Opinion
Rehearing Denied June 27, 1968.
For Opinion on Hearing, see 74 Cal.Rptr. 534, 449 P.2d 750.
Dunne, Phelps & Mills, Louis L. Phelps, Richard H. Bailin, San Francisco, for appellant.
Boccardo, Blum, Lull, Niland, Teerlink & Bell, Edward J. Niland, Stanly A. Ibler, Jr., San Jose, for respondent.
DEVINE, Presiding Justice.
This is an appeal from a judgment in the amount of $80,000, in an action brought under the Federal Employers' Liability Act. The jury's verdict was for $115,500, but consent to reduction was made by the plaintiff, in compliance with a conditional order granting new trial. The issues are admissibility of evidence of a disability pension and misconduct of counsel.
Mike Sabella, plaintiff, was 56 years old at the time of the accident, and had worked as a carman cutter for defendant for 32 years. He and two other were assigned to the work of cutting damaged freight cars into scrap. When a car is demolished, the entire roof must be removed. The cutting is done by acetylene torch.
Plaintiff's original manner of doing his work was to cut one piece of the roof and wait for the crane to remove that section before going to another. Thus, only a single section was movable. The roof is usually cut into five sections. Because this procedure caused delay in waiting for the crane, the general foreman told plaintiff he must cut the entire roof, call the crane, and get all the sections off (one by one) at one time. This testimony was not contradicted.
Plaintiff and Thomas Richardson, one of the other cutters, both testified that plaintiff used a precaution which Richardson did not, that is, plaintiff would leave at On the day of the accident, plaintiff testified, he had cut the roof in the manner described. When the crane arrived, he stood on the roof and placed the lifting hooks into holes which he had cut in the roof sections. He then told the crane operator not to move a thing until he was off the roof. The first two sections were removed without incident. However, he testified that after he had inserted the hooks into two of the remaining sections, the one on which he was standing jerked as he was walking away, causing him to fall into the car.
The crane operator testified that he merely took up the slack of the cable, and Sabella just disappeared after taking a couple of steps. He admitted that the sections had moved, but 'barely.' In his deposition he stated that after the accident the edges of the sections stuck up above the top of the car a couple of feet. On the witness stand he reduced this to one foot.
It was the defense theory that Sabella had improperly cut the roof, by failing to leave enough overlap to support the roof sections on the sides of the car. Much of the defense was based on photographs.
Besides plaintiff's theory that the crane operator had negligently moved the roof section on which he was standing, thus causing his fall, he relied on the failure of defendant to provide a reasonably safe place in which to work.
A fair summary of the case made for the purpose of assessing the effect of misconduct is this: a firm, although not completely compelling case was made by plaintiff for defendant's liability; contributory negligence, which might reduce an award under F.E.L.A. law, was reasonably arguable.
Plaintiff, having fallen on the base of his spine, suffered a compressed fracture of vertebrae. It was the opinion of Dr. Michael Bluhm, who testified for him, that plaintiff's complaints of continuous pain and restricted motion of the back were consistent with his history and the X-ray findings. He testified that Sabella could not do the job which had been his. He expected whatever pain and discomfort Sabella had would continue. Sabella testified that he was in pain every day, that he was wearing a brace and that he could not be on his feet for more than about an hour at a time. Dr. Waldo Newberg testified for the defense. He said that the compressed fracture was minimal, that there is no objective evidence of disability sufficient to keep the patient from working, that he had exaggerated response to a light touch, and that although it was his opinion and that of his associates that plaintiff had recovered, they recommended him for duties with 25 pounds' lifting restriction and no work around moving equipment.
Perhaps the most prominent issue in the case, and surely the one which gave rise to an impassioned argument to the jury by plaintiff's counsel, was that of the availability of work with the railroad. In his opening statement, plaintiff's counsel said that with the 25-pound limitation plaintiff could not work as a carman and that the railroad did not offer him any other job even as delivery boy. Defense counsel replied Plaintiff testified that he knew of no job with limited lifting which he could do, and that the railroad had not offered him any other kind of job. He was not cross-examined about this. The defense produced testimony from a superintendent of the mechanical department, McLaughlin, to the effect that a job as tool room custodian would be available. Sabella would have to return to his original job and then 'if it should be developed in his work that he does not wish this job' (a job from which, indeed, he was barred by the medical restrictions), usually a local arrangement could be made to have the job abolished and then he could 'bump' the junior occupant of the tool room job. However, many of the tools are heavy and a man with plaintiff's restrictions would have to call on others for help. There was no testimony that this superintendent had ever contacted Sabella or that an offer of a job had been made to him. Sabella, in reply, testified that he had gone in company with union representatives in January 1963 to the yard area in Los Angeles, had met the master car repairman, whose name he gave, that the tools were weighed, and that the smallest motor was 35 pounds. Apparently, the interview ended shortly. No rejoinder to this testimony was offered by defendant. Although Sabella's testimony on this point came late in the trial, appellant made no point on its motion for new trial that it was taken by surprise.
Evidence Related to Plaintiff's Retirement Proceedings
Appellant asserts that it was error for the trial court to exclude evidence which would have shown that plaintiff had applied for a disability pension under the Railroad Retirement Act.
Appellant, in its motion for new trial, relied upon the exclusion of the evidence as a prejudicial error of law. One of the two grounds cited by the judge for granting his conditional order for new trial was prejudicial error in law occurring at the trial and excepted to by defendant. The parties agree that the reference to an error in law was the ruling discussed herein, because it was the only one argued on motion for new trial. (At the time of the granting of the motion, on March 29, 1965, it was not required, as it now is by amendment to section 657 of the Code of Civil Procedure, that reasons for granting a new trial be specified.) Appellant argues that when there has been prejudicial error of law, the court must grant a new trial outright, and not made conditional on remittitur. Respondent replies that there was no error at law. Respondent is entitled to take this position even though he did not appeal. (Code Civ.Proc. § 956.)
The way in which the proffer of evidence was made to the court was this: Counsel for plaintiff proposed to read questions on a printed form which were put to Dr. Calvin, a physician at the Southern Pacific Hospital, and the doctor's answers given on January 14, 1963. Counsel for defendant agreed 'provided that all parts germane also be read.' The first question was, 'May applicant's condition be expected to, improve?' which was answered by check mark against 'No.' The second question, 'Applicant able to work in last occupation?' was answered by check mark against 'No' and 'At Present.' 'May applicant be able to work in last occupation in the future?' was answered by check mark in the 'No' box. Next appears: 'Type of work: Limitation to 25 pounds weight lifting, and no climbing or working on moving railroad equipment.'
Counsel for the defense attempted in his case-in-chief to show, by reading the form in its entirety and a letter from the Railroad Retirement Board, that the questions and answers were related to an application by plaintiff for a disability pension. Objection was made on behalf of plaintiff on the ground of the ruling in Eichel v. New York Central R. R. Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307, that such evidence is inadmissible because 'it would vi olate Whether the Eichel case is binding on state courts as announcing a rule amounting to substantive law, which is controlled in F.E.L.A. cases by federal rules (Davee v. Southern Pacific Co., 58 Cal.2d 572, 25 Cal.Rptr. 445, 375 P.2d 293), or is not binding, as a decision on evidence only (Showalter v. Western Pacific Railroad Co., 16 Cal.2d 460, 106 P.2d 895), we need not decide. In the application of state law, the unanimous decision of the United States Supreme Court in the Eichel case, which has been said to express a strong public policy (Page v. St. Louis Southwestern Railway Co., 5 Cir., 349 F.2d 820), must be accorded great respect.
We conclude that it was not error for the court to exclude the evidence. The principle referred to in the Eichel case, of excluding evidence that is harmful to a party and which is of comparably less value for legitimate purposes, is recognized by the law of this state. Presently, it is expressed in section 352 of the Evidence Code. This section had not been enacted at the time of the trial, but the rule had been approved earlier. (See Note of the Law Revision Commission to Evidence Code section 352.)
Appellant's first theory is that the evidence was admissible by reason of stipulation between the parties. But the stipulation by respondent was only that those parts of the questionnaire and its transmittal letter which were 'germane' would be admitted. In fact, appellant did read into the record, without objection, a number of questions and answers in which Dr. Calvin stated that plaintiff's complaints of pain were subjective only. These were indeed germane.
Appellant asserts that the questions and answers of Dr. Calvin were used in the cross-examination of Dr. Newberg, and that it should have been permitted to appellant to show that Dr. Calvin had replied to the Railroad Retirement Board without ever having examined plaintiff and solely by reference to the hospital records. But Dr. Newberg had testified even before the cross-examination that it had been impossible to rehabilitate Sabella. He and other doctors had recommended duties with 25 pounds' weight lifting restriction and no work around moving equipment. Appellant also proposed to have Dr. Calvin testify that when he answered 'No' to the Railroad Retirement Board's question whether Sabella could be expected to improve, he meant that if Sabella had the security of a disability, pension he would not be expected to improve. We believe this reasoning would not be of sufficient weight to overcome, on the issue of admissibility, the prejudicial effect of showing collateral compensation.
Appellant's second theory of the admissibility of the evidence is that it would show that plaintiff's true purpose was not to return to work even if he were able, but to retire. Appellant argues that when plaintiff's counsel told the jury in his opening statement that the railroad in effect refused Sabella a job, he opened the subject, so that the defense was entitled to show that Sabella had voluntarily taken his disability pension. This goes to the very heart of the rule banning evidence of the collateral compensation. In order to get a disability pension, as distinguished from an annuity for service only, the workman must show that his permanent physical or Appellant arguse that the motive for plaintiff to seek the pension may have been simply a desire to retire, and that it should be permitted to show this, independently of any charge of malingering. It is difficult to escape the connotation of maligering because of the nature of a pension obtained by reason of disability. But, in any event, the existence of the pension as the employee's motive for asserting disability following an injury cannot be put in evidence. (Eichel v. New York Central R. R. Co., supra, 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307; Caughman v. Washington Terminal Co., 120 U.S.App.D.C. 217, 345 F.2d 434.)
Misconduct of Counsel
We have concluded, on considering the whole record of the case, that the judgment must be reversed because of misconduct of counsel, as shown below.
Respondent argues that because the order granting new trial refers to insufficiency of the evidence and errors of law but contains no reference to misconduct of counsel, the court must have rejected appellant's contention in this regard, at least in so far as prejudicial misconduct is concerned, and that such a decision by the trial court should not be disturbed on appeal unless it is clearly wrong. (Lafargue v. United Railroads of San Francisco, 183 Cal. 720, 724, 192 P. 538; Wills v. J. J. Newberry Co., 43 Cal.App.2d 595, 607-608, 111 P.2d 346.)
But it is not clear, as it is in cases where there is an outright denial of new trial, that the court decided that there was no prejudicial misconduct. Misconduct of counsel is not specifically mentioned by statute as a ground for new trial. (Code Civ.Proc. § 657.) At the time the order was made the judge was not obliged (as judges now are) to give the grounds for his order, except that if insufficiency of the evidence were one of the grounds this had to be stated in writing. It may well be that the experienced trial judge attempted to correct the judgment by the reduction in amount, even though the excess had been produced wholly or in part by misconduct. For although he decided that there was a prejudicial error of law, he did not grant a full new trial, but apparently intended also to rectify that which he deemed to have been error, by the remittitur.
We do not regard the reduction itself a sufficient correction of the misconduct. It is not sufficient to argue that the judgment as reduced is not excessive. It is not possible to know what the verdict would have been in the absence of misconduct. (See Garden Grove School Dist. of Orange County v. Hendler, 63 Cal.2d 141, 143-144, 45 Cal.Rptr. 313, 403 P.2d 721.) If the only result of misconduct by a plaintiff's counsel is to be a reduction of damages to the amount which the judge deems justified by the evidence, the same result which follows any verdict regarded as beyond reason by the judge, counsel will be the more disposed to engage in improper behavior. Besides, despite the fact that, as we have said, plaintiff had a good case, it cannot be said that the misconduct had no effect on the issue of liability, and in particular on the issue of contributory negligence.
The incidents of misconduct may be grouped into a few classes. The first class includes unjustified imputations of unfairness of defendant, of opposing counsel, and of witnesses. We recognize fully the right of counsel to make vigorous argument, to challenge the veracity of witnesses, Specific reference to unfairness of defendant and its counsel, completely unsupported by the record, was a charge that photographs of the freight car which were favorable to plaintiff were being concealed. Counsel told the jury, 'You see, all the pictures that may show it to his advantage, you don't see them. * * * They are not here.' An assignment of misconduct was made. At an earlier time counsel for plaintiff had demanded all of the pictures which the defense had. After defense counsel handed him a group of pictures and said these were all the pictures that the defense had, counsel for the plaintiff challenged the statement and when his adversary replied that 'You have my assurance,' counsel for plaintiff said, 'It doesn't mean much.' The combination of this remark with the later argument to the jury constituted an unwarrantee impugnment of the honesty of the defense and of its counsel.
Reflections on the integrity of opposing counsel are highly improper. (Love v. Wolf, 226 Cal.App.2d 378, 391, 38 Cal.Rptr. 183.) An unsupported accusation that defendant and its counsel suppressed evidence is misconduct which may produce reversal on appeal. (Keena v. United Railroads of San Francisco, 197 Cal. 148, 158-160, 239 P. 1061; Weaver v. Shell Co., of California, 13 Cal.App.2d 643, 648-650 57 P.2d 571.) Counsel for respondent made a charge which, if believed by the jurors, could not but have weakened their regard for opposing counsel and have led them to suspect generally the practices of appellant.
Counsel's attack also was upon defense witnesses, with the imputation that they were compelled to falsify. About the witness Medina, he said, 'how long do you think he would be out there if he didn't sign [the statement]'; and, 'you can look at the sorrowful look in a man's eyes when you are taking his deposition, and they cry out to you, 'I would like to help you, Mr. Teerlink, but I can't; I've got to send him down the tubes; it is him or me,' and that is the way you see it.' Assignment of misconduct and motion for mistrial were made. The motion was denied. Again, counsel said, 'What would happen to poor Medina if he didn't go along with it? Ever think about that? When they see how they threw him on the human trash pile, how quick would they give it to Medi na Malkasian v. Irwin,
The second class of incidents comprises those relating to thefailure of the railroad to provide Sabella with a job within the restrictions imposed by the physicians. Appellant points out, correctly, that the company was not obliged to provide a substitute job. But because the company chose to offer evidence that a job would be available, the subject became an issue and there was room for legitimate argument on it. But counsel's remarks went beyond the scope of fair advocacy. He resorted to such reckless hyperbole as: 'This isn't really 1964 at all. This goes back to the early stages of man's inhumanity to man long before they were savages, because I submit, and I will discuss with you folks this afternoon, never in the history of man could anyone have been taken down the tubes or down the drain like one Mike Sabella was.' Reference to 'inhumanity' of a defendant for the purpose of arousing anger or engaging the sympathy of the jury is wholly improper. (Jonte v. Key System, 89 Cal.App.2d 654, 201 P.2d 562; Horn v. Atchison, Topeka & Santa Fe Ry. Co., 61 Cal.2d 602, 609, 39 Cal.Rptr. 721, 394 P.2d 561; Love v. Wolf, 226 Cal.App.2d 378, 385, 38 Cal.Rptr. 183.) Citation of misconduct and motion for mistrial were made. Again, plaintiff's counsel said, 'Hey, Mr. Southern Pacific, don't throw--don't dump him on the same trash pile where you dump those steel cars. This is a human being you are talking about now.' Citation of misconduct was made. The real point was what compensation should be made for plaintiff's diminished earning capacity, not what could be exacted from defendant by way of penalty. Similar argument, that the railroad had kicked plaintiff out like a 'sawdust bag,' was condemned in Robinson v. Pennsylvania R. R. Co., 3 Cir., 214 F.2d 798, 801.
The last class of incidents contains other statements which are an inducement to the jury to award punitive damages. There is reference to plaintiff's poor financial condition, together with the suggestion that appellant was responsible for it: 'You don't ever get a silver spoon in your mouth if you spend 36 years with the Southern, Padific.' There was the 'exchange of places' argument, although it was obscurely stated, 'there isn't a soul who would spend [sic] any sum of money to be placed where Mike Sabella is.' This is improper. (Horn v. Atchison, Topeka & Santa Fe Ry. Co., supra, 61 Cal.2d p. 609, 39 Cal.Rptr. 721, 394 P.2d 561.) Further, 'their whole defense is the hope that they might smear a little on Mike, and you might cut him by 10 or 15 or 20 percent, and they walk home and put it in their pockets.' The concluding words of counsel's closing argument were: 'You tell the Southern Pacific in that verdict it is high time to quit treating their employees that way.'
Respondent points out that counsel for the defense did not request admonitions to the jury. This is true and it cannot be doubted that the practice of making such requests is to be commended and in some cases may be essential. (See California Trial Objections (Cont.Ed.Bar) §§ 31.10-31.16, pp. 190-193.) The request for admonition presents the court with a clear-cut motion upon which it must rule; it calls for less drastic remedy than mistri al, Love v. Wolf,
Love v. Wolf,The case resembles that of Horn v. Atchison, Topeka & Santa Fe Ry. Co., 61 Cal.2d 602, 39 Cal.Rptr. 721, 394 P.2d 561, in the general nature of the misconduct. Trial of the Sabella case commenced about five months after the stern condemnation of the misconduct in the Horn opinion, and about nine months after that in Love v. Wolf. But in the Horn case no objection at all was made during the arguments; wherefore waiver resulted from silence.
Respondent also points out that defense counsel, in making his protests, sometimes (particularly in the 'trash pile' parts of the argument) called the court's attention to the evidence which it would have produced about plaintiff's retirement. We do not regard this fact as so far diluting the assignments of misconduct and motions for mistrial as to make them unavailable for the correction of the error caused by the inflammatory and accusatory arguments of plaintiff's counsel. Complete reversal, rather than reversal on the issue of damages only, must be made. The improper references to suppression of evidence related to the issues of liability and of contributory negligence.
The judgment is reversed.
RATTIGAN and CHRISTIAN, JJ., concur.