59 Cal.App. 324, Civ. 2453, Khan v. Zemansky

Docket Nº:Civ. 2453.
Citation:59 Cal.App. 324, 210 P. 529
Opinion Judge:FINCH, P. J.
Attorney:C. E. McLaughlin and C. P. McLaughlin, both of Sacramento, for appellants. John R. Connelly and J. F. Gaffney, both of Sacramento, for respondent.
Judge Panel:We concur: ANDERSON, Justice pro tem.; BURNETT, J.
Case Date:October 13, 1922
Court:California Court of Appeals

Page 324

59 Cal.App. 324

210 P. 529




Civ. 2453.

District Court of Appeals of California, Third District

October 13, 1922

Appeal from Superior Court, Sacramento County; C. O. Busick, Judge.

Page 325

[210 P. 530] C. E. McLaughlin and C. P. McLaughlin, both of Sacramento, for appellants.

John R. Connelly and J. F. Gaffney, both of Sacramento, for respondent.


Plaintiff was given judgment against both defendants for the possession of a diamond ring or the value thereof in case delivery could not be made.

It is contended " ‘ that there is no basis for the judgment against defendant Perky. The evidence shows without dispute that he was a salesman in the store of defendant Zemansky." The complaint alleges that the defendants came into possession of the ring and retained possession thereof. The answer alleges:

" That on or about the 10th day of March, 1920, said plaintiff left with said defendants a diamond ring, which was the only diamond ring claimed, or

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in the possession of plaintiff, of which defendants or either of them ever had possession, to be sold by defendants * * * and said diamond ring was, on or about the 19th day of March, 1920, by said defendant Abe Zemansky given and returned to the possession of said plaintiff."

It is thus plain that the only issue to be tried was whether the ring had been returned. The evidence bearing on this issue was sharply conflicting. There was ample evidence, if believed, to support the implied finding of the jury that the ring had not been returned. Since the answer admits that both defendants received the ring, the judgment against Perky cannot be disturbed for want of evidence to support it.

The plaintiff is a Hindu. His wife is a white woman. Both testified at the trial. Both testified that they were husband and wife. On cross-examination both testified that they were married in Helena, Mont. The court sustained objections to questions as to the time of the marriage and refused to permit the defendants to impeach Mrs. Khan by showing that, in a trial between other parties, she had testified that she and the plaintiff were married in California. The time or place of marriage was wholly immaterial to any issue in the case. It is settled that a witness cannot be impeached on immaterial matters. Further, Mrs. Khan was not asked whether she had made the alleged inconsistent statement, and hence, there was no foundation for the impeaching question. Code Civ. Proc. § 2052.

E. C. Turney was sworn as a witness for defendants and testified that he was in Zemansky's store March 19, 1920, and there saw Zemansky deliver a diamond ring to plaintiff. He fixed the date by a sale of oil stock he made in the store on that day to one of Zemansky's employees. On cross-examination, Turney said he thought that he had sold some oil stock to W. W. McFall on the same day. In rebuttal, counsel for plaintiff called McFall as a witness, who testified that he made but one purchase of oil stock from Turney and produced the check given in payment therefor, dated May 10, 1920. He further stated that he thought the check was dated the day of the purchase, but could not say positively that such was the fact. Since Turney had fixed the time at which he saw the ring delivered to plaintiff by reference to a sale of oil stock made on that day, and stated on cross-examination that he thought he had made a sale of stock

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to McFall on the same day, the testimony given by McFall was admissible as tending in some degree to discredit Turney's statement that he was in Zemansky's store March 19th. Code Civ. Proc. § 1868; Davis v. California Powder-Works, 84 Cal. 617, 24 P. 387; Wigmore on Evidence, § 1005 (f). Even if the admission of such testimony were error, " an examination of the entire cause, including the evidence," does not show " that the error complained of has resulted in a miscarriage of justice." Const. art. 6, § 4 1/2.

The court refused to instruct the jury as follows:

" The burden is upon the plaintiff to prove...

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