Payette v. Sterle

• Decision Date: 12 April 1962
• Citation: 202 Cal.App.2d 372,21 Cal.Rptr. 22
• Court: California Court of Appeals Court of Appeals
• Parties: Raymond A. PAYETTE, Plaintiff and Respondent, v. John Henry STERLE, Defendant and Appellant. Civ. 25534.

Page 22

21 Cal.Rptr. 22

202 Cal.App.2d 372

Raymond A. PAYETTE, Plaintiff and Respondent, v. John Henry STERLE, Defendant and Appellant.

Civ. 25534.

District Court of Appeal, Second District, Division 4, California.

April 12, 1962.

Parker, Stanbury, Reese & McGee and Daren T. Johnson, Los Angeles, for defendant and appellant.

Oliver, Good & Sloan, John K. Sloan and Henry E. Kappler, Los Angeles, for plaintiff and respondent.

JEFFERSON, Justice.

Defendant appeals from a judgment for plaintiff in an action for personal injuries and property damage arising from an automobile collision. Since no question is raised as to the sufficiency of the evidence to support the judgment reference to the evidence introduced at the trial will be made only when pertinent to the issues on appeal.

Defendant first contends the trial court erred in restricting his cross-examination of plaintiff and a witness called by plaintiff.

More than three years before the accident, which occurred on January 1, 1957, plaintiff, a world war veteran, suffered a nervous breakdown. He was treated at a veterans hospital from April until October of 1954, when he was released. At the trial, one factual issue concerned plaintiff's mental state prior to the accident since this was relevant to his earning ability and the extent to which his condition was aggravated by the accident.

A witness called by plaintiff, one Bushnell, testified that he had seen plaintiff nearly every day from 1953 until the time of the accident. In later testimony the witness indicated that he meant he had seen plaintiff every day after plaintiff was released from the hospital in 1954. He stated that until plaintiff was involved in the accident 'he was pretty well over his nervous condition' and 'seemed to be getting along pretty well.' Upon cross-examination defendant sought to inquire whether or not plaintiff, before April of 1954, had told the witness 'he had a marked fear of the police and feared that the police were talking about him.' Plaintiff's objection to the question was sustained. Thereupon, the judge excused the jury and the witness and admonished defendant's counsel that from such a reference to 'police' the jury might infer improperly that plaintiff had a police record. Counsel conceded he was unable to establish that the witness had ever committed a felony. It further developed that counsel had not interviewed the witness but had learned of plaintiff's previous nervous breakdown and of certain symptoms plaintiff experienced during that illness and while under treatment at the hospital. Defendant's counsel asserted he had reviewed the Veterans' Administration records. He stated his intention to inquire of the witness whether plaintiff had ever told the witness that he felt 'police were talking about him,' and that 'birds were swooping down on him.' Counsel for plaintiff objected that these questions had prejudicial tendencies and should not be heard by the jury. The court agreed.

For purposes of preserving the record for appeal counsel stipulated in effect that the questions on these subjects would be asked out of the presence of the jury and the witness, but just as if they were present; and, after plaintiff objected to each question, the court could rule on the objection. Counsel for defendant then asked in substance whether during the period from the beginning of 1954, through the end of 1957, plaintiff told Bushnell (1) he had the feeling the police were talking about him; (2) he was having difficulty holding a job; (3) he felt a need to tell lies; (4) dogs barked at him and birds swooped down on him whenever he walked down the street; and (5) did the witness know that plaintiff was a mental patient who suffered from delusions in which he imagined everyone and everything was plotting against him? The court sustained the objections of counsel which were principally on the ground that the questions would be prejudicial to plaintiff.

The objections were properly sustained. The chief purpose of cross-examination is to assist the trier of fact in determining the weight to be given to testimony elicited on direct examination. This purpose is accomplished through testing the credibility, knowledge and recollection of the witness. (Sharp v. Hoffman, 79 Cal. 404, 408, 21 P. 846.) The right of cross-examination is fundamental to due process of law, and, although scope of cross-examination in this state is limited to testimony received on direct examination (Code of Civ.Proc. § 2048), there is a wide latitude allowed in testing credibility. (Newman v. Los Angeles Transit Lines, 120 Cal.App.2d 685, 691, 262 P.2d 95.) Whether the probative value of a question on cross-examination is outweighed by its prejudicial effect is a matter for the determination of the trial court, and its ruling will not be overturned absent a manifest abuse of discretion.

These inquiries pertained to symptoms of plaintiff's mental illness which had occurred prior to and during the time plaintiff was in the hospital. The witness had testified only concerning plaintiff's mental condition after he was released from the hospital. Therefore, the question as to whether there was a satisfactory recovery prior to the accident was partially obscured. Although defendant's counsel knew from the Veterans' Administration records that plaintiff had had such symptoms when in the hospital it was not shown that counsel had any basis for believing plaintiff had expressed these symptoms to the witness at any time or that he had any knowledge of them. From these facts it is apparent the trial court concluded that counsel was merely on a fishing expedition and that the harm which could result to the plaintiff outweighed any possible detriment to the defendant.

In sustaining the objections to these questions the court made it clear that it was not foreclosing defendant from asking questions covering the same or similar subject matter but couched in a different or less prejudicial form. We cannot say under these circumstances that the court abused the broad discretion vested in it in the conduct of a trial.

While cross-examining plaintiff defendant again inquired upon the same subject matter, and plaintiff objected on substantially the same grounds recited above. The court sustained the objections whereupon defendant made an offer of proof in substance that since January 1, 1954, plaintiff suffered from symptoms of a mental disease; that he had hallucinations the police were talking about him; that dogs barked at him; that birds swooped down on him when he walked down the street, and that he felt a need to tell lies; and that as a result of these symptoms he had been unable to obtain employment except for approximately three months in the summer of 1957.

The court sustained plaintiff's objections to the offer of proof. The offer of proof was material to the credibility of plaintiff and the witness Bushnell as well as to plaintiff's earning capacity before the accident and the aggravating effect of the accident upon plaintiff's pre-existing nervous condition.

We find that the action of the trial court in sustaining plaintiff's objections was not prejudicial in light of the evidence in the record as a whole.

The substance of the testimony by plaintiff and Bushnell pertained to plaintiff's health after leaving the hospital in October 1954. The effect of the proof...