Kelley v. Bailey

• Decision Date: 06 March 1961
• Citation: 11 Cal.Rptr. 448,189 Cal.App.2d 728
• Parties: Earl A. KELLEY, Plaintiff and Appellant, v. Leonard T. BAILEY, Defendant and Respondent. Civ. 24804.
• Court: California Court of Appeals Court of Appeals

Page 448

11 Cal.Rptr. 448

189 Cal.App.2d 728

Earl A. KELLEY, Plaintiff and Appellant, v. Leonard T. BAILEY, Defendant and Respondent.

Civ. 24804.

District Court of Appeal, Second District, Division 2, California.

March 6, 1961.

Rehearing Denied March 30, 1961.

Hearing Denied May 3, 1961.

S. M. Dana, Hollywood, and M. E. Hennes, Los Angeles, for appellant.

Spray, Gould & Bowers, Los Angeles, for respondent.

ASHBURN, Justice.

Plaintiff appeals from judgment for defendant entered pursuant to jury verdict in a negligence action. He sought to recover for personal injuries and property damage allegedly sustained when his vehicle was struck in the rear by one owned an operated by defendant.

The cars were southbound nearing the intersection of Main Street and Slauson Avenue in Los Angeles. Defendant testified that plaintiff made such a sudden stop without signal that he was unable to avoid the collision. Plaintiff claimed that he made a gradual stop for the intersection and that defendant came headlong into him at a speed of about 35 to 40 miles an hour and knocked his car (which was momentarily in neutral as he was shifting gears) across the intersection, inflicting upon him the familiar whiplash injury.

Appellant makes no claim of insufficiency of the evidence to support the verdict, but relies upon alleged errors of the court and misconduct of opposing counsel.

Appellant's brief does not observe the fundamental requirements as to appellate briefs. Rule 15(a) of the Rules on Appeal: 'Each point in a brief shall appear separately under an appropriate heading, with subheadings if desired. Such headings need not be technical 'assignments of errors' but should be concise headings which are generally descriptive of the subject matter covered. The statement of any matter in the record shall be supported by appropriate reference to the record. Every brief shall be prefaced by a topical index of its contents and a table of authorities, separately listing cases, statutes, court rules, constitutional provisions, and other authorities.' 4 Cal.Jur.2d § 480, page 309: 'It is the office of a brief attacking a decision to point out the errors complained of, as shown in the record, to state the points on appeal separately under appropriate headings, to give arguments and authorities in support of the points made, and to show that the errors resulted in prejudice to the substantial rights of the appellant. Thus, while counsel for the appellant is entitled to be heard upon every error which he deems it his duty to raise as ground for reversal, the appellate court cannot be expected to search the record or prosecute an independent inquiry for errors on which the appellant may be relying. It will notice only those errors pointed out in the brief, and all others may be deemed waived or abandoned. Hence an appellant who fails to present a point in his brief is precluded from insisting that the court consider the matter. Not only must the appellant raise the point in his brief, but he must point out the error specifically, showing exactly wherein the lower court's action is deemed erroneous. A general objection may be ignored, such as one where the appellant merely cites the transcript and states that each ruling of the trial court objected and excepted to was erroneous, or simply states that the court erred in all respects to which exceptions were taken as described in the record.' Such assignments as those made by appellant ¹ do not suffice. However, we shall perform a substantial labor which properly belongs to counsel.

Appellant's major complaint is that 'defense counsel pursued an unwarranted interrogation and impeachment of this doctor [Morris L. Goren] in order to undermine the plaintiff's case, by utilizing material from another action and from other proceedings without proper foundation over repeated objection on Appellant's counsel.' Dr. Goren had testified to examination and treatment of plaintiff and a diagnosis that he sustained 'a strain and sprain of the muscles and ligaments of the dorsal-lumbar junction of the spine.' Also: 'In this particular individual, one must consider that he has had a kyphoscoliosis of the spine for many years, and this particular type of spine is very prone to be aggravated by an injury of the type he has had on March 29, 1958.' And: 'Doctor, did I understand you to say that this man has some permanent disability here? A. I said that he had permanent residual, due to the aggravation of the injury of his back.' On cross-examination the following occurred:

'Q. Doctor, you are being compensated for your testimony here in court, is that correct? A. I expect to be.

'Q. Doctor, is your testimony here in your reports influenced in any way by the side who has engaged your services? A. No, sir. * * *

'Q. By Mr. Spray: Doctor, has your testimony or payment for your reports and examinations ever been influenced by how much you were paid or by whom you were paid, Doctor?

'Mr. Dana: I will object to that as being irrelevant and immaterial, and asking for activity in the past not pertaining to this particular case.

'The Court: Overruled. What was your answer?

'The Witness: No.

'Q. By Mr. Spray: Doctor, didn't you in the case entitled Lewis vs. Lee on June 25, 1957, make a report of the condition of the plaintiff in that case, and send it to the plaintiff's attorney, indicating serious and permanent injury, and thereafter, when you found out----

'The Court: Let him finish the question.

'Mr. Dana: He is compounding a question already.

'Mr. Spray: Let me finish the question. Would you read what I have said so far? (Question read by the Reporter.)

'Q. By Mr. Spray: When you found out that you had been hired by the defendant to make the report, you changed your report to indicate that the plaintiff had suffered no injuries whatsoever?

'Mr. Dana: I will object to that as being compound and argumentative, and immaterial and irrelevant so far as this case is concerned.

'The Court: Overruled. You may answer. * * *

'The Witness: The question is so compounded and mixed up that I can't answer it. It is argumentative.

'The Court: You can answer that yes or no.

'The Witness: No. It is false, entirely false.

'The Court: What part of the question don't you understand?

'The Witness: Well, the whole question is set up. It is a compound question, and it is like asking me when I stopped beating my brother-in-law.

'The Court: No. It isn't. Read it again, and listen to it. Read the question again. (Question read by the Reporter.)

'Mr. Dana: Before you answer, I would like again to state my objections to that question as being compound, argumentative, assuming facts not in evidence, and an attempt to impeach a witness without showing him any documents or matters pertaining to the impeachment and incomprehensible.

'The Court: Overruled.

'The Witness: I would like to see what he is reading from.

'The Court: That is not a question for you to decide. It is for me.

'The Witness; Well, let me answer it this way then: it is absolutely false.'

Defense counsel then offered to read from the transcript of the trial of Warren v. Garrett, superior court case No. 663,325, a portion of Dr. Goren's testimony 'for impeachment purposes.' Counsel for plaintiff objected 'to him offering any such transcript, except as it may pertain to evidence as may pertain to an impeachment or attempted impeachment on this particular matter that the Court has ruled on.

'Mr. Spray: I would like to impeach the doctor.' Plaintiff's attorney enlarged upon his objections as follows: 'For the record, I would like to state my objection to the reading of theses portions of the transcript, that this foundational element regarding impeachment is based upon a compound question, and was based upon a question that assumed facts not in evidence, and it was based upon an argumentative question, and an imcomprehensible question to the witness, and the reading of this testimony and of this transcript of questions and answers, I will object to the form of the questions and to the contents of those questions and to the answers again, and I am being foreclosed from proper objections by the Court permitting this transcript to be read.' The objections having been overruled, defense counsel read to the jury from the Warren-Garrett transcript as follows:

'Q. Has your testimony or payment for your reports and examination ever been influenced by how much you were paid or by whom paid you? A. No, sir.

"Q. Didn't you, Doctor, in a case entitled, 'Lewis vs. Lee,' on June 25, 1957, make a report, a medical report covering an examination of the plaintiff in that case, and sent it to the plaintiff's attorney in which you indicated serious injury, and then thereafter when you found out that you had been paid by the defendant for your examination, did you not change your report to indicated that the lady suffered no injuries whatsoever?' Continuing on page 26, line 22.

'The Court: Doctor, answer the question.

'The Witness: It is not a fact. The facts stated are not completely factual----

'The Court: You may explain your answer if you desire, but answer it first and then explain.

"Q. By Mr. Bradish: Is the answer 'no' or 'yes'? A. Yes, and may I explain now? Because in the first place I was not paid at that particular time for any of these reports. Secondly, the reports, as I had seen them in Court, were made out on the same day because I had corrected my opinion prior to sending it out; and they were sent out to the wrong people. * * *

"Q. By Mr. Bradish: Just so we can have things straight, Doctor, your answer to my question was that you did change your report? A. Yes.

"Q. All right, now you say you were not paid at that particular time for that report. It is true, is it not, that in that particular case you were engaged by the attorneys for the defendant to examine the plaintiff to determine what the plaintiff's condition was? A. That is...