Fernandez v. Di Salvo Appliance Co.

• Decision Date: 28 March 1960
• Docket Number: No. 18749,18749
• Citation: 3 Cal.Rptr. 609,179 Cal.App.2d 240
• Court: California Court of Appeals Court of Appeals
• Parties: Frank FERNANDEZ, a minor, by Fred W. McDaniel, his Guardian ad litem, and Fred W. McDaniel, Plaintiffs and Appellants, v. DI SALVO APPLIANCE CO., Elmer J. Leeman, Defendants and Respondents.

Page 609

3 Cal.Rptr. 609

179 Cal.App.2d 240

Frank FERNANDEZ, a minor, by Fred W. McDaniel, his Guardian ad litem, and Fred W. McDaniel, Plaintiffs and Appellants, v. DI SALVO APPLIANCE CO., Elmer J. Leeman, Defendants and Respondents.

No. 18749.

District Court of Appeal, First District, Division 1, California.

March 28, 1960.

James Murray, Markuse & Murray, San Francisco, for appellants.

O. Vincent Bruno, Frank C. Burriesci, San Jose, for respondents.

TAYLOR, Justice pro tem.

This is an appeal from a judgment rendered in favor of defendants on a jury verdict in a personal injury action. It is urged by plaintiffs that the trial court committed prejudicial error in allowing a witness on redirect examination to read into evidence his prior consistent statement contained in a traffic accident report.

The facts disclose that on May 23, 1956, plaintiff ¹ was operating his motorcycle in an easterly direction on Moorpark Avenue near its intersection with South Monroe Street in the city of San Jose, California. At the same time, defendants' pickup truck was approaching said intersection from a westerly direction on Moorpark Avenue. Defendant Leeman testified he slowed down, and after allowing several cars to pass, commended a left turn on to South Monroe Street. Plaintiff testified that he was going 25 miles per hour in a steady stream of traffic. The speed limit at Moorpark and South Monroe Street was 35 miles per hour. A collision occurred between plaintiff's motorcycle and defendants' truck, causing plaintiff to sustain bodily injuries. Plaintiffs contended that the accident was caused by defendant's negligence in violating the right of way, and defendants contended that plaintiff was contributorily negligent due to excessive speed and failure to maintain control of his motorcycle.

A witness named Cox testified that defendant had slowed down to five to ten miles per hour, had given an arm signal for a left turn and was actually facing south when plaintiff's motorcycle was 75 to 80 yards to the west. He further testified that plaintiff was traveling 35 to 40 miles per hour, did not diminish his speed, was turning from side to side, and veered to the right as he approached the intersection.

On cross-examination, plaintiffs' attorney established that shortly after the accident witness Cox had made an unsuccessful attempt to get plaintiff to retain a certain attorney, and also endeavored to show that Cox's statement to the effect that plaintiff's motorcycle was 'weaving around,' had not been given to the police at the scene of the accident and was a recent fabrication. Over plaintiffs' objection, the court permitted the witness Cox, in redirect examination, and for the purpose of rehabilitation, to read from the police report a statement made by Cox to the investigating officer at the scene of the accident. The statement made no reference to 'weaving' from side to side, but otherwise was generally consistent with his testimony at the trial as to distances, speeds and locations.

It was not error for the court on redirect examination to permit the witness Cox to testify to prior consistent statements for the purpose of rehabilitation. The Supreme Court of this state in People v. Kynette, 1940, 15 Cal.2d 731, 753-754, 104 P.2d 794, 806, held as follows: 'When a witness has been charged with improper motives of interest, or improper influences, or with recent fabrication, the law allows hearsay statements to be introduced for the purpose of showing that the same and consistent statements had been made at a time prior to the [alleged] fabrication or prior to the time the motive of interest existed. Such evidence is then admitted, not to prove the facts of the case, but as tending to show that the witness has not been controlled by motives of interest, and that he has not fabricated something for the purposes of the case.' (Italics added.)

The trial record clearly shows that counsel for plaintiffs had attempted to establish on cross-examination that Cox's testimony was characterized by both recent fabrication and improper motivation. The cross-examination might well have left the jury with the impression that Cox had become antagonistic toward the plaintiff after he had failed in his attempt to secure plaintiff's case for the attorney, and that he had, therefore, added to or changed his testimony. The statement given by the witness to the police officer at the scene of the accident was generally consistent with his testimony at the trial and was prior in time to the alleged fabrication or improper motivation. Thus it was clearly admissible for the limited purpose of rehabilitation after cross-examination.

Counsel for plaintiffs contends that it was improper to elicit the prior consistent statement from the witness Cox himself, but that the officer who took the statement should have been called and subjected to cross-examination. Cox testified that he made the statement as contained in the traffic accident report, and he was subjected to cross-examination on this testimony. It is not necessary to call the person to whom the statement was made. In this respect, prior consistent identifications are the equivalent of prior consistent statements and it has been held that they may be testified to for the purpose of corroboration and rehabilitation either by the witness himself or by a police officer who observed the prior identification. People v. Slobodion, 31 Cal.2d 555, 560, 191 P.2d 1.

Plaintiff relies on Buchanan v. Nye, 128 Cal.App.2d 582, 275 P.2d 767, for the proposition that Cox's statement was inadmissible hearsay. This case is clearly not in point. There, the respondent's counsel was questioning the appellant's counsel as to an absent witness' whereabouts and in doing so read the entire witness' statement from the police report. Neither rehabilitation by prior consistent statements nor any other exception to the hearsay rule was involved and the statement was clearly inadmissible. The court did observe that the statement's admission was a violation of section 488 of the California Vehicle Code. ²

Plaintiffs also rely on People v. Mayne, 118 Cal. 516, 50 P. 654. The case is not in point. There the court held it was error to permit an entry in a family Bible to prove the age of a child victim in a rape case, when the mother who made the entry was...