Goodrich v. Edgeworth

• Decision Date: 23 March 1956
• Citation: Goodrich v. Edgeworth, 294 P.2d 1037, 140 Cal.App.2d 224 (Cal. App. 1956)
• Court: California Court of Appeals
• Parties: Margaret GOODRICH, Virginia Shull, Lane Williams, Ray Williams, Sidney Williams, Rowland Williams, and Howard Williams heirs of Nancy M. Bryant, deceased, Plaintiffs and Appellants, v. Joe EDGEWORTH, doing business under the firm name and style of Tulare Ice Company, Leonard Dewaine Brownlee and Leonard S. Brownlee, Defendants and Respondents. Oliver Earl BRYANT, S. Ellis Bryant, Olean Jackson, Leroy S. Bryant, William S. Bryant, Ethel Baird, Vernie Starbuck, Robert Bryant and James Bryant, heirs of Wiley S. Bryant, deceased, Plaintiffs and Appellants, v. Joe EDGEWORTH, doing business under the firm name and style of Tulare Ice Company, Leonard Dewaine Brownlee and Leonard S. Brownlee, Defendants and Respondents. Civ. 4982.

Page 1037

294 P.2d 1037

140 Cal.App.2d 224

Margaret GOODRICH, Virginia Shull, Lane Williams, Ray Williams, Sidney Williams, Rowland Williams, and Howard Williamsheirs of Nancy M. Bryant, deceased, Plaintiffs and Appellants, v.Joe EDGEWORTH, doing business under the firm name and style of Tulare Ice Company, Leonard Dewaine Brownlee and Leonard S. Brownlee, Defendants and Respondents.

Oliver Earl BRYANT, S. Ellis Bryant, Olean Jackson, Leroy S. Bryant, William S. Bryant, Ethel Baird, Vernie Starbuck, Robert Bryant and James Bryant, heirs of Wiley S. Bryant, deceased, Plaintiffs and Appellants, v.Joe EDGEWORTH, doing business under the firm name and style of Tulare Ice Company, Leonard Dewaine Brownlee and Leonard S. Brownlee, Defendants and Respondents.

Civ. 4982.

District Court of Appeal, Fourth District, California.

March 23, 1956.

Rehearing Denied April 18, 1956.

Hearing Denied May 15, 1956.

Lane Williams, San Fernando, for appellants.

Crowe, Mitchell & Hurlbutt, Visalia, for respondents.

MUSSELL, Justice.

These are actions for the alleged wrongful deaths of Wiley S. Bryant and Nancy M. Bryant, who were killed in a collision between a car in which they were riding and an ice truck driven by Leonard D Brownlee, an employee of defendant ice company.The actions were tried in the superior court in Tulare county in October, 1953, and a jury returned a verdict in favor of the defendants in both actions.Plaintiffs appealed from the judgments thereupon entered and said judgments were affirmed on appeal by this court on May 27, 1954, in Bryant v. Tulare Ice Co., 125 Cal.App.2d 566, 270 P.2d 880.On January 3, 1955, appellants filed in the superior court a notice of motion to vacate and set aside the judgments on the ground of extrinsic fraud, in that the plaintiffs were prevented from fully 'exhibiting' their case by the actions of the defendants in casuing the absence of a material and necessary witness at the trial.Plaintiffs here appeal from the order denying said motion.

The notice of motion contained the statement that it would be supported by the attached affidavits of James F. Reese and Lane Williams and by oral evidence to be introduced at the hearing thereon.

Reese stated in his affidavit that he was one of the attorneys for the plaintiffs; that on or about October 26, 1953, he contacted one George L. Jones in his garage in Tulare; that Jones stated he had examined the truck involved after the accident; that there was nothing at all wrong with the front wheel assembly and that he could find nothing out of order with it; that a subpoena was served on Jones but he failed to appear at the trial; that he searched for Jones for about one and one-half hours but was unable to find him.

Lane Williams stated in his affidavit that he was with Reese when Jones was interviewed and heard Jones state that he had inspected the front end assembly of the truck and had found nothing wrong with it; that it was also understood that Leonard D. Brownlee had stated in the presence of Jones and others that he and his boy friend, who was with him at the time of the collision, had a bee in a cup of ice while they were driving along the highway prior to the collision; that after the trials were concluded, affiant felt that the circumstances surrounding the absence of witness Jones should be investigated but that he did not wish to jeopardize plaintiffs' right to appeal and therefore delayed such investigation until such appellate procedure was exhausted; that further delay was due to the fact that Mr. Reese had not been available to secure his affidavit.

On January 17, 1955, plaintiffs' motions were heard and Jones was called as a witness for the plaintiffs.He was questioned by plaintiffs' counsel as to his residence and occupation and the service of the subpoena upon him, but was not asked why he did not appear at the trial or whether he had heard the defendantLeonard Brownlee make any statements after the accident, or whether he, Jones, had made any statements relative to the condition of the truck.

An investigator for the plaintiffs testified that during September, 1954, he questioned Jones as to his reasons for not appearing as a witness.Counsel for defendants objected to the introduction of statements made by Brownlee to Jones on the ground that such statements, if any, were hearsay.The objection was sustained and plaintiffs then made an offer of proof, after which the court declined to change its ruling.Plaintiffs' counsel then suggested a continuance to secure the presentation of the defendant at the hearing and apparently this motion was denied.

The evidence presented at the hearing on the motion to vacate the judgments reasonably supports the inference and the implied findings of the court that plaintiffs failed to establish extrinsic fraud or that the plaintiffs were prevented from fully exhibiting their case by the acts or conduct of the defendants.Under such circumstances we cannot interfere with...