Applegate v. Wilson

• Decision Date: 20 December 1957
• Citation: 319 P.2d 401,156 Cal.App.2d 330
• Court: California Court of Appeals Court of Appeals
• Parties: Roy C. APPLEGATE et ux., Plaintiffs; Roy C. Applegate, Cross-Defendant, Respondents, v. Robert F. WILSON et al., Defendants, Suburban Gas Service, a corporation, Defendant, Cross-Complainant and Appellant. Civ. 5588.

Page 401

319 P.2d 401

156 Cal.App.2d 330

Roy C. APPLEGATE et ux., Plaintiffs; Roy C. Applegate, Cross-Defendant, Respondents, v. Robert F. WILSON et al., Defendants Suburban Gas Service, a corporation, Defendant, Cross-Complainant and Appellant.

Civ. 5588.

District Court of Appeal, Fourth District, California.

Dec. 20, 1957.

Chase, Rotchford, Downen & Drukker, Los Angeles, Stanley D. Clark, San Marino and Otto M. Kaus, Los Angeles, for appellant.

Hall, Beck & Thornton, Los Angeles, for respondents.

WAITE, Justice pro tem.

This action arose out of a collision between two vehicles shortly after 6:00 p. m. on January 11, 1954, on Santiago Canyon Road, a highway running in a northerly and southerly direction in Orange County. Roy C. Applegate, accompanied by his wife, Lenore, was driving a Nash automobile in a southerly direction on said highway and a truck owned by Suburban Gas Service was being driven by its employee, Robert F. Wilson, in a northerly direction.

Plaintiffs Applegate sued Wilson and his employer for damages for personal injuries and property damage, and defendant Suburban Gas Service filed a cross-complaint against plaintiff and cross-defendant, Roy C. Applegate, for property damage to the truck.

During the trial, and before final submission of the case, plaintiffs moved to dismiss as against defendant Robert F. Wilson only, which motion was granted. The jury returned a verdict for $7,500 in favor of plaintiffs and against defendant Suburban Gas Service, and further found in favor of the cross-defendant on the cross-complaint. From the judgment entered on these verdicts Suburban Gas Service appeals.

Appellant does not challenge the sufficiency of the evidence, and it is not contended that the amount of the judgment is excessive.

The two grounds urged for reversal are: (1) Prejudicial error by the trial court in the exclusion of certain testimony, and (2) That the dismissal as to defendant Wilson, appellant's employee, was a dismissal with prejudice, constituted a judgment on the merits, and discharged appellant from any liability.

Appellant first contends that the court erred in not permitting appellant to qualify officer Paul Kelby of the California Highway Patrol as an expert witness and in refusing to allow the officer to testify as to the point of impact between the two vehicles. The accident happened after dark on an overcast night in an area unlighted by artificial illumination other than the headlights of the vehicles on the highway, and it is urged that the sharp conflict between the versions given by the two drivers involved necessitates resort to the officer's conclusion as to the point of impact in order to resolve such conflict. Appellant has designated this as 'the crucial point on this appeal', since the vehicles met head-on in what is described as a 'left front to left front' collision and each driver, respectively, claimed to be on his right side of the highway at the moment of the impact. The witness was permitted to and did testify concerning the physical evidence be observed at the scene of the accident including the location and position of the vehicles after the collision, certain tire marks, gouge marks and other similar matters. He was not permitted to state his conclusion as to where the impact occurred as indicated to him by these physical facts. Neither was the witness allowed to testify that he considered himself 'able' or 'competent' to determine the point of impact and to testify as to his conclusion on that subject.

Appellant propounded five questions to the officer, to each of which an objection was sustained. These questions are as follows:

'Q. You are required, are you not, to draw certain conclusions in regard to what took place at the scene of an accident?

'Q. In your investigation of traffic accidents, do you attempt to draw conclusions from the physical evidence of the area, whereabouts on the road the impact occurred?

'Q. From your twelve and a half years' experience as a Highway Patrolman in investigating accidents, have you acquired the ability, because of this experience, to determine with some degree of accuracy, not simply speculation, the point of impact between two vehicles?

'Q. Now, in your opinion and because of your experience in investigating accidents of a similar nature, are you competent to testify as to a conclusion concerning the point of impact in such an accident?

'Q. From your experience as a traffic investigator, are you able to determine from marks on the pavement such as skid marks and tire marks where an accident occurred?'

Most of these alleged 'foundational' questions themselves called for conclusions and objections to them were properly sustained. The witness may not decide his own qualifications as that is a matter to be determined by the court. Appellant thereafter made the following offer of proof:

'I wish to make an offer of proof as to the testimony of this witness to the effect that this officer is trained to investigate points of impact, he has had twelve and a half years' experience in doing so and that if he could testify he would testify that the point of impact as he determined it would be four to five feet east of the center line of the road on the same side of the roadway that the truck, the pickup truck, was traveling just prior to the impact.'

An objection to the offer was sustained and the offer was rejected.

Generally, it is for the trial court to determine the competency and qualification of a witness to state an opinion, and upon appeal its ruling will not be disturbed in the absence of a manifest showing of abuse of discretion. Huffman v. Lindquist, 37 Cal.2d 465, 476, 234 P.2d 34, 29 A.L.R.2d 485; People v. Haeussler, 41 Cal.2d 252, 261, 260 P.2d 8. In the latter case and in Zelayeta v. Pacific Greyhound Lines, 104 Cal.App.2d 716, 232 P.2d 572, a traffic officer was permitted to testify concerning his opinion as to the point of impact. But the ruling of the trial court must of necessity depend on the facts of a particular case, and the discretion reposed in that court is such that in sustaining the ruling in this case it may be said that the decision of the trial court would likewise have been upheld had the court permitted the witness to testify to his opinion. See Humiston v. Hook, 86 Cal.App.2d 101, 105, 194 P.2d 122 and cases cited. Moreover, the officer's statement concerning the point of impact was before the jury in the testimony of Wilson when he testified that the...