Mize v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 25 March 1975
• Docket Number: MILLER-BONSALL
• Citation: 120 Cal.Rptr. 787,46 Cal.App.3d 436
• Court: California Court of Appeals Court of Appeals
• Parties: James S. MIZE, as administrator of the Estate of Charles E. O'Dell, Deceased, Plaintiff and Respondent, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Defendant, Cross-Complainant, Appellant and Respondent. FELDMAN COMPANY, Plaintiff and Respondent, v.COMPANY and P. J. Walker, Defendant, Cross-Defendant, Respondents and Appellants. Civ. 44234.

Page 787

120 Cal.Rptr. 787

46 Cal.App.3d 436

James S. MIZE, as administrator of the Estate of Charles E. O'Dell, Deceased, Plaintiff and Respondent, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Defendant, Cross-Complainant, Appellant and Respondent.

FELDMAN COMPANY, Plaintiff and Respondent, v. MILLER-BONSALL COMPANY and P. J. Walker, Defendant, Cross-Defendant, Respondents and Appellants.

Civ. 44234.

Court of Appeal, Second District, Division 5, California.

March 25, 1975.

James H. Davis Los Angeles, for plaintiff and respondent James S. mize.

John J. Balluff and Donald W. Ricketts, Los Angeles, for defendant, cross-complainant, appellant and respondent Atchison, Topeka & Santa Fe Railway Co.

Alfred D. Freis, Los Angeles, for plaintiff and respondent Feldman Co.

Richard G. Flanagan and Allan S. Garber, Panorama City, for defendant, cross-defendant, respondents and appellants Miller-Bonsall Co. and P. J. Walker.

WHYTE, ^* Associate Justice.

In the predawn hours of August 30, 1968, one Charles E. O'Dell, ¹ while working in the scope and course of his employment with defendant and Atchison, Topeka and Santa Fe Railway Company was riding on the side of a railroad car which became derailed while it was being pushed in a westerly direction along a public street colloquially known as 'Coke Alley.' On the days immediately preceding the accident the defendants Miller and Walker, as contractors, were engaged in installing asphalt paving on a lot owned by Coca Cola Bottling Company of Los Angeles ² adjoining the track. After being derailed, the car struck a building owned by Feldman Company which was situated on the north side of the tracks. O'Dell, who was riding on the northwest corner of this car, was crushed between the car and the building, receiving injuries from which he later died.

Plaintiff Mize ³ as administrator of O'Dell estate brought suit for the benefit of his heirs for wrongful death against defendant Santa Fe under the Federal Employers Liability Act and against all defendants on the theory of common-law negligence. Plaintiff also brought action against defendant Santa Fe for damages sustained by O'Dell before his death for personal injuries.

In a separate action, consolidated for trial, plaintiff Feldman brought action for damages in the nature of lost profits from and damages to its building. This complaint was against all three defendants, Santa Fe, Miller and Walker and sounded in negligence.

The defendant Santa Fe brought a cross-complaint for declaratory relief for a right of indemnity against the other two defendants.

After trial, before a jury, on the issues of liability and damages and before the court sitting without jury on the issue of indemnity, judgments were entered on April 3, 1973, as follows:

In favor of plaintiff Mize and against all defendants for damages on account of wrongful death, $50,000.00.

In favor of plaintiff Mize and against defendant Santa Fe for personal injuries to O'Dell, $35,000.00.

In favor of plaintiff Feldman and against all defendants for damages to building, $15,861.22.

In favor of cross-defendants Miller and Walker and against cross-complainant Santa Fe on the cross-complaint seeking indemnity.

The defendant Santa Fe satisfied the judgment and made a motion for contribution from Miller and Walker as joint tortfeasors. This motion was granted and a judgment for contribution signed on May 11, 1973.

Defendants and cross-defendants Miller and Walker appealed from the judgments of April 3, 1973 and May 11, 1973. Defendant and cross-complainant Santa Fe appealed from the judgment of April 3, 1973, insofar as it denied cross-complainant relief on its cross-complaint.

Appeal of Miller-Bonsall Company and P. J. Walker Company from Judgment for Plaintiff

Miller and Walker urge five grounds for reversal:

(1) The trial court committed prejudicial error by violating the attorney-client and attorney's work product privileges when it allowed plaintiff's counsel to inspect a part of the file of Miller's investigator William Bosley, who was called as a witness by defendants Miller and Walker.

(2) Respondent's attorney was guilty of prejudicial misconduct by making improper appeals for sympathy.

(3) The damages awarded were excessive.

(4) The question of contributory negligence should have gone to the jury.

(5) The trial court erred in allowing Ray Hyson and Charles Hanson to testify as experts.

Warren Bosley was called as a witness for defendants Miller and Walker. He testified that he was an independent investigator who made an investigation on behalf of Miller. On direct examination he testified concerning certain photographs taken in his presence and to personally observing that certain bolts were missing from a fishplate connecting two rails. He was cross-examined extensively regarding his observations of the fishplate, bolts and condition of the rails. He was then asked if he made any attempt to ascertain whether any asphalt had been on the tracks that caused the detailment. He stated he had and was further examined as to what he had done. In the course of this questioning he testified he interviewed and took statements from Miller's employees and talked by telephone to Mr. Wright, an employee of defendant Walker. All this was done without any objection on the part of defendants Miller and Walker. After this he was further questioned about the photographs. He was then asked, 'Q. Following your investigation, did you make any recommendations to Miller-Bonsall regarding this matter?' The attorney, representing defendants Miller and Walker objected, stating, 'This is going into the work produce and attorney-client privilege.' After some discussion during which the court expressed the opinion that the conclusion of the investigator might be irrelevant, counsel stated, 'I will withdraw my objection, your Honor.' The court nevertheless refused to permit the parties to go into the matter of the opinion of the investigator.

Thereafter the witness was asked if within the last few days he had examined his file and whether it had refreshed his recollection so he could testify. He stated it had, 'to some extent.' After some discussion, during which the witness stated he could remember his investigation generally but 'As to specific dates and that sort of thing, of course, I could not remember those,' without refreshing recollection, the court instructed the witness, 'Produce your file, that part which you did read over and refreshed your memory and we will take a look at it.' The court was very careful to require the witness to segregate that part of the file which he had actually used to refresh his recollection from that which he had not so used. Only that which the witness stated was used to refresh recollection was exhibited to counsel and ultimately marked exhibit YY. Counsel for Miller and Walker asked to see the material first, but gave no reason why he desired or should be allowed to do so. When the court stated both counsel could look at the material at the same time and instructed them to take it back by the rail to do so, the record reveals the following transpired:

'(COUNSEL): Your Honor, I would again object to this. There is privileged correspondence that counsel is now looking at and work product.

'THE COURT: Have you seen it?

'(COUNSEL): I would represent to the court this gentleman did not refresh his memory from this correspondence. The only thing he refreshed it from is his time chart, at least in our conversation this morning that is what he indicated to me.

'(COUNSEL FOR SANTA FE): The witness testified to the contrary.

'THE COURT: We have heard what he said.' Without giving the number of the section, the trial judge referred to those provisions of Evidence Code section 771 which provide that if a witness, either while testifying or prior thereto uses a writing to refresh his memory as to any matter about which he testifies, such writing must be produced and may be inspected on behalf of the opposing party. ⁴ Counsel thereupon pursued his objection as follows:

'(COUNSEL): Your Honor, again I question as to refreshing his recollection. This gentleman earlier said he has a present recollection of the events and did not need these items to refresh his recollection except on a few items as to these few items I have no objection, but to search our files and our investigation, his work product is an attorney-client privilege. ⁵

'THE COURT: Objection overruled. The privilege claim is denied.'

On appeal counsel strongly urges that in the actions above outlined, the trial court violated appellant's work product and lawyer-client privileges. He overlooks a fundamental and fatal weakness which destroys this claim. Counsel never presented a proper objection to the trial court. It is not enough that he merely state that something is either work product or within the lawyer-client privilege. The burden is upon him to prove the preliminary facts to show that the privilege applies (Tanzola v. De Rita (1955) 45 Cal.2d 1, 6, 285 P.2d 897; See also Collette v. Sarrasin (1920) 184 Cal. 283, 193 P. 571.)

Evidence Code section 400 defines preliminary fact as a fact upon which depends the admissibility or inadmissibility of evidence and includes therein such facts as show the existence of a privilege. In the Comment of the Assembly Judiciary Committee to Evidence Code section 405, it is declared, 'Under this code, as under existing law, the party claiming a privilege has the burden of proof on the preliminary facts.'

Where reports or statements of an employee are concerned D. I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 36 Cal.Rptr. 468, 388 P.2d 700, formulates several tests by which the applicability of the lawyer-client privilege on behalf of a corporate employer-client is to be determined. No attempt was made at the time of trial to show that any of these tests were met. (Generally on the burden of proof of the existence...