Sabella v. Southern Pac. Co.

• Citation: 70 Cal.2d 311,74 Cal.Rptr. 534,449 P.2d 750
• Decision Date: 07 February 1969
• Docket Number: S.F. 22614
• Court: United States State Supreme Court (California)
• Parties: , 449 P.2d 750 Mike SABELLA, Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY, Defendant and Appellant.

Page 534

74 Cal.Rptr. 534

70 Cal.2d 311, 449 P.2d 750

Mike SABELLA, Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY, Defendant and Appellant.

S.F. 22614.

Supreme Court of California In Bank.

Feb. 7, 1969.

Louis L. Phelps, Richard H. Bailin, Dunne, Phelps & Mills and Arthur B. Dunne, San Francisco, for defendant and appellant.

Boccardo, Blum, Lull, Niland, Teerlink & Bell, Edward J. Niland and Stanley A Ibler, Jr., San Jose, for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment in favor of plaintiff under the Federal Employers' Liability Act. The jury brought in a verdict of $115,500, but by remittitur to which plaintiff consented the award was reduced to $80,000. Defendant cites as error the trial court's refusal to admit evidence of a disability pension, and purported misconduct by plaintiff's counsel. We conclude that the judgment must be affirmed.

Plaintiff Mike Sabella was injured while working as a 'carman cutter' for defendant railroad. Among other duties, it was his task to cut damaged freight cars into scrap. While doing so, plaintiff fell from the roof of a car he was cutting and sustained severe back injuries. He alleged that his fall was caused by the negligence of defendant's crane operator in moving the roof section, which had been attached to the crane preparatory to lifting the section off, while plaintiff was still walking on it; and by the failure of defendant to provide a reasonably safe place in which to work. The defense was based on a denial of negligence and an allegation of contributory negligence, which may reduce an F.E.L.A. award.

At the conclusion of the trial, and following the verdict in favor of plaintiff, defendant moved for a new trial on multiple grounds: (1) insufficiency of the evidence; (2) excessive damages; (3) disregard by the jury of the court's instructions as to contributory negligence; (4) error in law in excluding evidence of a disability pension received by plaintiff; and (5) misconduct by plaintiff's counsel. The court made an order finding 'That the evidence is insufficient to sustain the verdict of the jury; and (that there) was error in law, occurring at the trial and excepted to by defendant, and that such error was prejudicial * * *.' ¹ A new trial was denied, however, on the condition that plaintiff consent to a reduction of the verdict from $115,500 to $80,000. Plaintiff agreed and does not now challenge the propriety of the reduction.

The parties are in accord that the only 'error in law' asserted by the defendant, and that undoubtedly referred to by the court, was the exclusion of evidence of plaintiff's disability pension. Arguments as to the propriety of the remittitur in this case cannot, therefore, be premised on an assumption that the trial court also found prejudicial misconduct by plaintiff's attorney. By necessary implication, the allegation of misconduct was rejected by the trial court, and the remittitur was intended solely to rectify the exclusion of the evidence of the pension. We turn, then, to an examination of this alleged error in law and the effect of a remittitur on such error.

During the course of the trial, counsel for plaintiff proposed to read questions and answers concerning plaintiff's condition from a form which had been filled in by Dr. Calvin of the Southern Pacific Hospital. The questions read were as follows: 'May applicant's condition be expected to improve?' followed by a check mark against 'No'; 'Applicant able to work in last occupation?' followed by checks against 'At present--No'; 'May applicant be able to work in last occupation in the future?' followed by a check against 'No'; 'Type of work: Limitation to 25 pounds weight lifting, and no climbing or working on moving railroad equipment.'

Defendant sought to read into evidence other parts of this form and an accompanying letter, which would have revealed that the subject of the form was plaintiff's application to the Railroad Retirement Board for a disability pension. The purpose of such evidence, asserted defendant, would be (1) to show that the report was really based on a subjective evaluation, influenced by the opinion of the doctor that since plaintiff was applying for a disability pension, he probably could not be expected to improve because he did not want or have to go back to work; (2) to explain and identify the whole of the document of which plaintiff read only a part (citing Code of Civil Procedure section 1854, now Evidence Code section 356); and (3) to counter allegations that defendant had refused plaintiff a job and had generally turned its back on him following his injury.

Plaintiff objected on the ground that Eichel v. New York Central R. Co. (1963) 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 makes such evidence inadmissible. In Eichel, also an F.E.L.A. case, evidence was offered of receipt by the petitioner of a Railroad Retirement Act pension, in order to impeach his testimony as to motive for not returning to work and as to the permanence of his injury. The court held that 'it would violate the spirit of the federal statutes' to admit evidence of such a pension. It reasoned that Railroad Retirement Act benefits may not be considered in mitigation of damages, and there will generally be other evidence of malingering with greater probative value and less likelihood of misuse by the jury. This balance of probative value against prejudicial effect is also the law of this state, now embodied in Evidence Code section 352.

Defendant distinguishes Eichel on the ground that here plaintiff had 'opened the door' to such evidence by himself introducing a portion of the form in question. Defendant analogizes to the cases admitting evidence of insurance coverage where the opposing party has broached the subject or made such evidence necessary to explain or refute counter-evidence (see, e.g., Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 117 P.2d 841), and further contends that Eichel has been interpreted in such a manner (Gladden v. P. Henderson & Co. (3d Cir. 1967) 385 F.2d 480, cert. den. 390 U.S. 1013, 88 S.Ct. 1262, 20 L.Ed. 162).

We find it unnecessary to resolve this close question of prejudice and probative value. Upon motion for a new trial, the court obviously decided it should have admitted the evidence in question and proceeded to order the remittitur. In short, the court deemed that all the evidence, Including that which it rejected but later determined should have been admitted, was insufficient to support the amount of the award. This in no way suggests that the court considered the evidence insufficient to support Any award. (Muench v. Gerske (1934) 139 Cal.App. 438, 443--444, 34 P.2d 198.) Under the circumstances, the remittitur was proper.

Defendant, however, insists that only insufficiency of the evidence can justify a remittitur, and that a prejudicial error in law due to exclusion of relevant evidence, having deprived defendant of a full hearing by the jury on all the evidence, necessarily requires a complete new trial. No authority compels such rule and we find the contention untenable. For example, it has never been held that if evidence of certain medical expenses, relating only to the issue of damages, were wrongfully excluded the court would be forced to order a new trial on all issues. Patently this is impractical and contrary to the purposes of the remittitur procedure. If, as the trial court impliedly found here, the only defect relates to the measure of damages, and if the appropriate amount can be ascertained from the evidence, remittitur is the proper remedy to cure that defect and avoid the necessity of a new trial. ² The record supports the conclusion that the error in law here alleged was limited in effect to the question of damages. The issue of liability in this case concerned only the manner in which plaintiff cut the freight car, the actions of the crane operator, and the safety of the working conditions provided by defendant. Clearly the question whether plaintiff in fact had a permanent injury or was simply malingering, the accuracy and manner of the doctors' diagnoses, and the availability of future work for plaintiff relate to none of the above factors of liability, but only to the assessment of damages. There is no allegation that the damages as now reduced are excessive. Consequently both the application and the result of the remittitur in this case were proper, and any error in law that might have occurred was thereby cured.

But, defendant asserts, the excluded evidence might also have helped to counter plaintiff's charges--which defendant assigns as misconduct--that defendant unfairly turned its back on him after the accident, and might thus have reduced any passion or prejudice inherent therein. Assuming Arguendo that the statements in question were both improper and prejudicial, a matter to be discussed below, the remedy was not the insertion of additional prejudicial evidence, attempting in effect to counter error with error. The antidote was a timely objection and request for admonition of the jury, to remove the effect of the wrongful statements. Even more clearly than in Eichel, defendant had this less prejudicial means of making its point; as will be seen, it failed to utilize this means and cannot now complain of an inability to mitigate any prejudice that resulted. ³

We turn now to defendant's second major contention, i.e., that plaintiff's counsel was guilty of prejudicial misconduct. The alleged misconduct consisted, among other things, of repeated references, both direct and indirect, to defendant as 'inhuman' and heartless, sending plaintiff 'down the tubes' and casting him on the 'human trash pile'; as 'cheapskates' attempting to put up a 'smokescreen' by perjury and deceit so as to deprive plaintiff of his just due and put the money instead into defendant's 'coffers.' Reference was also made to the disparity in wealth between plaintiff and ...