Opinion
5-2-1950
DELZELL et al. v. DAY et al. Civ. 17244.
A. V. Falcone, Los Angeles, for appellants. C. F. Jorz, Los Angeles, for respondents.
DELZELL et al.
v.
DAY et al.
May 2, 1950.
Rehearing Denied May 23, 1950.
Hearing Granted June 29, 1950. *
A. V. Falcone, Los Angeles, for appellants.
C. F. Jorz, Los Angeles, for respondents.
DRAPEAU, Justice.
By the instant action plaintiffs seek to recover for personal injuries and property damage sustained by them in a collision between their automobile and a pickup truck owned by the partnership and operated by defendant Day.
The plaintiff Beatrice Delzell, driving a Pontiac sedan, was returning to her home located on the north side of Sherman Way, about 400 feet east of its intersection with Hazeltine Street, Van Nuys, California. Sherman Way is thirty feet wide with ten feet paved sections on either side of a white center line and five feet unpaved shoulders beyond the paved sections. With her daughter, plaintiff Norma Delzell, seated beside her, plaintiff was proceeding easterly on Sherman Way. She made a boulevard stop at Hazeltine and observed a car traveling in the same direction about a block or so behind her. When she was about half way between Hazeltine and her residence she again noticed the car following her which was then about 50 feet east of Hazeltine. Plaintiff proceeded easterly close to the right side of the street and when she was about 100 feet west of her driveway, she 'made a left-hand signal with a straight arm' and began to edge over into the center of the highway. When she reached a point about 50 feet west of her driveway, she again noticed the other car which was then about 100 feet to her rear. When 15 or 20 feet west of the driveway, she completed her left-hand turn and was struck by the car following her. Her car was knocked against a tree just east of the driveway and as a result she and her daughter were severely injured and the Pontiac badly damaged.
The rear car, a Hudson half-ton pickup truck, admittedly was being driven by defendant Day in the course of his employment. He testified that he observed the Pontiac ahead of him as he approached Hazeltine. After he made the boulevard stop at that intersection, he proceeded easterly on Sherman Way at a speed of about 35 miles per hour. Plaintiff's car was then about half a block ahead of him traveling on the right side of the street close to the center line. When plaintiff's car was 'practically to the driveway' and defendant Day was about 10 feet to the rear thereof, the latter speeded up, 'pulled around' to the left over the white line into the west-bound lane in order to pass plaintiff, just as her car 'pulled into the driveway.' Defendant swerved to the right and threw on his brakes, but too late. The left front of his truck hit the rear of the Pontiac knocking it against the tree to the east of the driveway.
Defendant testified that he did not sound his horn; that he was looking straight ahead and did not see any left-turn signal from the other car.
The jury rendered separate verdicts (1) in favor of defendants and against plaintiffs Raymond L. and Beatrice Delzell; (2) in favor of plaintiff Norma Delzell for $750 against defendants.
From the ensuing judgments entered in accordance with the verdicts, appeals have been taken by Raymond L. Delzell and Beatrice Delzell, his wife; and by Norma Delzell, which have been consolidated for decision by this court.
It is first contended that the trial court was guilty of prejudicial misconduct which consisted of alleged persistent and consistent interference by unnecessary statements and comments which it is claimed raised questions and suspicions with respect to appellants' witnesses and evidence, thereby creating in the minds of the jury a state of uncertainty, confusion and prejudice as to various phases of appellants' case, resulting in the judgments adverse to them. Appellants cite thirty instances of such alleged misconduct by page and line of the reporter's transcript. However, an examination thereof discloses that appellants' counsel except for the incident numbered 30, did not assign the same as error at the trial but did in fact acquiesce in what was said by the trial judge.
It is well-established that 'Unless the harmful result of the alleged misconduct of the trial judge cannot be obviated by appropriate instructions of the trial court, error cannot be predicated in this court on such alleged misconduct in the absence of (a) assignment of such misconduct as error, and (b) a request to the trial court to instruct the jury to disregard it.' Church v. Payne, 36 Cal.App.2d 382, 400, 97 P.2d 819, 829. See, also, Metzenbaum v. Metzenbaum, 96 Cal.App.2d 197, 214 P.2d 603; and Burns v. California Milk Transport, 89 Cal.App.2d 70, 77, 200 P.2d 43.
Incident numbered 30 refers to two instances which occurred during the opening argument to the jury at which no reporter was present, resulting in the filing in this court of an engrossed settled statement. Referring to the first instance of alleged misconduct, it appears from such settled statement that plaintiffs' counsel told the jury that the court would instruct it that the Vehicle Code required that an automobile should not follow another too closely, whereupon the trial judge interrupted and stated that he would not give such an instruction. Counsel then argued that plaintiffs should not be precluded from submitting to the jury all the various legal theories supported by the evidence, particularly that defendant's automobile was about ten feet behind plaintiffs' car when he started to pass it at a speed of 40 miles per hour, which justified the application of the provisions of the code regarding following too closely. To this the court replied in substance that 'the jury had common sense and common sense showed that you could not be passing and following too closely at the same time.' Counsel then requested the court to admonish the jury and to instruct it to disregard the argument and to decide the case upon the evidence and the court's instructions. This the court refused to do, stating he wanted the jury to hear and consider everything occurring as a part of the argument. Counsel then made a motion for a mistrial, which was denied.
Appellants urge that the court in effect determined the evidence for the jury and told them that respondent Day was passing and not following too closely or too fast. The argument assumed that the accident was a rear-end collision which is contrary to the implied finding of the jury based on substantial evidence, to-wit: that as defendant swung out to pass plaintiff the latter made a left-hand turn in front of him without signifying her intention to do so. Hence no prejudice resulted to appellants' cause by reason of the alleged misconduct.
The second instance occurred when plaintiffs' counsel stated 'That from the nature of the locality, the width of the street and its residential character--', and was interrupted by defendants' counsel objecting to any argument 'on speed limit in a residential district,' which objection was sustained by the court. Plaintiffs' counsel then explained what he had in mind further stating that it was impossible for the court or counsel to anticipate what he was going to say until he had completed his statement, hence that no proper objection or ruling thereon could be made. He then requested permission to pursue the matter further outside the hearing of the jury. This the trial judge refused to do, stating he was going to see that the case was tried according to Hoyle; that plaintiffs' counsel had referred to a residential zone which did not apply to the case; that the prima facie speed limit likewise had no application to the case; that if he had permitted the statement to be completed the harm would then have been done and he wanted to avoid that. Plaintiffs' counsel then moved for a mistrial because of the prejudicial effect of the trial judge's statement in that it raised an inference that counsel was trying to put something over. That motion was denied, whereupon counsel requested the court to admonish the jury to disregard the colloquy and decide the case impartially on the evidence and the court's instructions. Again the judge refused plaintiffs' request, stating he would instruct the jury at the proper time.
Appellants urge that this occurrence shows the court's consistent interference with their case, his favoring of respondents' case, his clear conveyance to the jury that 'appellants had to be carefully watched and that everything they did not suspect.'
While it was probably error not to have permitted counsel to finish his statement, nevertheless he was allowed to explain that he only wanted to dsicuss the physical facts and the general surroundings in regard to whether defendant Day's acts immediately prior to the accident were those of a reasonably prudent person. The jury was adequately instructed on the meaning of negligence and ordinary care. In the circumstances, no prejudice resulted by reason of such error.
Appellants next cite as error the refusal of the court to give certain instructions requested by them:
(a) Regarding depositions of appellant wife and respondent Day, as to the effect of which the jury should have been instructed. Only portions of the depositions were read in evidence, but both parties testified at the trial. Although the jury was not instructed as to the effect of the depositions, it was very fully instructed on the effect and value of testimony as well as the credibility of witnesses.
(b) Special instruction covering appellant father's right to recover for loss of his daughter's services.
The daughter in this case was a student and was graduated from high school in June following the accident. The court properly refused this instruction, there being no evidence of loss of services by her father, except for household duties which she said she performed in the home.
(c) Special instruction covering the so-called rear-end collision rule.
There was no error in refusing to give this instruction because it is clear from the evidence that this was not a rear-end collision. As stated in Davenport v. Stratton, 24 Cal.2d 232, 254, 149 P.2d 4, 15: 'Even though an instruction is couched in proper language it is improper, if it finds no support in the evidence, and the giving of it constitutes prejudicial error if it is calculated to mislead the jury. 24 Cal.Jur. p. 830, § 95, and the authorities there cited.'
(d) Special instruction covering respondent Day's failure to sound his horn. The jury was fully instructed on the use of horns on the highways and the applicability of section 671 of the Vehicle Code to the instant situation.
(e) Special instruction quoting section 531(a), Vehicle Code, requiring motor vehicles not to follow too closely and applying this section to the instant cause. Although respondent Day was following appellant's car, that of itself is insufficient to establish that he was following her too closely. The evidence did show that it was not until the last fifty feet prior to the collision that respondent came into close proximity with appellant's car when he was attempting to pass to the left thereof just as she made a left-hand turn in front of him. As stated in 24 Cal.Jur. 826, sec. 92: 'A litigant requesting it is entitled to proper instructions presenting his theory of the case, based upon the pleadings and the proofs. And if the parties to an action rely upon different theories, instructions should be given, when requested, as to each. But it is obvious that such an instruction is erroneous * * * if it is unsupported by evidence.' Such is the situation here.
(f) Special instruction quoting section 544(a) and (b) of Vehicle Code requiring signals of vehicles intending to turn. It is here urged that an instruction quoting only subdivisions (a) and (b) of the cited section should have been given instead of the instruction which was given quoting subdivisions (a), (b) and (c), since the latter subdivision has reference to stopping or sudden decrease of speed without a signal.
Whether appellant Beatrice Delzell gave any signal of her intention to make a left-hand turn is the point upon which this case turns. She testified she gave it; respondent Day said he did not see any signal. By its verdict in favor of Day, the jury impliedly found that Mrs. Delzell gave no signal of her intention to make a lefthand turn. As a result the inclusion in the instruction of subdivision (c) of the cited section was not erroneous.
Appellants also complain of certain instructions given by the court at the request of respondents: (1) Instruction B.A.J.I. 137 on imminent peril; (2) Instruction B.A.J.I. 134 on unavoidable accident on the ground that these were persuasive suggestions to the jury that appellant wife was guilty of contributory negligence. In view of the full and fair instructions which were given on the subjects of negligence and contributory negligence, the giving of the instructions complained did not prejudice appellants' cause.
Appellants object to the giving of the following instruction: 'I charge you that the defendant, Patrick J. Day, had a legal right to pass a vehicle at the point of the accident, subject to the exercise of ordinary care and observance of the provisions of the Vehicle Code.' It is claimed that this instruction is ambiguous because it does not recite which sections of the code should be observed. The jury was fully instructed with respect to the various sections of the Vehicle Code applicable to the situation, hence there was no error in omitting them from the cited instruction.
Appellants urge error in certain instructions given by the court on its own motion, in that the court either quoted portions of code sections inapplicable to the case or failed to explain or qualify them. An examination of these instructions discloses they were properly given.
Although appellants complain that the court erroneously gave instruction B.A.J.I. 139 with respect to examination of jurors re interest in insurance company, they admit that this was 'among the instructions filed by appellants at the outset of the trial' in anticipation that such a question might be asked. No harm resulted from the giving of this instruction.
It is established law that in order to justify a reversal because of the giving of an erroneous instruction, or the failure to give a proper instruction, it must appear that there was a miscarriage of justice under section 4 1/2 of article VI of the constitution of this state. 19 Cal.Jur. 747, sec. 145.
It is contended that the verdict and judgment against appellants husband and wife are not supported by the evidence. An examination of the record discloses that the evidence adduced at the trial herein presented issues of fact for the jury on the questions of negligence and contributory negligence of the parties. The jury having decided these questions adverse to appellants husband and wife upon conflicting evidence, this court is powerless to intervene.
Appellants further complain that the judgment in favor of appellant daughter for $750, 'in our present economic state, is a nominal amount and is not compensatory.' It is conceded that Miss Delzell apparently had recovered at the time of trial and that her doctor and medical bills were $169.50. As has been many times reiterated, the amount of recovery is a question of fact to be determined by the jury, and an appellate court is without authority to disturb the verdict if there is any substantial evidence to support it.
The record in this case discloses substantial evidence in connection with the inferences which may be reasonably drawn therefrom to support the facts hereinbefore recited as well as each and every finding of fact upon which the verdict of the jury was necessarily predicated. Church v. Payne, 36 Cal.App.2d 382, 393, 97 P.2d 819.
While some slight errors may have been committed during the trial, they were not of such a serious character as to unduly prejudice the rights of appellants. They do not therefore justify a reversal of the judgments.
For the reasons stated, the judgment appealed from are affirmed.
DORAN, J., concurs.
WHITE, Presiding Justice.
I dissent. Conceding that the Judge sitting with a jury has plenary rights with reference to the orderly conduct of the case on trial, including the duty of declaring the law applicable to the facts and the legal effect thereof, there is in my judgment, no warrant in the law or lawful authority for a judge to so inject himself into the trial of a jury case by persistent and constant interference by way of unnecessary or unjustified statements and comments from which it can reasonably and rightfully be deduced that the jury was influenced thereby in the rendition of its verdict.
In the instant case, during the voir dire examination of prospective jurors, appellants' counsel inquired of one of them, 'Do you have any particular, fixed opinion about a rear-end collision?', to which he received a response, 'No, nothing whatsoever.' Appellants' counsel then inquired, 'If the Court should instruct you in substance during the trial of this case that, general speaking, the mere fact that a rear-end collision occurred would give some evidence of negligence on the part of the car in back, unless it happened because of the negligence of the car in front, would you follow such an instruction?'.
Respondents' counsel then interposed an objection, saying, 'I know the Court won't grant any such instruction, and you wouldn't recognize the accident in this case from the remark he made.'
Thereupon, the Court said, 'Well, let's not get excited about it. It doesn't excite me. I never heard of such a law, and I won't give it.' (Emphasis added.)
The Court's statement that 'I never heard of such a law' undoubtedly conveyed to the jury the impression that there was no such law or rule. But there is such a rule. See 'O'Connor v. United Railroads of San Francisco, 168 Cal. 43, at page 47, 141 P. 809; Gornstein v. Priver, 64 Cal.App. 249, at page 255, 221 P. 396; Wright v. Ponitz, 44 Cal.App.2d 215, at page 219, 112 P.2d 25; Shannon v. Thomas, 57 Cal.App.2d 187, at page 194, 134 P.2d 522. It was improper for the court by its comment to remove appellants' theory of their case from the jury at the very outset of the trial.
Again, when appellants' counsel inquired of a venireman on voir dire, 'Mr. Falcone (Appellants' counsel): Mr. Colahan, do you have any fixed opinion about people who are involved in collisions, striking a car ahead of them from the rear, either for or against such a car?', respondents' counsel made the objection, 'Now, I submit that that it misleading. It is inflammatory----'. Thereupon, the following ensued:
'Mr. Falcone (appellants' counsel): I take exception to Mr. Jorz' (respondents' counsel) remarks.
'Mr. Jorz: The remarks he is making is inflammatory, and I object to it as immaterial, to begin with, and it is improper questioning of jurors.
'Mr. Falcone: I take exception to Mr. Jorz' statement, and I cite it as misconduct and ask the Court to instruct the jury to disregard it.
'The Court: No. I will not assign it as misconduct. It is proper criticism to make. The question wasn't proper. The objection is sustained to it.' (Emphasis added.)
There was nothing 'inflammatory' about the question nor was there any justification for the Court to advise the prospective jurors that for respondents' counsel to so characterize it was 'proper criticism'.
During the examination of respondent Day, driver of one of the vehicles involved in the collision, we find the following:
'By Mr. Falcone (appellants' counsel): How old are you, Mr. Day?
'A. Twenty-four.
'Q. Now, at the time of the accident, did you have an operator's license?
'A. No. I think I had an expired chauffeur's license.
'Q. An expired
'A. Yes.
'Q. Expired in '44?
'Mr. Jorz: I object to this as immaterial, your Honor. I think that is incompetent. The question of a license is immaterial if he is an experienced driver under the authority of Stryant v. Cannon. That is one of my own cases in which they held just that.
'The Court: Yes. It is immaterial whether he had a license or an expired license. The question is, Did he drive properly?
'Mr. Falcone: Well, your Honor, I don't agree with that statement of the law, and I suggest that Mr. Jorz make his objection without discussing
'Mr. Jorz: I made my objection and cited the authority.
'The Court: The possession of a license or lack of possession of a license doesn't necessarily cause an accident.
'Mr. Falcone: No.
'The Court: And an accident is not attributable to the lack of a license if the possession of the license had nothing to do with it.
'I will instruct the jury at the right time. Go on and ask your questions. I will rule on proper objections.
'Mr. Falcone: Well, your Honor, I want to make my observations, too. I don't think
'The Court: It isn't necessary to make observations. Counsel should avoid it. Mr. Jorz made an objection. I am sustaining it on the ground that it is immaterial whether he had a license or not.'
In both his comments and argument on the law, as well as in his ruling, the trial judge was in error. The questions were preliminary. The lack of a license might be due to physical incapacity or other disqualification to have one. The inability or failure of respondent driver to secure a license upon the expiration of his prior one, if such a situation were developed, might well affect his right and capacity to drive a motor vehicle and, if a causal connection was shown between respondent Day's nonpossession of a license and the accident, the jury might draw reasonable inferences of negligence therefrom. Poe v. Lawrence, 60 Cal.App.2d 125, 130, 131, 140 P.2d 136.
On another occasion during the examination of respondent Day, the latter was asked by appellants' counsel, 'Was your car at the time of the impact completely north of the center line or was the right side of your truck on the center line?
'A. I would say it was the other side of the center line.
'Q. North of it?
'A. Yes.
'Q. About 3 or 4 feet?
'A. I wouldn't say that. Maybe not that far.
'The Court: If the right side of his truck was 3 or 4 feet north of the center line, his left wheels would be riding the imaginary curb over there; bumping into the trees.
'Mr. Falcone: Your Honor, I didn't testify to that.
'The Court: But you suggested he was 3 or 4 feet north of the center line.
'Mr. Falcone: On the contrary, I take exception to the Court's statement. I was quoting his testimony yesterday, and I challenge the record. He said 3 or 4 feet north of the center line.
'Mr. Jorz: I submit, if the Court please, these questions were asked and answered over and over again yesterday, and it is nothing but a repetition of yesterday.
'The Court: I have no recollection of his saying 3 or 4 feet over. I think I would have recorded it as quickly then as I did now, that it would throw his truck way up against the property line. (Emphasis added.)
'Mr. Falcone: I request that the record be re-read.
'The Court: No. It is too much trouble. Ask him the question direct.' (Emphasis added.)
After further discussion regarding the Court commenting upon the evidence, the Judge again said, 'Yes. I commented on it because I have no memory of his ever having said that before, and I suggested that if he had said it before, I think I would have caught him up as quick as I did you when you said it, because I know the width of automobiles, and the width that you have got there of the side of the street is only 10 feet----'.
Again the Court was wrong because the record, which appellants' counsel desired to have read, shows that the witness had testified that the right side of his truck was north of the center line. He also testified that he was behind appellants' vehicle, and that the back end of it was 3 or 4 feet north of the center line. This line of testimony was important to appellants' avowed theory of the case. The questioning by appellants' counsel was proper, but the Court stated his erroneous version of the evidence and argued about it.
Another instance, which in my judgment, strongly militated against appellants was the statement by the trial Court that testimony relating to respondent Day, driver of the truck involved, having been drinking was immaterial. In that regard, a police officer called as a witness on behalf of respondents testified that upon contracting respondent Day at the scene of the accident, 'I could detect that he had been drinking some alcoholic beverages. I asked him if he had been drinking, and he said, 'Yes.' We asked him where, and he said at the Live Oaks Cafe west of there on the corner at Vay Nuys.'
On redirect examination, with reference to the question of respondent Day having been drinking, the Court in sustaining an objection said, 'Yes, if it is civil, it doesn't apply unless you prove he was intoxicated. He says he had been drinking.' This was clearly erroneous and amounted to a declaration to the jury that unless appellants proved respondent Day was intoxicated, the effect of his drinking had no bearing on his negligence. It is the law that in an action such as this, to recover damages based on alleged negligence, a plaintiff is allowed to prove and the jury should consider all of the circumstances present at the time of the happening of the accident. And certainly, the extent of respondent Day's alcoholic condition at the time of the collision with appellants' vehicle became of vital importance. It was grievous error to exclude it from the jury's consideration, and equally grievous to advise the jury that it was immaterial. Purcell v. Goldberg, 34 Cal.App.2d 344, 348, 93 P.2d 578.
I have not here set forth all of the assignments urged by appellants because to do so would unduly prolong this already lengthy opinion. Suffice it to say that the foregoing coupled with some twenty-five other claims of prejudicial misconduct and erroneous statements or rulings, in my opinion, deprived appellants of that fair and impartial trial to which they were entitled. I am impressed from the foregoing that it would be but natural for the jury to believe that the Judge looked with disfavor upon appellants' theory and testimony concerning the circumstances of the collision.
The words of the Court in McMinn v. Whelan, 27 Cal. 300, 319, may appropriately be quoted here: 'From the high and authoritive position of a Judge presiding at a trial before a jury, his influence with them is of vest extent, and he has it in his power by words or actions, or both, to materially prejudice the rights and interests of one or the other of the parties. By words or conduct he may on the one hand support the character or testimony of a witness, or on the other may destroy the same, in the estimation of the jury; and thus his personal and official influence is exerted to the unfair advantage of one of the parties, with a corresponding detriment to the cause of the other.'
The majority opinion makes reference to the general rule requiring an assignment of alleged misconduct and a request to the trial court to instruct the jury to disregard it, without which, error cannot be predicated in this court on such claimed misconduct. While, as pointed out in the majority opinion, appellants did on one occasion make the required assignment, as to the other instances of alleged misconduct, it is my opinion that most, if not all of them, come within the exception to the rule just enunciated, in that an admonition of the trial judge to the jury to disregard his claimed misconduct would not remove the prejudicial effect thereof. Appellants are therefore, not precluded from urging such error on appeal.
Prejudice of course, is a matter of degree. An incident or incidents, in the light of one record might not be prejudicial and reversible error, but similar incidents in the light of another record might be highly prejudicial. The evidence in the case at bar was most conflicting, and the question of who was responsible for the accident was a close one. The errors claimed could therefore, have easily tipped the scales in favor of respondents and have resulted in a miscarriage of justice.
The situation presented by the record before us, in my opinion, presents a situation that has transcended so far beyond the rule of judicial fairness as to render a new trial necessary.
I would reverse the judgment. --------------- * Subsequent opinion 223 P.2d 625.