Rupp v. Summerfield

• Decision Date: 26 June 1958
• Citation: 161 Cal.App.2d 657,326 P.2d 912
• Court: California Court of Appeals Court of Appeals
• Parties: Anthony RUPP, Plaintiff and Respondent, v. William SUMMERFIELD, Defendant and Appellant. Civ. 22947.

Page 912

326 P.2d 912

161 Cal.App.2d 657

Anthony RUPP, Plaintiff and Respondent, v. William SUMMERFIELD, Defendant and Appellant.

Civ. 22947.

District Court of Appeal, Second District, Division 1, California.

June 26, 1958.

William John Hyland, III, Beverly Hills, for appellant.

Harry P. Glassman, San Francisco, for respondent.

LILLIE, Justice.

Defendant appeals from a judgment entered pursuant to a jury verdict awarding plaintiff $3,000 general damages and $2,000 punitive damages in a malicious prosecution action.

The basis for plaintiff's claim was a criminal prosecution in which he was charged with grand theft and which was dismissed by the court after a preliminary hearing at which defendant and appellant herein testified.

On this appeal, appellant makes no claim that the evidence was insufficient to support the judgment or that the damages were excessive, but submits error on the part of the trial court in admitting into evience the transcript of the preliminary hearing and in giving certain instructions to the jury.

Plaintiff and defendant had what might be described as an intimate and close personal friendship. Almost immediately after they met, defendant gave plaintiff expensive presents, clothing, money and jewelry. He opened a joint bank account with plaintiff, giving him access, at one time, to close to $4,500 of his money. He paid for a Jaguar and Cadillac for plaintiff and rented him an apartment, partially furnishing it. They traveled extensively and when in Los Angeles defendant was a constant nightly visitor of plaintiff.

Plaintiff testified that in January of 1955, while having dinner at a restaurant, defendant gave him for his birthday his Patek Phillipe gold wristwatch and band valued at approximately $800, which plaintiff later took to a jeweler, under his own name, to have the band adjusted. Thereafter he wore the watch both in and out of the defendant's presence. On the night defendant gave him the watch he returned with plaintiff to his apartment and stayed the night. He told plaintiff that to 'convince his wife' that the watch had been lost, he would report its disappearance to the police. That evening, or the next day, defendant reported the watch 'lost and possibly stolen' to the sheriff's department and filed a claim with the insurance company, from which he recovered $850.

Witness James O'Brien testified that in the Spring of 1955 while having dinner with plaintiff and defendant, defendant called attention to the watch on plaintiff's wrist and asked him how he liked the watch he had given him.

In June, defendant's wife objected to the relationship and plaintiff decided to go to San Francisco. He told defendant he was leaving him and asked him for money for transportation, which defendant refused. To raise the necessary funds plaintiff, in his own name, pawned the wristwatch in question and a television set in Hollywood and moved to San Francisco. In July or August, 1955, the police told defendant that the watch had been recovered and had been pawned in the plaintiff's name. Immediately thereafter, a warrant was issued charging plaintiff with having stolen defendant's watch. Plaintiff was arrested in San Francisco and held in custody approximately six weeks.

On September 23, 1955, a preliminary hearing was had in the municipal court at which time defendant Summerfield testified and denied having given the watch to plaintiff Rupp. The court dismissed the criminal action against Rupp on the ground there was not reasonable or probable cause to believe he had committed the crime of grand theft.

In the instant action defendant's sole defense was that at no time had he given plaintiff the wristwatch in question.

At the trial, plaintiff's counsel offered in evidence the transcript of the preliminary hearing and the following colloquy took place:

'Mr. Glassman: * * * I will ask that this be marked as the plaintiff's exhibit in evidence, your Honor.

'The Court: No. 1.

'Mr. Hyland: Your Honor, I would like to make a query as to the admissiblity like to make a query as to the admissibility is probably material as showing the outcome of that preliminary hearing. The fact that the State did dismiss the charges against Mr. Ruff (sic), but the exhibit, for the purposes of the testimony contained therein, I think, is wholly irrelevant and immaterial to this issue here.

'The Court: Overruled.'

Appellant now claims that the court erred in admitting the transcript of the preliminary hearing because of its hearsay nature. At the trial in the court below, appellant's 'objection' to the introduction of the transcript took the form of a statement to the court, after the trial judge had marked it as an exhibit, in which he admitted its materiality to show the outcome of the preliminary hearing, conceding its admission for that purpose and said, '* * * but the exhibit, for the purposes of the testimony contained therein, I think, is wholly irrelevant and immaterial to this issue here.' (Emphasis added.)

Obviously, if the transcript was objectionable at all, it was objectionable not because it was irrelevant or immaterial as stated by appellant, but because it contained hearsay. However, he made no objection on that ground at the trial. Under the authorities, it is clear that having failed to object in the court below, he waived his objection on appeal. It is well-settled that an objection to evidence upon the ground that it is incompetent, irrelevant and immaterial is too general to include the objection that it calls for hearsay. In Keim v. D. B. Berelson & Co., 105 Cal.App.2d 154, at page 162, 233 P.2d 123, at page 128, the court stated: 'The objection which appellants made when the question was asked ('incompetent, irrelevant and immaterial') was too broad reasonably to include, and to present to court and opposing counsel, the specific objection that the question called for hearsay. 'It is well settled that when a general objection to the admission of certain evidence is overruled by the trial court, the party against whom the ruling is made cannot raise for the first time on appeal a specific objection thereto, unless the evidence is not admissible for any purpose.''

When inadmissible evidence is offered, the opposing party must object and specifically state the grounds of his objection in such a manner that it clearly informs the court of the point on which a ruling is desired and the proponent of the defect to be corrected. An objection specifying the wrong grounds, or a general objection, amounts to a waiver of all grounds not urged. Bank of America National Trust & Savings Ass'n v. Taliaferro, 144 Cal.App.2d 578, 301 P.2d 393; Keim v. D. B. Berelson & Co., supra, 105 Cal.App.2d 154, 233 P.2d 123.

If the transcript was admissible for any purpose, and appellant concedes that it was, it was properly received. However, he urges that if the evidence was admissible for a limited purpose the court should have so instructed the jury, and cites various authorities to the effect that the court had the duty to instruct the jury on the limited effect or purpose of the evidence. With the authorities cited there is no argument, but they also hold that the court's duty does not arise until counsel requests such an instruction, and unless such request is made the right to complain on appeal is waived. Hatfield v. Levy Brothers, 18 Cal.2d 798, 117 P.2d 841; Lewis v. Southern Pacific Co., 98 Cal.App.2d 358, 362, 220 P.2d 431; Inyo Chemical Co. v. City of Los Angeles, 5 Cal.2d 525, 55 P.2d 850.

The record is clear that appellant did not request, propose or submit to the trial court an instruction on the limited effect or purpose of the evidence in question. The court need not of its own motion so instruct. Appellant's suggestion that by objecting to the evidence he had in effect requested a limiting instruction is entirely without merit--first, because he has no proper 'objection' in the record and, second, because such a contention is completely contrary to the well-established rule that the opponent of offered evidence, even though he properly objects to its introduction, must request the limiting instruction or he waives his right.

Appellant's second point on appeal involves the giving of plaintiff's requested jury instructions Nos. 9, 8, 4, 3, 6 and 11. Appellant complains that plaintiff's requested instruction No. 9 which reads, 'A person who knowingly testifies falsely at a preliminary hearing in a criminal prosecution may be held liable for malicious prosecution. It is no defense that the person was subpoenaed to testify at such preliminary hearing,' is a direction to the jury that if it finds appellant testified falsely at the preliminary hearing, he was as a matter of law liable; and that the law requires more than perjury for malicious prosecution. It is not true, as suggested by appellant, that the sole basic element of an action for malicious prosecution is the initiation of a criminal proceeding, for which he cites Prosser, Torts, 860 (1st Ed. 1941). Dean Prosser continues, at page 865 in his text on Torts, and on which appellant remains silent: 'On the other hand if he advises or assists another person to begin the proceeding, ratifies it when it is begun on his behalf, or takes any active part in directing or aiding the conduct of the case he will be responsible,' and makes it clear, at page 866, that knowingly giving false information to the police constitutes advising or assisting another to begin the proceeding.

The evidence in the instant case clearly shows, and the jury so found, that the defendant was not merely a witness at the preliminary hearing but initiated the proceeding by knowingly making a false report to law enforcement officers and that he intentionally and knowingly testified falsely at the preliminary hearing. In addition, the instruction is a corollary of appellant's own proposed instruction No. 15 which was given and reads: 'One who merely...