Continental Dairy Equip. Co. v. Lawrence

• Decision Date: 05 May 1971
• Citation: 94 Cal.Rptr. 887,17 Cal.App.3d 378
• Court: California Court of Appeals Court of Appeals
• Parties: CONTINENTAL DAIRY EQUIPMENT COMPANY, a California corporation, Plaintiff, Cross-Defendant and Appellant, v. Tony LAWRENCE et al., Defendants, Tony Lawrence, Defendant, Cross-Complainant and Respondent. Civ. 1326.

Page 887

94 Cal.Rptr. 887

17 Cal.App.3d 378

CONTINENTAL DAIRY EQUIPMENT COMPANY, a California corporation, Plaintiff, Cross-Defendant and Appellant, v. Tony LAWRENCE et al., Defendants, Tony Lawrence, Defendant, Cross-Complainant and Respondent.

Civ. 1326.

Court of Appeal, Fifth District, California.

May 5, 1971.

[17 Cal.App.3d 381] Jacobus, Isham & Humpal and Richard B. Isham, Visalia, for plaintiff, cross-defendant and appellant.

Carl P. Evans, Fresna, for defendant cross-complainant and respondent.

OPINION

GEO. A. BROWN, Associate Justice.

Appellant, Continental Dairy Equipment Company, a California corporation (plaintiff and cross-defendant) sued respondent Tony Lawrence (defendant and cross-complainant) for the balance due for the sale and installation of certain milking equipment. Tony Lawrence cross-complained for damages. The jury returned a general verdict against appellant and for respondent on the complaint and cross-complaint and assessed cross-complainant Lawrence's damages at $50,000. Continental Dairy Equipment Company, a California corporation, appeals from the judgment after denial of a new trial motion.

In summary, the issues raised are whether or not the verdict as to liability, proximate cause and damages is supported by the evidence, questions involving alleged procedural errors which occurred during the taking of evidence at the trial and, finally, a contention that the trial court improperly refused to consider affidavits of jurors upon appellant's motion for a new trial.

Appellant was engaged in supplying, installing and servicing dairy equipment. Respondent was a dairyman.

On December 13, 1967, appellant filed its action against respondent for $4,623.31, alleging three causes of action which were breach of contract, account stated and open book account. Appellant had furnished to respondent milking equipment and services for the installation and maintenance of the same over the period commencing approximately July 20, 1965, through approximately August 4, 1966.

Respondent answered the complaint, alleging a failure of consideration, and cross-complained for general damages in the amount of $57,442 and special damages in the sum of $6,450. ¹

Respondent cast his cross-complaint in three causes of action. In the first he alleges that the appellant 'so negligently, carelessly and wrongfully, designed, assembled, installed, equipped, supplied, furnished, serviced, repaired, inspected, connected, maintained and set up said dairy barn milking system, equipment and supplies and compenent parts thereof, so as to cause said dairy barn milking system, equipment and supplies, to be defective, dangerous and unfit for its intended use.' The second cause of action is based upon misrepresentation and the third upon breach of implied warranty of fitness for intended use and of merchantable quality.

Respondent's position at the trial was that the inadequacies and defects in the milking system and other conduct on the part of the appellant caused a mammary disease known as Mastites which in turn proximately resulted in the death of some dairy cows, excessive culling and replacement of dairy cows, loss of milk production and medical and drug expense incurred to treat the cows; he also claimed the cost of replacing a portion of the equipment installed by the appellant.

Appellant's effort on this appeal consists primarily of an attempt to re-argue the evidence introduced at the trial and to set forth the portions thereof most favorable to it. The transcript of the evidence is voluminous. The parties, both in their briefs and at the oral argument, have discussed the evidence in considerable detail. We in turn have reviewed the record in its totality, and in doing so have kept in mind the familiar principles governing an appellate court's authority on appeal. This court's power begins and ends with a determination of whether or not there is substantial evidence to support the conclusions of the trier of fact (Nelson v. Reisner, 51 Cal.2d 161, 164, 331 P.2d 17; Karas v. Karas, 107 Cal.App.2d 135, 236 P.2d 415). And if there is such substantial evidence, we must affirm even though we may feel the verdict is against the preponderance of the evidence. (Callahan v. Gray, 44 Cal.2d 107, 279 P.2d 963; Owens v. White Memorial Hospital, 138 Cal.App.2d 634, 292 P.2d 288.) All legitimate and reasonable inferences must be resolved in favor of the respondent in support of the verdict, and the appellate court will not substitute its judgment for that of the jury (Kallman v. Henderson, 234 Cal.App.2d 91, 44 Cal.Rptr 108; Romero v. Eustace, 101 Cal.App.2d 253, 225 P.2d 235; Albaugh v. Mt. Shasta Power Corp., 9 Cal.2d 751, 73 P.2d 217).

While there is substantial evidentiary conflict on essentially all issues, an independent review of the record in a light most favorable to respondent satisfies us that there is ample evidence to support the verdict of the jury, and we cannot accept appellant's view that the evidence supporting the verdict is contrary to established principles of physical science, inherently improbable or patently false. Since we have arrived at this conclusion, we see no useful purpose in extending this opinion by a detailed discussion of each of the minute points wherein appellant claims the evidence is insufficient to support the verdict.

Further, it is to be noted that the trial judge independently reviewed the evidence upon the new trial motion, including the amount of damages, and concluded that the verdict is supported. His determination is entitled to great weight by this court (Torres v. City of Los Angeles, 58 Cal.2d 35, 22 Cal.Rptr. 866, 372 P.2d 906; Graf v. Marvin Engh Truck Co., 207 Cal.App.2d 550, 24 Cal.Rptr. 511; Sturges v. Charles L. Harney, Inc., 165 Cal.App.2d 306, 331 P.2d 1072).

There appears to be some merit to appellant's contention of lack of evidence to support the second cause of action which is predicated upon allegations of misrepresentation. However, appellant has not pointed to the evidence demonstrating support for this contention as is required (Owens v. White Memorial Hospital, Supra, 138 Cal.App.2d 634 at 638, 292 P.2d 288). At any rate, the general verdict rule applies since there is substantial evidence to support the verdict on the two theories of negligence and implied warranty, and these two theories are unaffected by reversible error (Gillespie v. Rawlings (1957), 49 Cal.2d 359, 317 P.2d 601; Rawlings v. Harris (1968), 265 Cal.App.2d 452, 71 Cal.Rptr. 288; Posz v. Burchell, 209 Cal.App.2d 324, 25 Cal.Rptr. 896).

Appellant asserts the existence of several procedural prejudicial errors committed by the trial court in the taking of oral evidence, which appellant groups in the following classifications: (1) undue restriction of appellant in the examination of witnesses, both on direct and cross-examination; (2) improper examination of witnesses by respondent, both on direct and cross-examination; (3) inappropriate use of hypothetical questions; and (4) respondent's use of improperly phrased objections and interjection of argumentative matter preceding the trial court's ruling on certain objections.

In dealing with these several areas of appellant's concern, it must be kept in mind that this not a short trial and that voluminous evidence was taken. The trial lasted for six days before a jury, during which 18 witnesses testified and 41 exhibits were introduced; and, as we have already stated, there was substantial support for the jury's verdict. Certain well enunciated principles should also be kept in mind, some of which may be summarized as follows: The trial judge has very broad discretion in admitting or not admitting evidence (Evid.Code § 352) and in regulating the scope of cross-examination (Garcia v. Hoffman, 212 Cal.App.2d 530, 28 Cal.Rptr. 98); injury is not presumed from error but must be affirmatively shown (Hoyt v. Los Angeles Metropolitan Transit Authority, 210 Cal.App.2d 534, 26 Cal.Rptr. 666), which principle is also embodied in the harmless error rule (Cal.Const., art. VI, § 13; Evid.Code § 353, subdvs. (a) and (b)). The judgment will not be reversed unless the court can say the result would have been different had the error not been made (Davidson v. De Sousa, 20 Cal.App.2d 311, 66 P.2d 740; People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243).

While we believe the trial court should have permitted some the questions posed by appellant and referred to in his brief, in light of the above principles we find no error justifying a reversal. Likewise, we find no prejudicial error in the questioning by respondent of witnesses Semas, Wright and Ross.

In view of the fact that the criticized hypothetical question asked by respondent was posed of an expert witness on cross-examination, there was no error in permitting the question (People v. Busch, 56 Cal.2d 868, 16 Cal.Rptr. 898, 366 P.2d 314; Brown v. Affonso, 185 Cal.App.2d 235, 8 Cal.Rptr. 156.)

Respondent's counsel's trial technique of arguing the merits of the case upon the pretense of stating a legal objection to offered evidence and of making gratuitous remarks such as, 'Your Honor, I have been very patient'; 'I suggested as a trick question, Your Honor'; 'I object, Your Honor. I have allowed counsel wide latitude but--'; and 'I think I am about to cite counsel for prejudicial error' are not to be condoned as proper conduct, and the judge should have admonished counsel and stopped such conduct forthwith, and, in addition, should have advised the jury to disregard the statements (Sabella v. Southern Pacific Co., 70 Cal.2d 311, 74 Cal.Rptr. 534, 449 P.2d 750). However, in order that appellant may take advantage of this misconduct on appeal, he should have made a proper request that the jury be admonished, which he did not do (Sabella v. Southern Pacific Co., Supra, 70 Cal.2d 311 at 318, 74 Cal.Rptr....