Southers v. Savage

• Decision Date: 11 April 1961
• Docket Number: No. 18948,18948
• Citation: Southers v. Savage, 12 Cal.Rptr. 470, 191 Cal.App.2d 100 (Cal. App. 1961)
• Court: California Court of Appeals
• Parties: John B. SOUTHERS, Plaintiff, Cross-Defendant and Appellant, v. Gordon D. SAVAGE, Hertz Corporation, Chess Bros., Ltd., Defendants, Cross-Defendants and Respondents, Adolpho Nunsiale and Attilio Nunisale, Defendants, Cross-Complainants and Appellants.

Page 470

12 Cal.Rptr. 470

191 Cal.App.2d 100

John B. SOUTHERS, Plaintiff, Cross-Defendant and Appellant, v. Gordon D. SAVAGE, Hertz Corporation, Chess Bros., Ltd., Defendants, Cross-Defendants and Respondents Adolpho Nunsiale and Attilio Nunisale, Defendants, Cross-Complainants and Appellants.

No. 18948.

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

April 11, 1961.

Edward J. Reidy, J. J. Doyle, San Francisco, for John B. Southers, appellant.

Delany, Fishgold & Freitas, Elmer P. Delany, San Francisco, for Attilio Nunsiale and Adolpho Nunsi.

Carroll, Davis, Burdick & McDonough, San Francisco, for Gordon D. Savage and The Hertz Corporation.

Barfield & Barfield, San Francisco, for Chess Bros., Ltd.

BRAY, Presiding Justice.

Southers and cross-complainants Attilio Nunsiale and Adolpho Nunsiale appeal from judgment in favor of defendants.

Questions Presented.

1. Admission of oral statement of David McGuire on theory of adoptive admission.

2. Alleged error of court:

(a) in misquoting testimony of Southers;

(b) in stating that defendants did not have to prove that Southers was physically able to reply, in order to consider his silence as an adoptive admission;

(c) in permitting traffic officer to opine as to point of impact;

(d) in instructions.

3. Alleged error of Hertz counsel.

Record.

Plaintiff sued defendants Savage, the Hertz Corporation, and the two Nunsiales for damages for personal injuries. Later plaintiff added defendant Chess Bros., Ltd., for whom Savage worked. The Nunsiales answered and cross-complained against Southers, Savage, Hertz and McGuire. (The latter was not then a party to the action.) ^{* *} A nonsuit was granted the two Nunsiales on plaintiff's complaint, and to Southers on the Nunsiales' cross-complaint. The jury found in favor of defendants Savage, Chess Bros. and Hertz on plaintiff's complaint, and also in favor of said defendants on the Nunsiales' cross-complaint.

Evidence.

Plaintiff Southers was riding as a guest passenger in a Dodge car driven by McGuire. That car was northbound on highway 101 near Brisbane. The Dodge collided with a Ford driven by Savage, also northbound. The Dodge then careened over to the wrong side of the highway, striking head on Attilio's southbound Pontiac in which Adolpho was riding. Southers claimed Savage's car was the cause of the accident; that it sideswiped McGuire's car causing the latter to lose control, cross the highway and strike Nunsiale's car head on. Savage claimed that the McGuire car was the cause of the accident, sideswiping his car and crossing into the path of Nunsiale's oncoming car. Thus, the important question in the case was which car sideswiped which.

No claim is made as to insufficiency of the evidence; only errors of law are urged.

1. Oral Statement of McGuire.

Shortly after the accident occurred, Officer Cherry arrived at the scene. The officer, over plaintiff's objection, was permitted to testify that McGuire in Southers' presence stated that he, McGuire, thought he had passed the Savage car sufficiently so that he could turn into that lane and that he sideswiped the Savage car. Southers did not comment. There was a conflict in the evidence as to whether Southers, who was sitting alongside McGuire in the car, was unconscious of otherwise not in a condition to reply when the statement was made.

Section 1870, Code of Civil Procedure, provides: '* * * evidence may be given upon a trial of the following facts: * * * 3. An act or declaration of another, in the presence and within the observation of a party, and his conduct in relation thereto * * *'. (See People v. Willmurth, 1947, 77 Cal.App.2d 605, 614, 176 P.2d 102 and People v. Simmons, 1946, 28 Cal.2d 699, 712, 172 P.2d 18, pointing out that this rule is an allowable exception to the hearsay rule.)

The evidence was admissible. Southers in his complaint alleged that the accident was caused by Savage sideswiping McGuire's car, and maintained that position throughout the trial, in fact testified to that effect. Thus evidence that immediately after the accident he sat supinely by when the driver of the car in which he was riding gave the officer a version of the accident completely contrary to that which Southers claims was the true version, and made no comment, was admissible. The jury were entitled to consider whether or not his silence did not then mean agreement.

Appellant's main attack upon the admissibility of this evidence is that his physical condition was such that the doctrine of adoptive silence could not apply. Of course the doctrine does not apply if the party is in such physical or mental condition that a reply could not reasonably be expected from him. See Gerulis v. Viens, 130 Me. 378, 156 A. 378, 76 A.L.R. 1387; Lichtenstein v. Cascio, 274 App.Div. 309, 83 N.Y.S.2d 195; People v. Simmons, supra, 28 Cal.2d 699, 172 P.2d 18. Southers testified that he became unconscious immediately upon the happening of the accident. Dr. Key, who examined Southers within 30-45 minutes after Southers arrived at the hospital, stated that Southers was suffering from concussion and great shock, his condition was very critical, and suddenly became worse and it looked almost as if he might expire. But on arrival he was conscious and gave 'a little history as to what had occurred just prior to the accident.' However, against this testimony was that of an independent witness Dutar, and Officer Cherry, whose testimony would support a finding that Southers was in a condition which would not excuse a failure to speak.

While it is the duty of the judge to determine, in the first instance, whether the evidence of the condition of the party is such that the doctrine of adoptive admission by silence would apply (People v. Willmurth, supra, 77 Cal.App.2d 605, 615, 176 P.2d 102), the ultimate determination of that question where the evidence, as here, is conflicting, is up to the jury. The court fully instructed the jury at the time of the admission of the evidence on the subject, pointing out that the determination of Southers' condition was for the jury, not for the court.

Although the trial court stated that it would not admit the evidence on that ground, the evidence was also admissible on the ground of spontaneous declaration or res gestae. See Code Civ.Proc. § 1850 and § 1870, subd. 7. If evidence is admissible on any ground, even though such ground is not specified, either intentionally or unintentionally by the trial court, this court will not find error in its admission. See Wilcox v. Berry, 1948, 32 Cal.2d 189, 192, 195 P.2d 414.

The conversation between Officer Cherry and McGuire occurred so closely after the accident as to be a part of the res gestae. The officer testified that he arrived at the scene six minutes after he received the radio call concerning the accident. He immediately went to the Dodge car in which McGuire was at the wheel, with Southers sitting beside him. Cherry leaned in the window and asked McGuire how the accident happened. Dutar testified that looking in his rear view mirror he saw the accident take place, pulled his car off the highway, and went back to render assistance. Reaching the McGuire car he saw both McGuire and the plaintiff in the front seat. They were both conscious and he talked with both of them. Officer Cherry arrived within 5-7 minutes of the occurrence of the accident. Defendant Savage testified that he parked approximately 600 feet beyond the point of collision, immediately got out of his car and walked back to the damaged cars. The officer had already arrived by the time Savage reached the cars. Attilio Nunsiale testified he was still in his car when the officer arrived.

These circumstances meet the test of the res gestae rule as set forth in Showalter v. Western Pacific R. R. Co., 1940, 16 Cal.2d 460, 468, 106 P.2d 895, 900: 'To render them admissible [the spontaneous statements] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it. Wigmore on Evidence, 2d ed., sec. 1750.'

'[T]hey were made before the excitement attending the accident had subsided.' Lloyd v. Boulevard Express, 1926, 79 Cal.App. 406, 411, 249 P. 837, 839.

Applicable here is the language in Lane v. Pacific Greyhound Lines, 1945, 26 Cal.2d 575, 583-584, 160 P.2d 21, 25: The statements 'were made near the time of the accident. They were made by a participant who was the driver of an automobile that had just collided with and badly damaged another vehicle. He had looked at decedent's vehicle and found decedent slumped over the steering wheel apparently dead. Certainly the statements were made under the stress of excitement and emotional upset which would accompany such an event, and when we also consider that they were against the declarant's interest, they are peculiarly imbued with a trustworthy character.' (Emphasis added.)

'To be admissible as res gestae, declarations need not have been made by the parties to the litigation. They are admissible even if made by third persons--particularly if made in the presence of the parties, though they need not necessarily be made in the presence of the parties.' (19 Cal.Jur.2d § 451, pp. 210-211.)

There was no error in the admission of the evidence.

2. (a) Misquotation By The Court.

In discussing the admission of McGuire's statement the court in the presence of the jury said concerning Southers: 'As I recall it, I think he said he regained consciousness in the ambulance. * * * He said he remembered being in the ambulance and then he passed out.' The court had stated that Southers' condition...