Causey v. Cornelius
| Citation | 330 P.2d 468,164 Cal.App.2d 269 |
| Court | California Court of Appeals Court of Appeals |
| Decision Date | 16 October 1958 |
| Parties | Square CAUSEY, Plaintiff and Appellant, v. Robert Leon CORNELIUS and Pacific Intermountain Express, Defendants and Respondents. Square CAUSEY, Plaintiff and Respondent, v. Robert Leon CORNELIUS and Pacific Intermountain Express, Defendants and Appellants. Civ. 23123. |
Hecker & Dunford, Bruce L. Wolfson, Beverly Hills, for appellant-respondent Causey.
Early, Maslach, Foran & Williams, Victor Williams and Donald J. Pierr, Los Angeles, for appellants-respondents Cornelius and Pacific Intermountain Express.
This is an action to recover damages for personal injuries growing out of an accident between an automobile in which the plaintiff was riding and a truck and trailer of defendant Pacific Intermountain Express which was being operated by defendant Cornelius. The jury returned a verdict for $5,000 in favor of plaintiff.
The trial court granted defendants' motion for a new trial on the theory that counsel for plaintiff improperly and prejudicially injected and emphasized the question of insurance of the so-called voir dire examination of a defense witness (an investigator for defendants' insurer) who was called to testify concerning a telephonic recording made by the witness of a conversation he had with the driver of the car in which plaintiff was riding. Plaintiff has appealed from the order. Defendants have appealed from the judgment.
Plaintiff and two friends, White and Conway, drove to Fontana on the evening of December 4, 1955, to have dinner with friends. They ate at about twelve o'clock and left Fontana about 2:00 o'clock in the morning on their return trip to Los Angeles. The accident occurred about half an hour later on the Etiwanda Road between Fontana and Los Angeles when the car in which plaintiff was riding collided with the truck and equipment in question, which was some 57 feet in length. A light mist was falling at the time. Plaintiff's testimony is that the car in which he was riding was following the truck, traveling at about the same rate of speed; that the truck stopped a couple of times but the driver of the car, White, was able to avoid an accident by the sudden application of his brakes. White then decided to pass the truck but when he pulled out beside it he discovered a sign, 'Stop Ahead,' and realizing he could not pass the truck in the short distance between it and the sign decided to fall back behind the truck, whereupon it stopped suddenly and his car collided with the left rear of the truck, resulting in injuries to the plaintiff who was riding on the right side of the front seat.
According to the testimony of Cornelius, the truck driver, he made one stop in a normal manner for a boulevard stop about two miles from the scene of the accident; he later slowed down for a railroad crossing at which time he put on his blinker; as he came to the 'Stop Ahead' caution sign he again put on his blinker lights and started slowing down; there was a warning sign on the right side of the highway and another painted on the highway itself, both about 500 feet from the intersection; before commencing to apply his brakes, he looked in his rear-view mirror and saw the lights of a car approximately 500 feet back; he gradually slowed down his trucking equipment until he reached a speed of eight to ten miles per hour when his vehicle was struck in the rear; the point of impact was 134 feet from the nearest line of the intersection. After the accident Cornelius went back to see if anyone in the car was hurt; White, the driver, was out of the car; according to Cornelius, White weaved back and forth as he walked; there was a strong odor of alcohol on the breath of all three men, but White was not 'exactly drunk.' Cornelius also said the other passenger, Conway, finished a Vodka bottle soon after the collision. Plaintiff testified that he had had one small drink of scotch and milk at four o'clock in the afternoon, and had nothing else to drink; during that same period of time he and White had been together and the latter had done no drinking; that there was no bottle in the car when they left Fontana nor did they take turns drinking. White swore that he had had one bottle of beer in the morning and nothing else that day. Conway was in the east at the time of trial.
Officer Smith of the Highway Patrol testified that he detected no odor of alcohol on plaintiff, but the driver, White, had alcohol on his breath and there was a profound odor of same in the car. The officer gave White a roadside sobriety test which he passed; the officer concluded that, although White's ability was impaired, he was nevertheless able to drive a car properly. The witness saw no bottle. He further noted that the tail lights on the truck were lighted and that the brake light was operative. The automobile left 32 feet of locked wheel skid marks.
The record of the hospital signed by the doctor where plaintiff was taken showed that his '[a]ctions support intoxication; odor of alcohol; cooperation poor * * *.'
The so-called voir dire examination of the investigator (Weaver) was as follows:
'Q. Mr. Weaver, you say that you are an investigator? A. Yes, that's correct.
'Q. Working for whom? A. The Truck Insurance Exchange.
'Q. Is that an insurance company? A. Right.
'Q. And you were told by that insurance company to make this recording? A. Well, that was part of the job of investigating the accident, yes, interviewing Mr. White. * * *
'Q. Yes. Now, this investigation that you made for this insurance company, was that made in reference to the accident that occurred on December 4, 1955? A. Yes, it was in connection with that accident. * * *
'Q. At the time you informed Mr. White who you were you didn't tell him you were working for an insurance company, though, did you? A. No, I did not. I told him I represented the Pacific Intermountain Express [the other defendant], which, of course, I did.
1
Counsel for defendant neither objected to this testimony nor did he move to strike the questions and answers.
We shall first consider the propriety of the court's ruling on the defendants' motion for a new trial.
The trial judge, though expressing the opinion that the verdict was wrong, expressly refused to base the granting of the new trial upon the ground of insufficiency of the evidence and caused a minute order to be entered granting the motion 'on the grounds that plaintiff introduced insurance into the case and thereby prejudiced the jury in the plaintiff's behalf.' The evidence is such that we would feel obligated to affirm the order had the ruling rested upon insufficiency of the evidence to support the verdict, but the form of the order precludes our considering insufficiency of evidence as a ground for sustaining the ruling. Code Civ.Proc. § 657. The ruling as made does not square with the authorities or with sound judicial administration.
In the first place, the questions concerning insurance (assuming arguendo that they were improper) could not be capitalized upon motion for new trial because of the fact that no objection was made to any of them, no motion made to strike any question or answer, no motion for a mistrial, and no cautionary instruction to the jury requested. In Hatfield v. Levy Brothers, 18 Cal.2d 798, 813, 117 P.2d 841, the cross-examiner brought out the fact that defendants' representative told plaintiffs immediately after the accident that defendants were insured. No objection or motion having been made at the time, defendants' counsel, after the witness was excused and both parties had rested, charged plaintiffs' counsel with misconduct and moved for a mistrial, which was denied. The Supreme Court held there was no error in this ruling, saying 18 Cal.2d at page 813, 117 P.2d at page 849: The judgment was affirmed. In the case at bar the court at defendants' request and at the close of the case instructed the jury as follows:
In Gluckstein v. Lipsett, 93 Cal.App.2d 391, 209 P.2d 98, a physician upon cross-examination brought out the existence of insurance. In rejecting the claim of prejudicial misconduct the court said, 93 Cal.App.2d at page 404, 209 P.2d at page 106: ...
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