Sandoval v. Southern Cal. Enterprises

Decision Date27 June 1950
Citation98 Cal.App.2d 240,219 P.2d 928
CourtCalifornia Court of Appeals Court of Appeals

Reginald I. Bauder and W. I. Gilbert, Jr., Los Angeles, for appellants.

Zagon, Aaron and Sandler, Los Angeles, Henry F. Walker, Los Angeles, of counsel, for appellant Southern California Enterprises, Inc.

Henry S. Cohen and Bernard B. Cohen, Los Angeles, for respondent.

MOORE, Presiding Justice.

By reason of the loss of two front teeth, lacerations, bruises and contusions of his body, the consequent shock to his nervous system as well as pain and mental anguish, respondent sued the defendants for wanton and malicious attacks upon him and demanded compensatory damages in the sum of $25,000 and punitive damages in the same amount. In a second count he claimed $15,000 compensatory damages for his malicious prosecution by the defendants resulting in injury to his reputation, hurt to his feelings, embarrassment and inconvenience and $350 for counsel fees in defending the charges against him. Also, he demanded exemplary damages in the sum of $10,000. Following a trial, a jury awarded respondent $25,000 as compensatory damages on the first count and punitive damages against defendants as follows: against Veitch, $4,500; against Haley, $1,000; against the corporate defendant, $2,000. On the second count the jury awarded respondent the sum of $10,350 as compensatory damages and against defendant Mooney, $2,500 as punitive damages. Upon such verdicts judgment was duly entered, from which came this appeal.

Respondent is a singer, musician and orchestra leader. About nine o'clock p. m. on November 20, 1947, he appeared at the front entrance of the Palladium, a dance hall on Sunset Boulevard in Los Angeles operated by the corporate defendant. He requested free admission for the purpose of conferring with the orchestra leader concerning employment. After he had been denied free admission by the ticket taker, appellants Veitch and Haley, special officers employed by Palladium, escorted him to the side entrance for the purpose of seeing appellant Mooney, assistant manager of the hall. Having been there denied free admittance, respondent purchased a ticket, but admission was again refused on the ground that he was intoxicated. Thereupon Veitch grabbed respondent by the shoulders and shoved him down the sidewalk. He then called at the rear entrance to demand a refund on his ticket but before his arrival at the ticket office, Veitch and Haley appeared, forced him to accompany them out to Argyle street which extends northward from Sunset. After going some distance, Veitch struck respondent in the face with brass knuckles, knocked him to the ground where he was brutally kicked by both officers. He was then taken back to the rear of the club, kicked and beaten several times enroute and on arrival appellant Mooney appeared. He telephoned for the police and while all were waiting, respondent attempted to rise, whereupon Mooney kicked his legs from under him.

Police Officers Bean and Lloyd of the Hollywood division took respondent in their patrol car to the Hollywood receiving hospital where he was treated for his injuries. Then he was taken to jail and booked and his fingerprints made. Subsequently he was charged with drunkenness, a misdemeanor, but upon a later trial was acquitted.

Respondent's Testimony Concerning the Occurrences at the Receiving Hospital Was Not Prejudicial.

In the course of respondent's testimony he was permitted over objection to testify to conversations between himself and the physician and between himself and the police officers for the limited purpose of showing that he had a recollection of what was said and as a part of his proof that he was not intoxicated at the time. The testimony concerned statements made by the doctor in the course of his treatment of respondent and the statements of an officer to the effect that respondent had received a 'bum deal' and of another officer who apparently scoffed at respondent's statement that he was a singer and who asked him to sing for the policemen. There was no error in admitting such testimony. If an extrajudicial utterance is offered, not as an assertion to prove the truth of the declaration, but without reference to the truth of it, the hearsay rule does not apply. When the mental state of a person at a particular time is material, evidence of such person's declarations at the time indicative of his current mental state are admissible as within an exception to the hearsay rule. People v. Kynette, 15 Cal.2d 731, 754, 104 P.2d 794; People v. Singh, 19 Cal.App.2d 128, 129, 64 P.2d 1147; Bridge v. Ruggles, 202 Cal. 326, 330, 260 P. 553; Donnelly v. State, 26 N.J.L. 463, 495; same, affirmed, 26 N.J.L. 601, 610. Such testimony was admissible upon the further ground that a person's power of perception, the accuracy of his deductions and the integrity of his memory may be greatly affected by his condition as to sobriety. People v. Salladay, 22 Cal.App. 552, 555, 135 P. 508. The testimony was especially significant in that at the commencement of the trial, appellants' counsel had stated that he had proof that respondent could not remember the names of the people he had seen on the night of his visit to the Palladium, and that he was too drunk to write his name.

No Error in Excluding a Witness' Prior Written Statement on Direct Examination.

The witness Christoffer was the ticket taker at the Argyle entrance to the dance hall. After he had testified that he did not see plaintiff 'throw punches at Mr. Veitch' appellants' counsel undertook to show the witness his statement written on the day following the tragedy. It was excluded on the theory that it was not needed to refresh the witness' recollection and that it constituted an attempt by appellants to impeach their own witness, he having testified that the statement did not refresh his recollection. Moreover, the witness had testified in court the same as he had at the time his deposition was taken. Appellants contend that under section 2049, Code of Civil Procedure, a party may impeach his own witness by showing prior inconsistent statements. They insist that (1) surprise is not a statutory requirement for the admission of a prior inconsistent statement and (2) if appellate decisions approve of such practice, it is judicial legislation forbidden to the courts, citing citing Crocker National Bank of San Francisco v. Byrne & McDonnell, 178 Cal. 329, 335, 173 P. 752; III Wigmore on Evidence, 3d Ed., page 383. But regardless of Wigmore's criticisms of the California rule, it is here established that the right to impeach one's own witness is confined to cases wherein a party is taken by surprise on account of the character of the testimony of the witness whom he has himself called under an honest belief as to what his testimony would be. Estate of Relph, 192 Cal. 451, 458, 221 P. 361; People v. Flores, 37 Cal.App.2d 282, 286, 99 P.2d 326; People v. Reynolds, 48 Cal.App. 688, 693, 192 P. 343. Whether a party is surprised at the conduct of his witness is itself a fact to be ascertained by the trial court based upon the demeanor of the surprised person. Therefore, a ruling upon an offer made on the ground of surprise is an exercise of discretion. People v. Jaggers, 120 Cal.App. 733, 738, 8 P.2d 206. Of course, there can be no surprise when a witness testifies in conformity with his deposition testimony given in the same action even though he thereafter testifies at the trial unfavorably to the person calling him. Estate of Dolbeer's, 153 Cal. 652, 661, 96 P. 266, 15 Ann.Cas. 207.

It is also contended that the court erred in permitting respondent over objection to exceed the scope of cross-examination. Christoffer had testified as to his employment, as to having seen respondent walk toward the box office and of his having been stopped by Veitch and Haley who walked respondent to the street as they held him by the arms, but he did not see them after they turned north on Argyle. On cross-examination the witness testified there was a telephone 12 feet from his station; Mooney did not come to the Argyle entrance while respondent and the two officers were on the sidewalk; respondent was not staggering but appeared sober; he did not see respondent attempt to strike Veitch; cars were parked solidly along the Argyle fence; he could not see what happened on the sidewalk; he heard Veitch yelling in the vicinity where last seen; Veitch's voice was the only one heard; the trio returned to the Palladium with Veitch and Haley holding respondent; Mooney did not appear on the scene before the trio had gone behind the Palladium; he heard respondent several times yell 'let me go.' In support of such contention, they cite People v. Montgomery, 47 Cal.App.2d 1, 18, 117 P.2d 437; and McClung v. Camp, 132 Cal.App. 55, 56, 22 P.2d 238.

Fixing the limits of cross-examination is within the discretion of the trial court. Estate of Higgins', 156 Cal. 257, 264, 104 P. 6. It is a familiar principle also that testimony which has a logical tendency to rebut an unfavorable inference which might have been drawn from the direct examination of the witness may be developed by the cross-examiner. 27 Cal.Jur. 103; 108 A.L.R. 168. Since the witness had testified on direct as to respondent's condition and that he had been told to keep on the lookout for respondent and that the officers were holding him, the jury might have inferred that respondent was denied admission because he was drunk and combative. Therefore it was proper for the witness to testify on cross-examination that respondent appeared sober. Also, having testified that he had seen respondent going up the walkway, it was at least not harmful on cross-examination for him to testify that respondent did not...

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