the union contract between ILWU and Fibreboard, the aforesaid letter from ILWU to Thumanu, and Burke’s testimony with respect thereto as evidence that the warehousemen remained away from work for their own protection.

Addressing ourselves, first, to the contract, we find that it was received in evidence without objection. Although, when first offered, it was objected to on the ground that it was not binding on defendants, the trial court did not rule on the objection, but suggested instead, that a foundation be laid with respect to its identification. Counsel for defendants did not request a ruling nor did he press his objection when the offer was subsequently renewed. Under the circumstances the objection was abandoned and waived. (See Goodale v. Thorn, 199 Cal. 307, 315 [249 P. 11]; Campbell v. Genshlea, 180 Cal. 213, 220 [180 P. 336]; People v. Staver, 115 Cal.App.2d 711, 724 [252 P.2d 700]; Witkin, Cal. Evidence, § 720, pp. 749-750.) Of paramount significance, moreover, is defendants’ failure, on this appeal, to assert in their briefs or in oral argument the assignment that the trial court erred in admitting the subject contract in evidence. To the contrary, defendants in their briefs rely upon the contract and contend that the jury was entitled to infer that pursuant to its provisions defendants remained away from work because of union principle. It is apparent, therefore, that if the jury was entitled to draw the inference urged by defendants it was likewise entitled to draw the inference that by reason of the contractual provisions defendants remained away from their work because of “their own protection.” The jury, as the trier of fact, was not compelled to accept Burke’s explanation that the warehousemen remained away solely because of union principle.

Directing our attention to Burke’s testimony, relative to the contents of the letter from the ILWU to Thumann, we note that it too was received into evidence without objection. Defendants, in their answer to Fibreboard’s petition for a rehearing argue that this testimony does not contain prior inconsistent statements, and that, therefore, it is not of impeaching character. This position is the same as that urged by defendants in their briefs on appeal, the gist of their argument being that Burke’s uncontroverted testimony showed that union principle, and not fear of violence, led the warehousemen to respect the picket line. It appears, however, that a contrary position is taken by defendants in their supplementary brief after the argument on rehearing. The position there taken is that the effect of the subject evidence was merely to discredit Burke as a witness, and, presuming that the jury disbelieved him, it was justified in disbelieving his testimony that the warehousemen did not cross the picket line because of union principle. Accordingly, they assert it was not competent for any other purpose, and, in particular not competent as positive evidence that the warehousemen did not cross the picket line because of fear or threats of bodily harm or violence. The principle relied upon by defendants is that declared by the rule that the prior inconsistent statement of a witness, not a party to the action, is admissible only for purposes of impeachment and is not substantive or affirmative evidence sufficient to sustain a finding. (Albert v. McKay & Co., 174 Cal. 451, 456 [163 P. 666]; People v. Orcalles, 32 Cal.2d 562, 572 [197 P.2d 26]; Wilson v. Foley, 149 Cal.App.2d 726, 731 [309 P.2d 97]; Witkin, Cal. Evidence, § 662, pp. 701-702.)

In order that a witness’ present testimony be subject to impeachment, the prior statement must be clearly inconsistent; “But inconsistency in effect rather than contradiction in express terms is the test.” (Witkin, Cal. Evidence, § 664, p. 702; see McCormick, Evidence, §34, pp. 63, 64; 3 Wigmore, Evidence, § 1040, p. 725; and see Froeming v. Stockton Electric R.R. Co., 171 Cal. 401, 408 [153 P. 712, Ann. Cas. 1918B 408].) Applying this test to the present case it appears that the general purport of the subject testimony was to contradict Burke’s testimony by showing that while he testified that the warehousemen remained away from work solely on union principle, the subject letter indicated that they did not cross the picket line not only because of such principle but also because of fear of violence. We are not, however, concerned in the instant case with the rule under discussion because the testimony in question was admitted without objection and without limitation. Whether we consider such testimony as consistent or inconsistent the effect is the same. In either event the testimony was hearsay to which no objection was interposed. Accordingly, we need not consider whether it was admissible under an exception to the hearsay rule. Material and relevant evidence which is technically inadmissible under an exclusionary rule, if offered and received without objection, may be considered in support of a judgment. (Grocker-Anglo Nat. Bank v. American Trust Co., 170 Cal.App.2d 289, 299 [338 P.2d 617]; Powers v. Board of Public Works, 216 Cal. 546, 552 [15 P.2d 156]; see Witkin, Cal. Evidence, § 723, p. 751.) If the testimony be deemed consistent it would have been subject to exclusion upon objection, but in the absence of objection it constituted substantive and affirmative evidence. (See Froeming v. Stockton Electric R.R. Co., supra, p. 408; People v. Collum, 122 Cal. 186,188 [54 P. 589]; Estate of O’Connor, 118 Cal. 69, 70 [50 P. 4]; People v. Burns, 16 Cal.App. 416, 423 [118 P. 454].) On the other hand, if treated as an inconsistent statement the testimony would have properly been admitted as an exception to the hearsay rule solely for the purposes of impeachment. In the latter instance, it was incumbent upon defendants to seek to restrict the use of such testimony for that specific purpose. Their failure to do so left Burke’s testimony with respect to the letter in evidence for all purposes. (Wicktor v. County of Los Angeles, 177 Cal.App.2d 390, 405 [2 Cal.Rptr. 352]; Hatfield v. Levy Brothers, 18 Cal.2d 798, 810 [117 P.2d 841]; People v. Hawkins, 177 Cal.App.2d 714, 719 [2 Cal.Rptr. 524]; Witkin, Cal. Evidence, §115, p. 138; §709, p. 741.) Under the circumstances, therefore, the jury was entitled to weigh, consider and reconcile this testimony with the other evidence in the case, and to draw the inference that the warehousemen did not cross the picket line because of fear of violence.

As concerns Burke’s explanation of the meaning of the words “for their own protection,” his testimony in that regard likewise went into the record without objection. No contention is made on this appeal that the admission of such evidence does violence to the parol evidence rule. Accordingly, the evidence may be considered by us in ascertaining whether inferences can be drawn from the agreement between the ILWU and Fibreboard as to the meaning of the provisions alluded to and the contracting parties’ intention. (Pao Ch’en Lee v. Gregoriou, 50 Cal.2d 502, 505-506 [326 P.2d 135]; Santa Clara Properties Co. v. R.L.C., Inc., 217 Cal.App.2d 840, 849-850 [32 Cal.Rptr. 333].) Burke testified that the words in question “could be protection of body, protection of conscience, protection of feelings, protection of their social standing in the community.” It was, therefore, susceptible of the inference that in view of the provisions of the contract the warehousemen did not cross the picket line because of fear of violence.

Adverting to Thumann’s rebuttal testimony that if the warehousemen had based their refusal to cross the picket line solely upon union principle, he would have required them to return to work, and if they failed to do so, he would have employed others, we are of the opinion that this testimony was speculative, conjectural and conclusionary. An objection on that ground was interposed by defendants but was overruled. The objection should have been sustained. However, no assignment of error is made by defendants on this appeal. To the contrary, it is urged by defendants that this testimony was directly contrary to Thumann’s prior testimony and that it has no probative value. Fibreboard concedes, in its petition for rehearing that this testimony does not establish threats or violence, but that its purpose was to show that if violence had ceased, and the production unions had returned while the ILWU had based its return to work solely on union principle, the plant would have continued to operate. Under the circumstances, the probative effect of this testimony, if any, was for the jury’s determination.

Turning to the question of damages in the present case, our inquiry is directed to whether the damages proved by Fibreboard through the testimony of Rich were prnximately caused by any tortious acts of defendants. The gravamen of Fibreboard’s complaint, insofar as damages are concerned, is that it “lost business and profits” and “incurred continuing costs in the maintenance of its said plant and of its said business” during said period by reason of its being prevented by the conduct of defendants “from operating its plant and producing its usual commodities. . . .” Rich testified that the continuing costs, which he itemized, amounted to $185,000 and that this sum was reflected in the computation of lost profit amounting to $554,000. No proof was adduced as to the nature and extent of the commodities which were not produced during the period in question. The damages claimed by Fibreboard were predicated solely upon a loss in sales during the shutdown period based upon goods they were unable to “move out” or “ship” during said period. While there is evidence that goods were not produced during said period, there is also evidence that there was an inventory of goods on hand at the commencement of the picketing. The extent of this inventory was not established. It may well be that there was ample inventory to satisfy orders during the shutdown period had Fibreboard been able to ship such goods. There is no evidence, moreover, whether goods which might have been produced during said period would have been moved out or shipped during said period, and, if so, to what extent.

The measure of damages in this state for the commission of a tort, as provided by statute, is that amount which will compensate the plaintiff for all detriment sustained by him as the proximate result of the defendant’s wrong, regardless of whether or not such detriment could have been anticipated by the defendant. (Civ. Code, § 3333.) It is well established in California, moreover, that such damages may include loss of anticipated profits where an established business has been injured. (Natural Soda Products Co. v. City of Los Angeles, 23 Cal.2d 193, 199 [143 P.2d 12]; Hoag v. Jenan, 86 Cal.App.2d 556, 563 [195 P.2d 451]; Guttinger v. Calaveras Cement Co., 105 Cal.App.2d 382, 387 [233 P.2d 914]; Yates v. Kuhl, 130 Cal.App.2d 536, 542 [279 P.2d 563].) The basis of this principle is that where the operation of an established business is prevented or interrupted by a tort, damages for loss of prospective profits, that otherwise might have been made from its operation, are ordinarily recoverable for the reason that their occurrence and extent may be ascertained with reasonable certainty from the working experience of the business, from the past volume of business, and other provable data relevant to the probable future sales. (Grupe v. Glick, 26 Cal.2d 680, 692-693 [160 P.2d 832] ; Hoag v. Jenan, supra, at p. 563; Gainer v. Storck, 169 Cal.App.2d 681, 687 [338 P.2d 195]; Edwards v. Container Kraft Carton etc. Co., 161 Cal.App.2d 752, 759-761 [327 P.2d 662].) Concomitant with this principle is the rule that the award for damages for loss of profits depends upon whether there is a satisfactory basis for estimating what the probable earnings would have been had there been no tort. (Natural Soda Products Co. v. City of Los Angeles, supra, at p. 199; Guttinger v. Calaveras Cement Co., supra, at p. 387; Edwards v. Container Kraft Carton etc. Co., supra, at pp. 759-761.) If no such basis exists, it may be necessary to deny such recovery, but if, however, there has been an operating experience sufficient to permit a reasonable estimate of probable income and expense, damages for loss of profits are awarded. (Natural Soda Products Co. v. City of Los Angeles, at p. 199; Edwards v. Container Kraft Carton etc. Co., supra, at pp. 759-761.) While the courts have often noted the difficulty of proving the amount of loss of profit, they have also recognized that a defendant cannot complain if the probable profits are of necessity estimated, the rationale being that it was the defendant himself who prevented the plaintiff from realizing profits. (See Natural Soda Products Co. v. City of Los Angeles, supra, at p. 199.) Accordingly, it is clear from the cases that the general principle inherent in the recovery of damages for loss of prospective profits is that the evidence must make reasonably certain their nature, occurrence and extent. In sum, such evidence must be of reasonable reliability. (See Grupe v. Glick, supra, at p. 693.)

Turning to the ease at bench, there is ample evidence of operating experience sufficient to permit a reasonable estimate of probable income and expense to furnish a basis for estimating what the probable earnings would have been had there been no tort. As we have hereinabove pointed out, the defendants do not attack the method utilized by Pibreboard in computing loss of profits, nor do they claim that the loss of profits established by Pibreboard was not in fact sustained. Their contention is that Pibreboard has not met its burden of proof because the damages are divisible. The basis of this assertion is that under the state of the record Fibreboard's loss of profits resulted in part from defendants’ tortious conduct and in part from the failure of the warehousemen to cross the picket line because of union principle. This contention assumes that the jury was compelled to find that the warehousemen did not cross the picket line because of union principle. As hereinbefore discussed the jury was entitled to find that the warehousemen remained away from work because of fear of violence or for union principle, or for both reasons. Having found in favor of Fibreboard upon inferences it was properly entitled to draw, we may assume that the jury found that the warehousemen stayed away solely because of the violence at the picket line. Assuming arguendo that implicit in the jury’s verdict is a finding that the warehousemen stayed away from work both because of fear of violence and union principle, we do not believe it was incumbent upon Fibreboard to show what portion of its damages was caused by the tortious conduct and what part was attributable to the nontortious. We doubt that such a showing could be made. The applicable rule is that one who contributes to damage cannot escape liability because the proportionate contribution may not be accurately measured. (City of Oakland v. Pacific Gas & Elec. Co., 47 Cal.App.2d 444, 450 [118 P.2d 328]; Reclamation Dist. No. 833 v. American Farms Co., 209 Cal. 74, 80 [285 P. 688] ; Cummings v. Kendall, 41 Cal.App.2d 549, 558-559 [107 P.2d 282]; DeCorsey v. Purex Corp., 92 Cal.App.2d 669, 676 [207 P.2d 616]; see Summers v. Tice, 33 Cal.2d 80, 85 [199 P.2d 1, 5 A.L.R.2d 91].) It is not necessary that the negligence of the defendant be the sole proximate cause of the damage, but there may be other factors which contribute to the extent of the damage. It is sufficient that such negligence be one of the contributing causes thereof. (Finnegan v. Royal Realty Co., 35 Cal.2d 409, 419 [218 P.2d 17]; DeCorsey v. Purex Corporation, supra, at p. 676.) The rule is stated thusly in the Restatement: “If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s negligence may be held by the jury to be a substantial factor in bringing it about.” (Rest., Torts, § 432, cited with approval in Summers v. Tice, supra.) While it is incumbent upon the party alleging injury to prove the amount of damages, if the damages proven could be reduced proportionately, that burden rests upon the defendant. (City of Oakland v. Pacific Gas & Elec. Co., supra, at p. 450; Vitagraph, Inc. v. Liberty Theatres Co., 197 Cal. 694, 699-700 [242 P. 709]; Andersen v. La Rinconada Country Club, 4 Cal.App.2d 197, 201 [40 P.2d 571].) Prosser states the applicable principle as follows: “ [W]here it is clear that a defendant has been at fault and that he has caused some part of the plaintiff’s damages, the burden of proof should rest on him to show the extent of his contribution, and that if he cannot sustain it he should be liable for the entire loss.” (Proximate Cause in California, 38 Cal.L.Rev., pp. 369, 388-389.) In more emphatic language, we find the principle stated in Navigazione Libera T. S. A. v. Newtown Creek T. Co., 98 F.2d 694, cited in Cummings as follows: “ [W]hen one of the two contributing factors is not the result of actionable fault ... the single tortfeasor cannot be allowed to escape through the meshes of a logical net. He is a wrongdoer; let him unravel the casuistries resulting from his wrong. ’ ” (P. 559.) In the light of the applicable principles Fibreboard has sustained its burden, but the record does not show that defendants have sustained theirs.

The cases cited by defendants with respect to the divisibility of damages are distinguishable. Each involves a factual situation where separate tortfeasors acted independently of each other and without concert or unity of design. In Connor v. Grosso, 41 Cal.2d 229 [259 P.2d 435], and Slater v. Pacific American Oil Co., 212 Cal. 648 [300 P. 31], it was held that each defendant was liable only for such proportion of the total damage as was caused by his own acts and that the trier of fact was at liberty to estimate the proportion as best it could. The other ease relied upon, Dauenhauer v. Sullivan, 215 Cal.App.2d 231 [30 Cal.Rptr. 71], supports the rule of indivisibility rather than that urged by defendants. There the appellate court, relying upon Finnegan v. Royal Realty Co., supra, recognized the principle that even though persons are not acting in concert, if the result produced by their acts is indivisible, each person is held liable for the whole. The rationale of the Dauenhauer case is that the distinction is one between injuries which are capable of being divided and those which are not, the law being loath to permit an innocent plaintiff to suffer as against a wrongdoing defendant where no logical basis for apportionment exists.

Did the Trial Court Commit Prejudicial Error in Excluding From Evidence Documents Filed and Statements Made by Fibreboard in its Appeal to the California Unemployment Insurance Appeals Boardf

No. Defendants claim that the trial court committed prejudicial error in refusing to admit in evidence a certified copy of certain documents and statements in proceedings before the California Unemployment Insurance Appeals Board. The documents consist of forms filed by Fibreboard in an appeal to said Appeals Board and the transcript of portions of the oral argument of Fibreboard’s counsel before said Board. These appeals were from decisions of a Referee awarding unemployment benefits to employees of Fibreboard who were unemployed during the strike. The record does not disclose the nature of the occupation of these employees. However, the briefs of the respective parties concede that the subject unemployment compensation hearings were concerned only with the production workers. The proffered exhibit discloses that it was Fibreboard’s position at the unemployment compensation hearings that the production workers stayed away from work voluntarily because of their respect for the picket line upon union principles, and not because of any violence or threats. Defendants sought to introduce Exhibit “Q” on the basis that it constitutes evidence of prior admissions inconsistent with plaintiff’s allegations and proof on the main issue of the instant case. It should be noted here that Exhibit “Q” consists of three written appeal forms and two transcripts of oral argument before the Appeals Board.

The principle is well established in this state that a declaration of a litigant contrary to his position in the lawsuit is admissible under an exception to the hearsay rule as an admission. Such a declaration is not only admissible for purpose of impeachment, but it may also be used to prove the truth of the assertion, i.e., it constitutes affirmative or substantive evidence which the jury or court may believe as against other evidence, including the party’s own contrary testimony on the stand. (Bonebrake v. McCormick, 35 Cal.2d 16, 18-19 [215 P.2d 728]; People v. Southack, 39 Cal.2d 578, 585 [248 P.2d 12].) Although defendants assert that all of the statements contained in Exhibit “Q” should have been admitted in their entirety as evidentiary admissions, the thrust of their argument, as disclosed by the briefs, is directed to the contention that the three appeal forms constitute admissions made in a pleading in a prior civil proceeding. It is, of course, also a well-established principle in California that a pleading in a prior civil proceeding may be offered as evidence or for the purpose of impeachment in a subsequent proceeding. (Meyer v. State Board of Equalization, 42 Cal.2d 376, 385 [267 P.2d 257]; Cahill Bros., Inc. v. Clementina Co., 208 Cal.App.2d 367, 383 [25 Cal.Rptr. 301]; Dolinar v. Pedone, 63 Cal.App.2d 169 [146 P.2d 237]; Nungaray v. Pleasant Valley etc. Assn., 142 Cal.App.2d 653, 667 [300 P.2d 285].) The rationale underlying this principle is that the allegations of fact in a pleading are presumed to be those of the party, and are therefore accepted as admissions, subject to the right of the party to controvert them by showing that they were not authorized by him or were made inadvertently or under a mistake of fact. (Dolinar v. Pedone, supra; Nungaray v. Pleasant Valley etc. Assn., supra, at p. 667; Witkin, Cal. Evidence, § 224, pp. 251, 252.) It is convenient to mention here that the same principle has also been applied to stipulations and other statements by attorneys within the scope of their authority. (Nungaray v. Pleasant Valley etc. Assn., supra, at p. 667 (stipulation of facts in prior trial) ; Gonzales v. Pacific Greyhound Lines, 34 Cal.2d 749, 754 [214 P.2d 809] (stipulation as to liability in prior trial); People v. Leyva, 187 Cal.App.2d 249, 254 [9 Cal.Rptr. 469] (stipulation as to prior conviction); Bell v. Staacke, 159 Cal. 193, 196-197 [115 P. 221] (letter written by attorney prior to trial); Scafidi v. Western Loan & Bldg. Co., 72 Cal.App.2d 550, 561 [165 P.2d 260] (admissions made in arguing a motion); see Witkin, Cal. Evidence, § 227, p. 255.) Parallel situations are those in which express concessions and assertions in a brief and in oral argument on appeal have been treated as an admission of a legal fact or point, controlling in the disposition of the case. (See Harmon v. Keough, 41 Cal.App. 773, 775 [183 P. 201]; Kashow v. Plant, 97 Cal.App. 696, 697-698 [276 P. 117]; Morris v. Board of Eduction, 119 Cal.App. 750, 752 [7 P.2d 364, 8 P.2d 502]; Hospelhorn v. Newholf, 43 Cal.App.2d 678, 680 [111 P.2d 688]; Kohn v. Kohn, 95 Cal.App.2d 708, 716, 717-719 [214 P.2d 71]; Browne v. Superior Court, 16 Cal.2d 593, 599 [107 P.2d 1, 131 A.L.R. 276]; Estate of Stevens, 27 Cal.2d 108, 115 [162 P.2d 918].)

Defendants lay considerable stress upon the assertion that the statements made by Fibreboard in its said appeal forms constitute admissions made in a prior pleading. Pleadings are generally associated with the trial of a cause and consist of the formal allegations of the parties of their respective claims and defenses for the judgment of the court. (See Code Civ. Proc., §§ 420, 422.) The office of pleadings is to outline the issues so that the parties may know what is involved in the litigation. (Horton v. Horton, 115 Cal.App.2d 360, 367 [252 P.2d 397]; Brunson v. Babb, 145 Cal.App.2d 214, 227 [302 P.2d 647].) Accordingly, it has been held that in civil actions the “pleadings” are those enumerated in section 422 of the Code of Civil Procedure and therefore do not include a notice of motion. (Sievers v. Pacific Gas & Elec. Co., 57 Cal.App.2d 455, 456 [134 P.2d 850].) In the instant ease, we are not concerned with the pleadings referred to in the Code of Civil Procedure, but with the “form of appeal” provided for in title 22, section 6002, of the California Administrative Code, applicable to appeals to the Unemployment Insurance Appeals Board.

No California case has been cited to us, nor has any been found by us, to the effect that a notice of appeal is a pleading. It should be noted, however, in the instant case, that an appeal to the appeals board is something more than a notice of appeal in the usual appeal from a judgment of a superior court which need only state that the appellant appeals from a specified judgment or a particular part thereof. (Cal. Rules of Court, rule 1(a).) It is designated as an “appeal document,” which “shall set forth the grounds or reasons for the appeal.” (Cal. Admin. Code, tit. 22, §§ 6001, 6002.) It has been held in other jurisdictions, where the assignments of error are designated in the document initiating the appeal, that such document or petition is in the nature of a pleading and is regarded in every material respect like the initial pleading in the trial court. (Employers Ins. Co. v. Harrison, 33 Ala. 199 [33 So.2d 260, 264]; Cole v. Farrier, 180 Va. 231 [22 S.E.2d 18, 25].) It is our view, however, that whether the appeal document in the present case is a pleading is not determinative of the question before us. The heart of the inquiry is whether Fibreboard made statements in its appeal document to the board of appeals contrary to the position it took in the instant lawsuit, so as to make such declarations admissible as admissions. The substance of the utterance, and not the form in which it is couched, is the determining factor. The distilled essence of the California rule, as declared by the eases hereinabove cited, is that the declaration or utterance must be one of fact and not a conclusion of law, opinion, legal contention, or argument. (See also Achen v. Pepsi-Cola Bottling Co., 105 Cal.App.2d 113, 123 [233 P.2d 74]; Kamm v. Bank of California, 74 Cal. 191, 195-198 [15 P. 765]; Mullinan v. Mercantile Trust Co., 80 Cal.App. 377, 384 [252 P. 647]; People v. Byars, 188 Cal.App.2d 794, 807 [10 Cal.Rptr. 677].) In Cullinan, the court made this statement: “Where a cause is so conducted that the court and counsel may rightly and do infer that certain facts are conceded or admitted the court may so treat them. ...” (P. 384.) And in Achen, the reviewing court said: “ [T]he exception to the hearsay rule which permits declarations or admissions by a party to be shown applies only to declarations or admissions of fact and not to the interpretation, legal or otherwise of the facts.” (P. 123.) The Achen case holds that the views expressed by a party as to what he intended or thought the meaning of a contract to be are inadmissible as his opinion or conclusion, where the factual language of the contract on which the action is based is equally available and known to the parties and its interpretation is a matter for the court. In Dolinar v. Pedone, supra, 63 Cal.App.2d 169, the answer in a prior action failed to deny a direct allegation that one Bowman at the time of an accident was the agent of the defendant, Universal Film Exchange, Inc., and acting within the scope of his employment. The said answer was admitted in evidence against said defendant in a subsequent ease arising out of the same accident as an admission of the fact that such agency existed. Similarly, in Kamm, a complaint in a prior action was held admissible in evidence against the plaintiff of the fact that the prior action had been brought, and of its nature, where the purpose was to show that the plaintiff was seeking, in the prior action, to recover the same moneys from a third person.

An analysis of the cases relied upon by Fibreboard discloses that they involve situations where the alleged inconsistent utterance was either a legal conclusion, an unauthorized statement, or a statement obviously not intended to be a stipulation of fact or a formal admission. Thus in Adelstein v. Greenberg, 77 Cal.App. 548, 552 [247 P. 520], a statement of counsel during the course of an argument on demurrer was held to be merely a legal conclusion and not a statement made as an admission or stipulation of fact. Similarly, in Morrell v. Goldow, 99 Cal.App. 159, 162 [278 P. 247], a statement by counsel, during an interchange between court and counsel regarding the number of outstanding shares in a stockholder's liability suit, that “ ‘they figured up nearer 800’ ” was held not to be intended as a stipulation or admission in the context and circumstances under which it was made. In Shaver v. Canfield, 21 Cal.App.2d 734, 742 [70 P.2d 507], a statement in a petition for guardianship inconsistent with a party’s claim that certain property had been deeded to her was denied admission in evidence on the ground that it was prepared by an attorney without any direction as to its contents by the plaintiff and also upon the ground that such statement was merely a conclusion of the plaintiff. Cullinan v. Mercantile Trust Co., supra, 80 Cal. App. 377, supports what we comprehend to be the California rule. There a declaration made by counsel for the respondents in his opening statement that certain allegations in the pleadings were admitted, and to which the appellants made no objection or reply, was held to constitute an admission of the truth of said allegations.

Adverting to Exhibit “Q” in the present case, we find that it contains both statements of fact and legal conclusions. The statements in the three appeal documents were clearly statements of ultimate fact. It is there stated unequivocally that the decision of the referee is in error on the following grounds: “Claimants left their work on July 31, 1959 because of their respect for the picket line of Machinists’ Union, Local 1304, and continued out of work for that reason until the picket line was removed from the entrance to their employer’s establishment on September 4, 1959. . . .’’ We do not agree with counsel for Fibreboard that these statements are merely contentions or legal conclusions; nor do we subscribe to the proposition urged by Fibreboard that the situation in the present case is analogous to the pleading of inconsistent defenses in an answer. In the latter regard, it suffices to say that the rule permitting inconsistent defenses is applicable to defenses set up in an answer in the same case. (Code Civ. Proc., §441; Oppenheimer v. Deutchman, 119 Cal.App.2d 450, 453 [259 P.2d 457]; Jones v. Tierney-Sinclair, 71 Cal.App.2d 366, 373 [162 P.2d 669].) Such defenses may not be considered as admissions against interest in the action in which the answer was filed. (Jones v. Tierney-Sinclair, supra, at p. 373; L. Mini Estate Co. v. Walsh, 4 Cal.2d 249 [48 P.2d 666].) In Jones, it was held, however, that where a defendant alleges facts in an inconsistent defense in one action and those facts are inconsistent with the position taken by the same party in a subsequent action between such defendant and other parties, the first verified pleading may be used against the pleader as an admission against interest in the subsequent action. Although Jones is distinguishable from the present case in that the prior inconsistent statement was under oath, we are of the opinion that this distinction is not significant. The rationale of Jones is compatible with the general rule which does not restrict the admissibility of prior inconsistent statements to those made under oath. To hold that a party may plead inconsistent defenses in different proceedings without incurring procedural sanctions would stultify the rule which permits