Shaff v. Baldwin
| Citation | 107 Cal.App.2d 81,236 P.2d 634 |
| Court | California Court of Appeals |
| Decision Date | 25 October 1951 |
| Parties | SHAFF et al. v. BALDWIN et al. Civ. 14629. |
Ricksen, Freeman & Johnson, Oakland, Belli, Ashe & Pinney, San Francisco, for appellant.
Donald H. Baldwin & Joseph M. Hissong, Hoge, Pelton & Gunther, San Francisco (Reginald M. Watt, San Francisco, of counsel), for respondents.
Clark & Heafey and Edwin A. Heafey, all of Oakland, for respondents, E. J. Willig and E. J. Willig Truck Transp. Co.
This is an appeal by the plaintiff in a negligence action. Walter A. Shaff, the minor plaintiff, was seriously injured in a collision between the automobile he was driving and a tractor owned by defendant Baldwin and driven by defendant Hissong, which tractor was pulling a trailer owned by defendant E. J. Willig Truck Transportation Co. Near the end of the trial a motion to render a nonsuit as to the defendant E. J. Willig personally was granted on stipulation and a motion to the same effect made on behalf of E. J. Willig Truck Transportation Co., on the ground that that company was not an employer of Hissong but that between the company and Hissong's employer Baldwin there was a relationship of independent contractor, was granted on November 16, 1949, after oppostition by plaintiff. The verdict was in favor of defendants Baldwin and Hissong. Plaintiff moved for a new trial but dismissed his motion giving as ground that he had failed to file the required affidavits. He appealed both from the judgment and order of November 16, 1949, granting the nonsuit as to defendant E. J. Willig Truck Transportation Co. and from the judgment on the verdict in favor of the two remaining defendants.
The appeal from the judgment on the verdict is based solely on alleged misconduct of the attorney of defendant, Mr. Hoge, in stating in his closing argument to the jury certain parts of the deposition of plaintiff not read into evidence at the trial. For the consideration of the greater or lesser importance of said grievance some knowledge of the facts and evidence is required.
The accident happened on June 22, 1948, at about 6:30 A.M. on State Highway 50 between Livermore and Tracy about a mile east of the crest of the Livermore Pass. Highway 50 is there a four lane highway going east-west. Plaintiff and his friend Krenkel were going in an easterly direction (to Yosemite) in plaintiff's car, a 1931 Chrysler convertible with a 1938 Ford V-8 motor and a Buick steering wheel larger than the original one; it had no front fenders or running boards. Plaintiff was driving. The tractor and trailer, a large van trailer loaded with beer, were also going in an easterly direction. Plaintiff passed it when it was going very slowly up hill in the outside lane before or at the crest. Plaintiff whose speed was probably between 35 and 40 miles went back to the outside lane after passing it. After passing the crest he saw before him in the same outside lane a slow moving automobile on which he gained. The evidence is in so far without conflict that when the Shaff car and the truck had left Livermore Pass and were going downhill all three vehicles involved were in the outside lane, lowest down the slow car (later found to be the one of Mr. and Mrs. Zumbrun) behind that the Shaff car, gaining on the Zumbrun car, and behind that the tractor and trailer, now that it was going downhill gaining on the Shaff car. It is also undisputed that plaintiff wished to pass the slow car in front of him and that Hissong, the driver of the tractor, also wished to pass. The essential difference between the position of the parties relates to who first left the outside lane for the middle lane for the purpose of passing and to the giving of signals in that respect. Hissong testified that he saw the Shaff car drive downhill up to the Zumbrun car and remain behind it at a distance of 15 to 20 feet. He himself was then 200 to 300 feet behind the Shaff car. At that time he gradually went over to the inside lane giving two blasts on the horn when he started to change lanes. When he was completely in the inside lane he was still 50 to 100 feet behind the Shaff car, but when he had neared it to 3 to 15 feet, it shot out in front of him. Hissong pulled a chain to blow the horn and the impact followed immediately. Walter Shaff testified, corroborated by his friend Krenkel, that when he wished to pass the car in front of him and to turn into the inside lane he looked into his rear vision mirror and saw the truck about a hundred feet or so behind him in the same lane. Shaff then signalled with his arm extended straight and proceeded to pull out. He got completely in the left hand (inside) lane and had driven 100 to 150 feet in it when he heard the blast of the horn and while he gave a hard yank to the right the collision happened instantaneously.
The evidence further showed that the gouge marks of the accident were on the southerly one-third of the inside lane and a few on the outside lane, and that the right front wheel of the tractor was broken off but that otherwise the front of the tractor was scarcely damaged with even the bumper and fog lights intact. There was evidence of an expert that the fracture of the bearing of the front wheel of the tractor could only have happened the way it had if it was hit from behind by an object travelling faster than the tractor. Not only were Shaff and Krenkel hurt in the accident, Shaff seriously, but the Zumbruns who were in the slow car were killed. A trial concerning the death of the Zumbruns in which Shaff testified had preceded the present case. A few hours after the accident Krenkel made a statement to the police officer, Krause, in the first aid room of the hospital to which he had been brought in which he said that he thought they were in the inner lane, but that they may have been in the other lane; that a truck was trying to pass them, that he blew his horn just as he was upon them, 'I looked around and the truck was to our left right upon us.' At the trial Krenkel testified that he did not remember having spoken to Officer Krause.
In cross-examining Walter Shaff, Mr. Hoge repeatedly tried to impeach him by reading earlier statements made in his deposition and at the Zumbrun trial. In his final argument he reverted to the parts read. Appellant complains of three instances in which Mr. Hoge during the argument read to the jury portions of the deposition allegedly not read before.
One of the three instances complained of was abandoned at the oral argument as it was shown to have been read into evidence. In a second instance there was a slight deviation but wholly without importance. The essential part on which the argument was based had been duly read to plaintiff, but in reading it again to the jury Mr. Hoge started a few lines too early. The extra lines so read contained only completely uncontroversial matter. No misconduct was assigned and clearly there was neither misconduct nor prejudice.
The third point, the only one requiring consideration, is as follows: During the argument Mr. Hoge read from the deposition: Here Mr. Ricksen, attorney for plaintiff, remarked that this was not covered and that it read in the corrected deposition: 'After I pulled the wheel, I don't know.' Mr. Hoge read the uncorrected version for the second time and Mr. Ricksen repeated the correction, which Mr. Hoge said was made after consultation with Mr. Ricksen. Mr. Ricksen said that he would answer that in argument. Mr. Hoge contended that he was entitled to bring to the attention of the jury the testimony as given before correction and declared that he was going to read it again. Mr. Ricksen then said that if Mr. Hoge would pursue covering testimony that was not in...
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