Opinion
Hearing Granted June 27, 1962.
Opinion vacated 25 Cal.Rptr. 841, 375 P.2d 833.
Abe Mutchnik, Los Angeles, for appellants.
Parker, Stanbury, Reese & McGee and George H. Babcock, Long Beach, for respondent.
ASHBURN, Justice.
Personal injury action. Plaintiffs Katherine Margaret Bruce and Merle v. Bruce appeal from adverse judgment. Defendant Richard Eugene Ullery died during the pendency of the action and his wife Elenita E. Ullery, as administratrix of his estate, was substituted as defendant. Mr. Ullery had interposed an answer and a cross-complaint in which he sought damages for personal injuries and property damage received by him in the same accident upon which plaintiffs' complaint is based. The jury found for defendant upon the complaint and the cross-complaint, awarding damages to defendant in the sum of $3,244, which amount was reduced to $2,250 on motion for new trial. Appellants contend that the verdict for defendant has no substantial support in the evidence and is based wholly upon speculation and conjecture. The burden of the argument is that the only eye witness who testified was Allen T. Ebert, whose evidence was favorable to plaintiffs; that rejection of his testimony did not create evidence to the contrary and hence there is no substantial proof to support the jury's finding of negligence on the part of plaintiff Katherine Margaret Bruce, who was driving plaintiffs' Pontiac Station Wagon. Counsel concedes arguendo that there were conflicts in the Ebert testimony and that the jury may have been warranted in rejecting it in toto, but argues that this left no evidence whatever on the subject of negligence on the part of Mrs. Bruce. This does not follow, for the trier of the facts may reject all or any part of the testimony of a witness though uncontradicted and in that event may accept the remaining portion of his testimony. 'It must be considered in connection with other testimony and reasonable inferences therefrom, and the rule that the jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material. Bechtold v. Bishop & Co., Inc., 16 Cal.2d 285, 291-292, 105 P.2d 984; In re Estate of Pelton, 140 Cal.App.2d 512, 516, 295 P.2d 483.' (Nevarov v. Caldwell, 161 Cal.App.2d 762, 777, 327 P.2d 111, 121.) To the same effect see, People v. Rush, 180 Cal.App.2d 885, 886, 4 Cal.Rptr. 853; People v. Matlock, 51 Cal.2d 682, 695, 336 P.2d 505, 71 A.L.R.2d 605. If evidence is susceptible of conflicting inferences it is for the jury, not the court, to determine which one shall be drawn. As said in Industrial Indem. Co. v. Golden State Co., 117 Cal.App.2d 519, 538, 256 P.2d 677, 689 'it is settled law that if conflicting inferences may reasonably be drawn from the evidence, even if it is uncontradicted or all facts are admitted, which inference shall be drawn is a question for the trier of facts and its decision cannot be set aside by the appellate court. See also Hamilton v. Pacific Elec. Ry. Co., 12 Cal.2d 598, 603, 86 P.2d 829. Only where there is no conflict in the evidence and no conflicting inferences can be drawn therefrom does the finding of the trial court amount to a conclusion of law and is the finding not binding on a reviewing court.' See also, Sanders v. MacFarlane's Candies, 119 Cal.App.2d 497, 500, 259 P.2d 1010. Moreover, negligence may be proved circumstantially, like any other issue, and indirect evidence may outweigh direct evidence on the subject. (McNulty v. Copp, 91 Cal.App.2d 484, 490, 205 P.2d 438; Scott v. Burke, 39 Cal.2d 388, 398, 247 P.2d 313.)
Plaintiffs' Pontiac station wagon was traveling west on Rush Street and defendant's Buick sedan south on Hoyt Street. Mr. Ebert was riding with Mrs. Bruce, who was the driver of the station wagon; Mr. Bruce, who is Ebert's nephew, was not present. Ebert testified that the station wagon was going 25 miles an hour and the traffic light was green but changed to amber about the time they hit the intersection. He saw Ullery coming from the north at a speed of 40 to 55 miles an hour when the signal for westbound cars was still amber and that defendant was then some two to three car lengths north of the intersection. Ebert did not profess to know whether Mrs. Bruce looked to her right or not, but her car went straight ahead without any change in speed. Neither car slowed down before the collision. The Ullery car hit the other one just ahead of the dash on the right side, it skidded, straightened and went a half length ahead, stopping not more than seven or eight feet west of the west curb line of Hoyt Street, certainly not as much as 42 feet west of the intersection. He noticed no skid marks. The Ullery car hit Bruce's straight on and damaged it in the right front fender, right front wheel and right front of the body.
Though no witness testified directly in contradiction of the foregoing testimony, Highway Patrol Officer Arthur P. Andersen, arrived at the scene 10 to 15 minutes after the collision. He fixed the point of impact by an abrupt change in skid marks and by gouge marks in the roadway. Hoyt Street is 22 feet wide and Rush Street 30 feet. The point of impact was eight feet east of the west edge of Hoyt and 12 feet south of the north edge of Rush. The posted speed limit on Rush Street was 25 miles an hour and on Hoyt Street 35 miles an hour. The Ullery car left 21 feet of four-wheel locked skid marks, while the Bruce car left 12 feet of westbound skid marks and 41 feet of brush marks; it stopped 42 feet west of the west edge of Hoyt Street.
The jury well may have inferred from the foregoing evidence that Mrs. Bruce drove into the intersection without looking to the right and at a high rate of speed,--this because her car hit the southbound Ullery vehicle such a hard blow on its left side that it pushed everything on the front left side into the engine and bent the frame to the right; that after doing so the Bruce car skidded 12 feet forward and then went sideways for 41 more feet, leaving brush marks for that distance. Having died before the trial there was a presumption in favor of Mr. Ullery that he was driving carefully. (Scott v. Burke, supra, 39 Cal.2d 388, 394, 247 P.2d 313.) Assuming that the jury did so find, they were amply justified in holding that plaintiff, not defendant, was the negligent cause of the accident.
Appellants next argue that there was prejudicial error in the court sustaining an objection to the giving of testimony by plaintiff Katherine Margaret Bruce upon any facts occurring prior to the death of defendant Ullery, which occurred on March 20, 1959. Said objection was based on subdivision 3 of § 1880, Code of Civil Procedure.
Code Civ.Proc. § 1880: 'The following persons cannot be witnesses: * * * 3. [Actions against estates.] Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim, or demand against the estate of a deceased person, as to any matter or fact occurring before the death of such deceased person.'
Appellants rely upon Sedgwick v. Sedgwick, 52 Cal. 336, Webster v. Freeman, 27 Cal.App.2d 5, 80 P.2d 497 and Norgard v. Estate of Norgard, 54 Cal.App.2d 82, 128 P.2d 566.
The Sedgwick case merely holds that § 1880, subdivision 3, does not apply to an action brought by the executor on behalf of the estate. Webster holds that the plaintiff in an action against an executor brought upon a claim against the estate may testify in support of that claim where the executor has filed a counterclaim and produced evidence in support of it.
Norgard impliedly recognizes the last stated rule but shows that it is not applicable where no evidence has been produced in support of the counter-pleading. The complaint in that case alleged an agreement with decedent that if plaintiff would perform certain services for decedent to the date of his death a promissory note owed by plaintiff to him would be considered cancelled and paid in full. Decedent's administrator answered and filed a cross-complaint, but it was dismissed prior to trial and hence no evidence was introduced in support of it. The court held that in these circumstances plaintiff was barred from testifying, saying: 'The cross-complaint having been abandoned by respondent estate, and no evidence having been introduced 'In the case of George v. McManus, 27 Cal.App. 414, at page 418, 150 P. 73, at page 75, the court said: 'Respondent insists, however that the statute does not apply to a case where the action is brought by the personal representatives of a deceased person to recover upon facts which occurred prior to the death of the testator, and that, inasmuch as defendants filed a counterclaim asking for affirmative action, such fact rendered the testimony of plaintiff competent. In Sedgwick v. Sedgwick, 52 Cal. 336, it is held that, where an action is brought by an executrix upon a demand not against, but in favor of, the estate, the defendant, though a party to the transaction had with the deceased, is nevertheless a competent witness in his own behalf in defending the action. It is apparent, however, upon an examination of the record presented that the evidence of plaintiff was offered, received, and considered by the court in support of the allegations of his complaint. Since defendants had offered no evidence in support of their counterclaim when plaintiff was called to testify, it is clear, therefore, that such evidence was not offered in rebuttal of any testimony given by defendants' witnesses. The purpose of the rule is that, where the voice of one party to a transaction is closed by death, the other will not be permitted to testify as to the facts of the transaction in enforcing a money demand against the estate of such deceased person. In our opinion, the case falls within the provisions of section 1880 [of the Code of Civil Procedure], and it was prejudicial error to permit plaintiff to testify, as to the occurrences and facts upon which he based his claim and demand.' Our conclusion is that the trial court did not err in holding that appellant was not entitled to testify as to matters occurring before the death of the deceased.' (54 Cal.App.2d pp. 88-89, 128 P.2d at pages 568, 569.)
This case was disapproved in Bernkrant v. Fowler, 55 Cal.2d 588, 593, 12 Cal.Rptr. 266, 360 P.2d 906, with respect to the question of applicability of § 1880, subdivision 3, to the type of action there involved. The reasoning of Norgard upon the point now under consideration seems to us to be sound, not within the scope of the Supreme Court's disapproval, and it is applicable to the facts now before us.
During presentation of plaintiffs' case their attorney ran out of witnesses due to the fact that their doctor was then engaged in surgery. 'THE COURT: I understand that you are willing to proceed with the negligence feature. MR. BABCOCK [defendant's attorney]: Your Honor, I have only one witness outside of Mrs. Ullery. I am willing to call him at this time. He is very short, however. THE COURT: Very well.' The defense then produced the testimony of Richard Eugene Ullery, Jr., and Elenita E. Ullery, the administratrix; then plaintiffs called Dr. Jules Larner who testified and was followed by defendant's witness, Arthur P. Andersen. At the conclusion of the officer's testimony the following occurred: 'THE COURT: If I understand correctly, Mr. Seavey [plaintiffs' attorney], you only have this Doctor? MR. SEAVEY: Yes, your Honor. THE COURT: And. Mr. Babcock [defendant's attorney], do you have any further witnesses? MR. BABCOCK: Nothing other than a possibility of a record to be introduced. THE COURT: The Doctor who attended Mrs. Bruce has been in surgery this morning and can't get here. Of course, we can't require him ot be in two places at once. He will be here this afternoon, so we will adjourn now until 1:45.' Dr. Mintz testified in the afternoon on behalf of plaintiffs and their counsel then called Mrs. Bruce to the stand, whereupon the following took place: 'q Mrs. Bruce, are you one of the plaintiffs in this case? A Yes, I am. MR. BABCOCK: At this time I will object to any testimony from this witness relating to any event prior to the death of Mr. Ullery under The transcript plainly shows that no testimony of the administratrix was received in support of the cross-complaint which pertained to the circumstances of the accident. Ullery, Jr. testified about the condition of the Buick after the collision and Mrs. Ullery, the administratrix, testified concerning the condition of her husband after the accident, the bills incurred and paid for doctors and the like, and for repair of the car. Evidence going to the matter of damages, which means augmentation of the cross-complainant's possible recovery, falls within the purview of the statute. (See, Stuart v. Lord, 138 Cal. 672, 676-677, 72 P. 142; Warren v. Nair, 102 Cal.App.2d 298, 300, 277 P.2d 515.)
The general rule pertaining to counterclaims or cross-complaints is that the giving of testimony by the personal representative in support of same waives objection to the opposing party testifying thereon. 97 C.J.S. Witnesses § 241, page 721: 'Although there is some authority to the contrary, it is generally held that the incompetency of a hostile witness is removed where the protected party introduces evidence as to transactions or communications of the decedent, at least where such testimony is given by an interested witness.
'The disqualification of witness to testify as to transactions or communications with a decedent, matters occurring in decedent's lifetime, etc., is, as a general rule, removed when the adverse protected party introduces evidence as to such matters, and in such case the witness may testify as to matters concerning which evidence has been so introduced, or deny that the transaction or communication testified to ever occurred.' But the waiver of the disqualification is not necessarily complete; it is confined to the area embraced in the testimony given by the protected party.
97 C.J.S. Witnesses § 242, page 723: 'Where the protected party testifies as to transactions or communications of decedent concerning which parties or persons in interest adverse to him are incompetent, their disqualification is removed and they become competent as to any matter concerning which the protected party has testified.' Id., § 244, page 730: 'Although under statutes in some jurisdictions it is held that the adduction of testimony by the adversary of an interested witness enables such witness to testify generally, and without restriction, the fact that the protected party has brought out evidence as to some of the matters as to which the witness is incompetent is ordinarily held to remove the disqualification only with respect to such matters, and the witness remains incompetent as to other matters concerning which the protected party has not brought out evidence; but, where a part of a transaction has been gone into, the interested witness is competent to testify as to the remainder of that particular transaction.'
3 Jones on Evidence (5th ed.), § 785, pages 1461-1462: 'If the representative testifies or calls other witnesses interested in the estate ot testify to transactions or communications of the deceased or incompetent with the adverse party, he thereby waives his right to object to the party's testimony. * * * In such circumstances, the adverse party is competent to testify only to the transactions or communications concerning which testimony has been given; but he may, of course, go fully into all those transactions. * * * The adverse party may not testify to any transactions other than those concerning which the representative has introduced evidence, even though such testimony as to a separate and independent transaction or communication would tend to contradict the testimony which has been given as to the transaction in question.' To the same effect are: Qualls v. Monroe County Bank, 22. Ala. Brett v. Dean,
Johnson v. McKnight, Biehl v. Biehl's Adm'x, Volkwein v. Volkwein, Burk v. Peter, Carter v. Curlew Creamery Co., Padgett v. Gaddis, Boardman v. Brown, Hall v. Otis, Johnson v. Heald, Ferry v. Woody, In re Neckel's Estate, Walston v. Coppersmith, Kraft v. Security State Bank, Janes v. Felton,There seems to be no California case discussing this question of the extent of the waiver, although Webster v. Freeman, supra, 27 Cal.App.2d 5, at page 9, paragraph (4), 80 P.2d 497 may be construed to mean a complete waiver. Normally California follows the weight of authority in such circumstances. Westman v. Dye, 214 Cal. 28, 36, 4 P.2d 134, 137: '[I]t seems desirable that the courts of this state should in cases of this character, and for that matter in all classes of cases, where the same can be done without running counter to any principles of law established in this state, follow the beaten path trod by the courts in other jurisdictions, and, when there is a conflict in the decisions of these courts, to accept and follow those principles of law approved and sustained by the weight of authority in these jurisdictions if the same appear equitable and right.' We find this case to be one in which this rule of partial waiver should be applied.
The conduct of counsel for appellants when the court made its ruling (as shown by quotation from the record, supra) plainly indicates a desire to have plaintiff Mrs. Bruce testify to the facts of the accident, the question of liability, not the matter of damages. If he had such a narrow objectve as minimizing defendant's damages he should have made an appropriate offer of proof so that the trial judge would be apprised of the limited scope of the examination which he proposed to pursue with plaintiff. In the absence of sucn an offer he cannot be heard to complain of the ruling.
Appellants complain of the giving of this instruction: 'It has been established in this case that at the time of the accident in question, the vehicle then being used by Mrs. Bruce was owned by both Mr. and Mrs. Bruce and that it was being used with the permission of Mr. Bruce. It follows, therefore, under the law, that if one is liable, both are liable.'
Appellants' contention is: 'It would thus appear that the trial court erroneously assumed, from the mere fact that co-ownership of the vehicle was admitted by appellants, that this totally concluded the matter of permissive use; and that this critical issue could therefore be entirely removed from the consideration of the jury. Yet, the question of permissive use is ordinarily a factual one, to be determined by the jury; and consequently the instruction given by the trial court herein, where not one iota of evidence was offered by anyone on the issue of permission, was highly prejudicial to the rights of Merle Bruce and constituted reversible error.'
The trial judge in his 'Memorandum to Counsel and Order [conditionally] Granting a New Trial' said: 'The complaint alleges that the plaintiffs were the owners of the Pontiac, and so does the cross-complaint. The matter of the consent of Mr. Bruce for Mrs. Bruce to use the car was not an issue in the case, as it is not set forth in the pretrial order or joint pretrial statement. Also there was no evidence offered on the subject of lack of consent. Further than this the instruction complained The record shows that the trial judge was correct in his statement that there was no issue in the case as to the co-ownership of the Bruce automobile, the opposing pleaders having joined in alleging that the two Bruces were owners of the Pontiac and the specification of issues in the pretrial order having made no mention of the subject (see, as to the effect of such silence in the order, Dell'Orto v. Dell'Orto, 166 Cal.App.2d 825, 831, 334 P.2d 97; Campbell v. Magana, 184 Cal.App.2d 751, 757, 8 Cal.Prtr. 32). The fact being admitted, an inference of consent to the wife's driving arose. (Krum v. Malloy, 22 Cal.2d 132, 135, 137 P.2d 18.) 'An inference is evidence, and must prevail unless it is overcome by other evidence.' (People v. Adams, 137 Cal.App.2d 660, 668, 290 P.2d 944, 948.) There being no opposing evidence at bar the instruction given was not erroneous.
Judgment affirmed.
FOX, P.J., and HERNDON, J., concur.