Forte v. Schiebe

• Decision Date: 23 October 1956
• Citation: 145 Cal.App.2d 296,302 P.2d 336
• Court: California Court of Appeals Court of Appeals
• Parties: Gilbert S. FORTE, Plaintiff and Respondent, v. John M. SCHIEBE, Defendant and Appellant. Civ. 21351.

Page 336

302 P.2d 336

145 Cal.App.2d 296

Gilbert S. FORTE, Plaintiff and Respondent, v. John M. SCHIEBE, Defendant and Appellant.

Civ. 21351.

District Court of Appeal, Second District, Division 3, California.

Oct. 23, 1956.

Modification of Opinion Filed Nov. 14, 1956.

Rehearing Denied Dec. 13, 1956.

C. Douglas Wikle, Los Angeles, for appellant.

Wallace E. Wolfe and Percy V. Hammon, Los Angeles, for respondent.

SHINN, Presiding Justice.

This is an appeal by defendant from a judgment on verdict awarding plaintiff $3,250 compensatory and $3,000 exemplary damages for assault and battery.

Plaintiff and defendant are law enforcement officers. Plaintiff is Supervising Liquor Enforcement Officer, Alcoholic Beverage Control Act, Southern California; he had been a chief petty officer in the U. S. Navy for 20 years and an employe of the federal government in the days of prohibition. Defendant is a crier in the United States District Court, having previously been in the office of the United States Marshal. The parties had known each other since 1928. At the time of the events that led to the present litigation neither was engaged in the performance of official duties.

The parties lived opposite each other in San Pedro. For a long time they had been on unfriendly terms. Plaintiff testified that defendant had threatened him frequently, using toward him foul and insulting language and on several occasions had shoved him and poked him in the ribs with an elbow while they were leaving a Pacific Electric station. Defendant testified that plaintiff had threatened to kill him and his family, had thrown a rock through a window of a house of defendant's relative, had come across the street on three occasions uttering threats and using bad language until he had been taken by the collar by his, plaintiff's wife and led back home. Each denied in toto all accusations of ungentlemanly conduct upon his part, claiming to have acted only defensively at all times. As we shall see, the trial produced some tall lying.

The undisputed facts of the alleged assault were that on a Sunday morning plaintiff was traversing an alley behind defendant's residence; defendant was in the rear, in or near his garage. Lucas, defendant's brother-in-law, was in his own yard nearby. There was an altercation characterized by the use of foul language and a physical encounter in which plaintiff received injuries to his head. At this point agreement among the witnesses as to the progress of events ceased and the problem of the jurors in the realm of the credibility of witnesses commenced. Plaintiff testified that he was unarmed and was leading a Pomeranian on a leash; defendant ordered him out of the alley and without provocation struck him violently about the left cheek with a shovel. Defendant testified that plaintiff had telephoned him twice early that morning and threatened to come over and bash in defendant's skull; Lucas was in the adjoining yard and called to him that plaintiff was coming; plaintiff entered the garage and struck him with a club; he shoved plaintiff out with his shoulder, plaintiff reentered the garage twice more and may have fallen against an incinerator in the scuffle. Lucas testified that plaintiff came running down the alley carrying a club and that he warned defendant; plaintiff entered the garage. Lucas did not testify whether he saw blows struck. A neighbor of defendant's, Mrs. Blake, from her window saw Schiebe strike Forte with a shovel. Her testimony fully corroborated that of plaintiff. Another neighbor, Mrs. Hansen, a witness for defendant, testified she heard loud swearing, saw plaintiff enter defendant's garage, but was concerned that her small son finish his breakfast and did not follow further developments. Plaintiff suffered substantial injuries.

The first assignment of error to be considered is that the court allowed the introduction in evidence of a defamatory letter allegedly written by defendant concerning plaintiff upon insufficient evidence that defendant wrote the letter. The evidence was sufficient. A comparison of the typing of the letter and that of defendant's typewriter disclosed significant similarities.

Upon complaint of Forte, Schiebe was prosecuted for battery and was acquitted. Defendant questioned plaintiff on cross-examination whether Schiebe had not been acquitted. Plaintiff's objection was sustained and the ruling is assigned as error. As nearly as we can understand from the record the fact of the acquittal was offered to prove that plaintiff, having instituted an unsuccessful prosecution of defendant, would feel frustrated, and biased and prejudiced in his testimony. The court ruled at one time that the judgment would be admitted, if produced, but the matter appears to have been dropped. We need not discuss the admissibility of the evidence. According to plaintiff he suffered from more than frustration. Moreover, time and again it was stated by the court and counsel in the presence of the jury that defendant had been acquitted. Plaintiff's attorney requested that the jury be instructed to disregard the discussion of the acquittal but the court declined to do so saying: 'Oh, don't get worried. That jury is there performing a function.'

Next defendant offered in evidence the record of a civil suit of Forte v. Schiebe. Plaintiff's objection was sustained. The record does not disclose the nature of the action except by vague statements which cast no light on the subject. However, we recognize the action as one that was before us in 1949 and is reported in 93 Cal.App.2d 22, 207 P.2d 881. It is now asserted that plaintiff and his witness O'Malley, who testified in the present case to verbal abuse of plaintiff by defendant in the Pacific Electric Railway Station, testified in the same manner in the former case, and that since the court in that case found the allegations of such abuse to be untrue, the former judgment is conclusive of some material issue in the present case. Counsel says 'The record of the prior case was offered as conclusive evidence upon the issue of malice upon which Respondent had offered testimony in the instant trial.' There is no logic in this argument. It appears to have been born of the confusion during the trial in connection with defendant's endeavor to introduce the records of the former cases.

We now come to the assignment of error attributed to the allegedly prejudicial remarks of the trial court. Counsel for defendant cited to the court the case of Marriott v. Williams, 152 Cal. 705, 93 P. 875, to the proposition that the fact that Forte had unsuccessfully prosecuted Schiebe for assault would tend to prove bias and prejudice affecting Forte's testimony in the present case. In the cited case there was also a question of malice. In the discussion of defendant's offer of the record in the civil case, it was confused with the offer of the record in the criminal case and the question of bias of plaintiff as a witness was confused with the question of malice of the defendant in the assault. During the discussion the court made remarks as follows:

'For a half a dozen good legal reasons the objection to the introduction of that record will have to be sustained. It has nothing to do with this case. The sole purpose that it could ever be used for would be to prove malice, and that, as this court says in this case, is so evident here by the actions of the parties that it is patent that no one can deny that they had the malice. * * *

'Mr. Wolfe: If your Honor please, if there are to be any more statements, may they be made out of the hearing of the jury?

'The Court: No. The jury is part of this court.

'Mr. Wolfe: I realize that, but, if your Honor please, we are now arguing the admissibility----

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