Villines v. Tomerlin

• Decision Date: 03 August 1962
• Citation: 23 Cal.Rptr. 617,206 Cal.App.2d 448
• Parties: Maurice Jack VILLINES, Plaintiff and Respondent, v. David W. TOMERLIN, etc., et al., Defendants and Appellants. Civ. 96.
• Court: California Court of Appeals Court of Appeals

Page 617

23 Cal.Rptr. 617

206 Cal.App.2d 448

Maurice Jack VILLINES, Plaintiff and Respondent, v. David W. TOMERLIN, etc., et al., Defendants and Appellants.

Civ. 96.

District Court of Appeal, Fifth District, California.

Aug. 3, 1962.

Hearing Denied Sept. 26, 1962.

Edward A. Friend, San Francisco, for appellants.

Miles, Sears & Franson, Robert E. Sears, Fresno, for respondent.

BROWN, Justice.

Plaintiff brought this action for damages against the Motel Fresno, a co-partnership, and David W. Tomerlin in which he charged that Tomerlin assaulted him on the Motel Fresno premises, and for negligence. Issue was joined and as an affirmative defense, defendants asserted self-defense and defense of property. At the commencement of trial the two causes of action sounding in negligence were dismissed and plaintiff's claim for punitive damages was abandoned. The cause was tried by a jury on plaintiff's theory of assault and battery and defendants' theory of defense of self and property, and plaintiff was awarded $15,000 compensatory damages. Judgment was entered on the verdict and defendants appealed.

Defendants complain (a) of the refusal of certain tendered testimony, and (b) of the action of the court in refusing to submit to the jury an instruction requested by defendant.

The following facts appear from the record:

It is conceded that David W. Tomerlin was one of the partners operating the Motel Fresno and was acting on behalf of the partnership. For convenience, we shall hereinafter refer to Tomerlin as defendant.

Plaintiff had been an intermittent patron of the bar and cocktail lounge operated by the Motel Fresno for at least 18 months. About 5:30 p. m. on August 28, 1959, plaintiff ended his working day and went to the Motel, arriving at the bar at approximately 6:00 p. m. At the time, of, or shortly after his arrival, he saw and engaged in a conversation with defendant. Defendant then went home. Plaintiff consumed 10 to 12 drinks containing alcohol and at about 9:00 p. m. Mr. Schwabenland, the bartender, refused to serve him any further alcoholic beverages. Plaintiff went down two stairsteps to the cocktail lounge to wait for a cab, seated himself, and fell asleep. There is testimony that a cab was called, arrived, and left without plaintiff. About 9:30 p. m. a second cab arrived; the driver entered the cocktail lounge, and the bartender attempted to arouse plaintiff. Defendant, who had just returned, shook plaintiff by the shoulder and awakened him. Plaintiff moved his arms and shoulders and rose rapidly to his feet. Defendant told plaintiff his cab was waiting and he wanted plaintiff to leave the premises. Defendant and plaintiff ascended the stairs to the bar level where plaintiff apologized to defendant and, at plaintiff's insistence, shook hands with defendant three or four times. Defendant again informed plaintiff that he wanted plaintiff to leave the premises. Defendant then turned away, went to the bar, and seated himself. Plaintiff said to the cab driver, 'Let's get the hell out of here.' He then traversed a corridor paralleling the cocktail lounge at a rapid, swaying walk, slammed a swinging glass door with sufficient force to cause it to hit a stop located outside, then complete a quarter circle inner swing and hit a stop located inside the building, but without damage; then plaintiff continued over and along a 40-foot long breezeway leading to the Motel lobby situated in another building, from which breezeway a path led to the parking area and the waiting cab. Defendant, upon hearing the noise made when plaintiff slammed the door, admittedly became very angry, moved at a fast walk or run to the door and shouted to plaintiff, 'What the hell are you doing to my door?' Plaintiff, followed by the cab driver, had reached a point about half-way along the breezeway and was almost at the point where he could turn left to go to the waiting cab. He turned or half turned around, faced the glass door and or half turned in the direction in which he had been walking so that he was again facing the lobby at a slight angle. Defendant, who had continued to approach with his right arm extended, then pushed or shoved plaintiff by contacting his right shoulder. Plaintiff fell in what witnesses variously described as a slow motion crumpling, or a sliding, or a twirling motion, and came to rest on his back on the pavement of the breezeway almost at the outer wall of the lobby some 15 feet from the point of contact. Although defendant argues that the contact was a mere 'touching,' plaintiff landed with such force that three bones of his right ankle, the tibia, the fibula, and the medial malleolus, were fractured. There was testimony that after the fall, plaintiff's ankle was 'popped out of place' and further testimony that the ankle and leg formed a right angle. Defendant told plaintiff that he should not have shoved plaintiff.

These facts, as briefly outlined above, are not free from conflict. Conflicts and additional facts will be adverted to in our discussion of the points involved on this appeal.

It is not contended that the evidence is insufficient to support the judgment. Therefore, defendant's references, in briefs, to testimony of one of his witnesses that plaintiff kicked the glass door, which weighed in excess of 750 pounds, and thereafter limped, and the testimony of his expert medical witness tending to establish that plaintiff's fractures resulted from his kicking the door, rather than from an act of defendant, may be disregarded. The record is replete with testimony from which the jury could have concluded, as it obviously did, that plaintiff's injuries occurred as a result of defendant shoving or pushing him and the crucial issue is defense of self and property.

Defendant complains that the trial court erred in excluding defense testimony relating to events which occurred during a visit made by plaintiff to the defendants' establishment on the night before the evening with which we are here concerned. Plaintiff's objections to defense questions propounded to witnesses designed to elicit testimony concerning plaintiff's prior conduct were sustained and defendant's offer to show that plaintiff's conduct the previous evening was 'belligerant to the defendant and to other patrons of defendant and destructive of the good will of the defendant's business property,' was rejected. It is claimed that such evidence should have been admitted as relevant to defendant's apprehensive state of mind and as part of the res gestae.

Defendant has referred us to numerous cases decided in other jurisdictions which have provided interesting but unfruitful reading. It would serve no useful purpose to here discuss those cases for the reason that rules governing the nature of evidence deemed admissible and the conditions precedent to admissibility differ materially in the various states.

Concededly, when a defendant relies on the defense of self or property to justify an assault and battery, his state of mind at the time becomes material, and an important factor for consideration in determining justification is his belief in an impending attack, fear of bodily harm, or immediate damage to his property. To show such apprehension, or where evidence of conduct is equivocal, to show who was the aggressor, almost every jurisdiction permits, with some variations, the admissibility of evidence relating either (1) to the general reputation of the party charging assault for violence and turbulence, or (2) to prior specific acts of violence or threats of violence. But limitations, differing with the jurisdictions, have been wisely placed upon the character of evidence deemed admissible and the factual situations permitting admissibility. A common limitation is that, before evidence of general reputation or prior relevant acts of misconduct may be admitted, the party asserting self-defense must offer other evidence as a ground to bring self-defense fairly into issue. (See 2 Wigmore, Evidence (3d ed.) § 246, pp. 44 et seq.; 121 A.L.R., Ann., 380 et seq.)

Whatever the rule may be in other jurisdictions, the California rule by which we must be guided appears to be clear that, where one claiming defense of self or property has first established a prima facie case that the assault and battery was in self-defense, he may offer evidence of prior specific acts of violence or prior threats of violence to show that plaintiff is a turbulent and dangerous man and the defendant's knowledge thereof. In People v. Yokum, 145 Cal.App.2d 245, 302 P.2d 406, a homicide by shooting case, exclusion by the trial court of such evidence was held to be prejudicial error. At page 260, 302 P.2d at page 416, the rule is thus stated:

'Testimony that decedent had made prior threats against defendant is admissible if there is evidence tending to show any act of aggression committed by decedent at the time of the homicide indicating that he intended to attack defendant.'

In that case the appellate court determined that testimonial evidence that immediately prior to the shooting the decedent made a sudden lurch or dive toward the defendant, constituted a sufficient preliminary showing of aggression. In our case there is no evidence that plaintiff lurched, dived or advanced toward defendant.

People v. Soules, 41 Cal.App.2d 298, 106 P.2d 639, was another homicide case. Exclusion of evidence of prior specific acts of violence was held proper on the basis that no sufficient foundation was laid by a preliminary showing of good faith as a reasonable person in believing it was necessary to kill to protect against great bodily harm.

In People v. Gonzales, 33 Cal.App. 340, 164 P. 1131, a homicide, evidence of prior misconduct of, and prior threats made by, the deceased was stricken, the court stating at page 342, 164 P. at page 1132:

'When this evidence was tendered there was no testimony whatsoever tending to show any act of aggression committed by...