Weiss v. Baba

• Decision Date: 08 July 1963
• Citation: 32 Cal.Rptr. 137,218 Cal.App.2d 45
• Court: California Court of Appeals Court of Appeals
• Parties: Phyllis WEISS and Phyllis Weiss, as Guardian ad Litem of Vivian Aura Weiss, 1 Plaintiffs and Appellants, v. Tadao BABA, Defendant and Respondent. Civ. 27050.

Page 137

32 Cal.Rptr. 137

218 Cal.App.2d 45

Phyllis WEISS and Phyllis Weiss, as Guardian ad Litem of Vivian Aura Weiss, ¹ Plaintiffs and Appellants, v. Tadao BABA, Defendant and Respondent.

Civ. 27050.

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

July 8, 1963.

Hearing Denied Sept. 4, 1963.

Irving H. Green, Los Angeles, for appellants.

Parker, Stanbury, McGee, Peckham & Garrett, by Roger W. Roberts, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal by plaintiffs [i.e. widow and minor child] from a judgment entered after the jury returned an unanimous verdict in favor of defendant in an action for wrongful death.

A re$sume$ of the facts is as follows:

The automobile accident with which we are concerned occurred on December 31, 1959, between 5:00 and 5:30 p.m. [i.e. it was dark and both automobiles had their headlights on] at the intersection of Rosewood Avenue and Crescent Heights Boulevard in the City of Los Angeles. Crescent Heights Boulevard is an arterial roadway where it intersects with Rosewood Avenue. Traffic in either direction on Rosewood Avenue is controlled by boulevard stop signs. The area is one of restricted visibility due to a combination of hedges, large palm trees and dwellings placed relatively close to the roadway ege.

Plaintiffs' decedent was traveling eastbound on Rosewood Avenue and defendant was traveling southbound on Crescent Heights Boulevard when the intersection accident occurred. There was no independent eye witness testimony relative to the pro-collision movements of either decedent or defendant. All of the evidence relating to the collision was obtained from a police officer who investigated at the scene after the collision and at the hospital shortly thereafter; from defendant's testimony at the trial, his signed statement to an investigator, deposition and answers to interrogatories; from neighbors familiar with the intersection and from expert testimony. There was conflict as to whether the streets were wet at the time of the collision. Defendant was familiar with the area and had frequently traveled through the intersection which was in a residential section. Any other pertinent facts will be set forth in the body of the opinion under appropriate headings.

Plaintiffs' first contention is that the trial court erred in permitting defendant to contradict his previous pre-trial statements [i.e. defendant's answers to interrogatories, deposition, statements to investigator and police officer. ²

Plaintiffs apparently take the position that such pre-trial statements are elevated to the status of judicial admissions as distinguished from evidentiary admissions. A judicial admission in not merely evidence of a fact. It is a conclusive concession of the truth of a matter which has the effect of removing it from the issues. (See Witkin, Cal.Evid., § 224, p. 251.)

The authorities cited by plaintiffs do not support their position. As an example, the case of International Carbonic Eng. Co. v. Natural Carb. Prod., (D.C.S.D.Cal.1944) 57 F.Supp. 248, 253, aff'd, 9 Cir., 158 F.2d 285, involved admissions made in response to requests for admissions. It is stated in Cembrook v. Superior Court, 56 Cal.2d 423, 429, 15 Cal.Rptr. 127, 131, 364 P.2d 303, 307 that ' Most of the other discovery procedures are aimed primarily at assisting counsel to prepare for trial. Requests for admissions, on the other hand, are primarily aimed at setting at rest a triable issue so that it will not have to be tried.'

A reading of the transcript discloses that plaintiffs' attorney skillfully exploited defendant's various contradictions. The jury was properly instructed relative to judging credibility, effect of false testimony, factors to consider in weighing testimony and the use of a deposition at the trial [i.e. a modification of a B.A.J.I. 31-A (Revised)]. ³

Plaintiffs' next contention is that the trial court erred in permitting defendant to reopen his case after all sides had rested and plaintiffs had begun their argument. ⁴

In support of this contention plaintiffs advance several arguments. First, that the 'impact of Morelli's entrance unduly influenced the jury, as it probably appeared to them that Morelli was an expert of the Court.' (Emphasis added.)

In the light of what appears in the Reporter's Transcript (see footnote 4) it is difficult to understand how plaintiffs can advance this argument. It is without merit.

Second, that Morelli's testimony contradicted defendant's various pre-trial statements. Morelli, as an expert, gave his opinion as to the speed of defendant's car and of decedent's car.

As was set forth in answer to plaintiffs' first contention, pre-trial statements, whether in the form of statements given to police, or investigators, depositions or answers to interrogatories do not assume the status of judicial admissions. They constitute evidentiary admissions. A party is not precluded from presenting evidence at the trial which is at variance with pre-trial statements. He does, however, by so doing run the risk of being impeached.

Third, that 'no showing of diligence was made by defense counsel to produce Morelli before the close of the evidence and the beginning of plaintiff's [sic] counsel's argument, there was no excuse for [sic] reason for permitting same.'

It is well established that to assign rulings or conduct as error, a timely objection must be made. (Newman v. Los Angeles Transit Lines, 120 Cal.App.2d 685, 695, 262 P.2d 95; Gist v. French, 136 Cal.App.2d 247, 288 P.2d 1003.)

In addition to the above three arguments, plaintiffs also assert that (a) Morelli's testimony was incredible and (b) that plaintiffs did not have sufficient time adequately to prepare their witnesses to rebut Morelli's testimony. The answer to the first assertion (a) above mentioned is that the question of credibility is for the trier of fact and not the appellate court and the answer to (b) is that if such was the case plaintiffs should have moved for a continuance and secured time within which adequately to prepare for a proper rebuttal.

Plaintiffs' next contention relates to a purported error with respect to an instruction, namely a failure to instruct on sounding a horn.

The rules relating to failure to give instructions are set forth in Mau v. Hollywood Commercial Buildings, Inc., 194 Cal.App.2d 459, 466, 15 Cal.Rptr. 181, 186, as follows:

' Each party is entitled to have his theory or theories of the case submitted to the jury in accordance with the pleadings and proof where there is substantial evidence in the record justifying the giving of the instructions. The existence or nonexistence of substantial evidence is a question of law. In ascertaining whether it was error for the trial court to refuse to give appellant's instructions, this court views the evidence in the light most favorable to appellant.

Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 255 P.2d 795; Dyer v. Knue, 186 Cal.App.2d 348, 8 Cal.Rptr. 753; Edgett v. Fairchild, 153 Cal.App.2d 734, 738, 314 P.2d 973.'

Plaintiffs proffered an instruction predicated upon section 27001, Vehicle Code, as follows:

'You are hereby instructed that at the time of the accident, Section 27001 of the California Vehicle Code read as follows:

'The driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn.'

There was evidence from which the jury could have determined that defendant owed a duty to sound his horn.

Officer Hamilton testified relative to statements made to him by defendant. According to Officer Hamilton's testimony defendant stated that he (defendant) was driving 35 to 40 miles per hour and as he approached the intersection of Rosewood he saw lights and knew that there was a car, but couldn't see any; that he was 20 to 40 feet north of the intersection when he first observed decedent's vehicle eastbound on Rosewood. There was evidence that vision would be obstructed at the intersection of Crescent Heights Boulevard and Rosewood by tall hedges, palm trees and parked cars and that defendant was familiar with the intersection. In defendant's answers to interrogatories he admitted that he had seen decedent's automobile before it entered the intersection.

What is stated in Rush v. Lagomarsino, 196 Cal. 308, 320, 237 P. 1066, 1070, is apposite:

'* * * [I]t was certainly a matter for the jury to determine whether or not, under all the circumstances it was necessary for the defendant to sound his horn as a warning of danger, and the failure to submit that question to the jury as requested was error which doubtless redounded to the prejudice of the plaintiff.'

We believe that the trial court erred. No useful purpose would be served in discussing plaintiffs' other...