Philpott v. Mitchell

Decision Date12 August 1963
Citation32 Cal.Rptr. 911,219 Cal.App.2d 244
PartiesClarence Robert PHILPOTT, a Minor, etc., Plaintiff and Appellant, v. Sanford R. MITCHELL, Jr., Defendant and Respondent. Civ. 249.
CourtCalifornia Court of Appeals Court of Appeals

Young, Wooldridge, Paulden & Self and Joseph Wooldridge, Bakersfield, for appellant.

Mack, Bianco, King, Eyherabide, Means & Cooney, Henry C. Mack, Sr., Bakersfield, for respondent.

CONLEY, Presiding Justice.

Clarence Robert Philpott appeals from a judgment in favor of the defendant, Sanford R. Mitchell, Jr., in an action based upon an automobile accident which happened in Montana and caused serious and permanent injuries to the plaintiff. Both sides agree that the Montana law controls the substantive rights involved. An attempt is also made to appeal from the order denying plaintiff's motion for a new trial; as this is not an appealable order (Rodriguez v. Barnett, 52 Cal.2d 154, 156, 338 P.2d 907), that portion of the appeal must be dismissed; the order denying the motion for a new trial is reviewable on the appeal from the judgment.

Two points for reversal are urged by the plaintiff: (1) it is contended that the motion for a new trial should have been granted on the ground of newly discovered evidence; (2) it is claimed that the court committed prejudicial error by giving one of the instructions relating to the law of Montana applicable to a guest's suit to recover damages for his injuries.


In order that the impact of the motion for a new trial may be entirely clear, it is necessary to review briefly the evidence in the case itself. Three young men, the plaintiff, the defendant and one Eddie Frye lived in Bakersfield. In Jury or August of 1959 they decided to take a trip to McFarland, about 25 miles north of Bakersfield, and places farther north looking for work. The defendant had a car and offered to take the other two boys as his guests. None of them had enough money to make an extended trip, but the defendant had possession of a Mobil Oil credit card and a Bankamericard. They left Bakersfield and drove to McFarland, but found no work there; they then went south to the Mexican border, returned to Bakersfield and continued to San Francisco, afterwards to Sacramento and Placerville. They next drove to Salt Lake City and then decided to go to Montana to look for work in the wheat fields; not finding employment there, they decided to go to Canada. To be sure of getting far enough on the credit cards, the defendant had an extra gas tank installed at Great Falls, Montana; it was not an efficient job of installation; gasoline was spilled as they progressed, causing the escape of gasoline fumes. At the Canadian border they were turned back because of their youth and lack of funds. This happened late at night, possibly after midnight. The boys decided to go to the Dakotas to look for work, and they headed east on U. S. Highway No. 2, a two-lane highway running easterly and westerly across the northern part of Montana. About 20 miles west of Havre, Montana, the car overturned, and plaintiff was thrown out; he sustained injuries to his spine which have permanently paralyzed him from the waist down, causing a degenerative condition from which he will never recover and which will shorten his lifespan appoximately 25 percent.

Admittedly, the defendant had driven from Great Falls to the Canadian border and on part of the return trip; he remained at the wheel most of the day and night and up until about 2:30 to 4 a. m. of the next day. During most of the night hours plaintiff had been in the back seat asleep. About midnight the boys stopped for a sandwich and coffee at a roadside restaurant. The defendant testified he did not drive after they left the cafe and that when they were leaving the cafe he was in the back seat of the car preparing to go to sleep; later he changed his story to say that he drove away from the cafe but after a short time climbed into the back of the car and went to sleep. The accident occurred at some time between 5 and 6 a. m. on August 8, 1959. When the Montana Highway Patrol investigated, the defendant told the officer that he was driving, that he was asleep at the wheel, went off the road and turned over. The defendant was arrested and charged with reckless driving; he pleaded guilty and was fined $50, and not having the money, was committed to jail. He served four days, when his parents paid the fine, and he was released.

At the trial defendant testified that either Philpott or Frye was driving; that he had concocted the story that he was driving, because he though that his insurance coverage would not be effective if he admitted that an unlicensed minor was operating the car; that Frye had told him that Philpott was operating the car when the accident occurred; that Philpott did not remember who was the operator

Ed Frye, the third person in the car, was not called as a witness. Upon Frye's return to Bakersfield he had given conflicting statements about who was driving the automobile at the time of the accident.

Plaintiff testified that when the three were returning from Tiajuana, Mexico, he was given a ticket by a California highway patrolman for driving the defendant's car without a license and that he did not drive at any time thereafter. When the Montana highway patrolman arrived at the scene, plaintiff was lying on his stomach in the barrow pit; he was crying and in pain and told the highway patrolman his name and that the defendant Mitchell had been driving the car.

Plaintiff was taken to hospitals at Havre and at Great Falls, Montana, and from there he was flown to Bakersfield; he remained in the Memorial Hospital for about a month and was then removed to the Orthopedic Hospital in Los Angeles, where he stayed from September 1959 to March 1960; plaintiff has been under doctors' care since that time.

In support of the motion for a new trial, the plaintiff filed the affidavit of one Allen Basden, who stated that he was 19 years old and lived in Bakersfield; that he had known defendant for several years and in 1959 lived on the same street; that he learned of the accident through Frye; that about a month after Basden was informed of the accident by Eddie Frye he was in his front yard, saw the defendant and discussed the accident with him; that the defendant informed Basden that he was driving the car and ran off the road and turned over; that on November 19, 1962, Basden was served with a subpoena by a process server representing the defendant which required him to appear as a witness at the trial on November 20, 1962; that the process server asked him what he knew about the accident, and Basden stated that Frye and defendant had told him that the defendant was driving the car; that the process server then informed Basden that it was not necessary for him to appear in court to testify and that he would assume full responsibility for Basden's not appearing; that several days later Basden became concerned and went to the home of the plaintiff to ask about the case; that when he was informed that the verdict had been in favor of defendant, as defendant had testified at the trial that he was not driving the car, Basden for the first time informed the plaintiff of his conversation with the defendant in which the latter had admitted driving the car.

Plaintiff's attorney also filed an affidavit to the effect that he did not become aware of the evidence available to the plaintiff through Basden until shortly after the verdict was rendered and that there was no way that the plaintiff or his attorney could have known previously that Basden was a material witness.

Two counter declarations were filed in opposition to the plaintiff's motion for new trial, one by defendant's attorney and one by defendant. Defendant's attorney stated in his declaration that Allen Basden was subpoenaed as a witness because it was planned that he would testify as to possible adverse testimony by Frye, but that when Frye was not called, it was not necessary to use Basden as a witness. Plaintiff points out that Allen Basden was subpoenaed on November 19, 1962, and asked at that time what he knew about the case, whereupon he was immediately informed that he need not come to the trial; plaintiff asks: How could defendant or his attorney then know that Eddie Frye would not be called as a witness?

In his declaration, the defendant acknowledged a conversation with Basden occurring approximately two or three days after his return from Montana before the time he decided to tell the truth, and that from the date of the accident until he became honest in his statements, he hold not only Basden but many other people that he was the driver of the automobile at the time of the accident.

People v. Norman, 177 Cal.App.2d 59, 67, 1 Cal.Rptr. 699, 704, sets out the requirements for granting a new trial on the ground of newly discovered evidence:

'(1) the evidence and not merely its materiality must be newly discovered; (2) the evidence must not be merely cumulative; (3) a different result must be probable on a retrial of the cause; (4) the party could not with reasonable diligence have discovered and produced it at the trial; (5) these facts must be shown by the best evidence which the case admits.'

The trial court's ruling was within discretionary limits because the alleged newly discovered evidence was merely cumulative in nature, and such evidence does not entitle a party to a new trial as a matter or right. (Gaven v. Dopman 5 Cal. 342; Dayton v. Landon, 192 Cal.App.2d 739, 13 Cal.Rptr. 703.) The jury had before it at least four instances when the defendant made statements that he was driving the car at the time of the accident: (1) such admission was made to the Montana highway patrol officer at the scene of the accident; (2) the defendant appeared before the traffic judge in...

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    ...sustain the verdict.' (Caccamo v. Swanston (1949) 94 Cal.App.2d 957, 971--972, 212 P.2d 246, 255; see e.g., Philpott v. Mitchell (1963) 219 Cal.App.2d 244, 255--256, 32 Cal.Rptr. 911; Guerra v. Balestrieri (1954) 127 Cal.App.2d 511, 517, 274 P.2d 443; Martin v. Vierra (1939) 34 Cal.App.2d 8......
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