Opinion
Hearing Granted Feb. 27, 1947.
Appeal from Superior Court, Los Angeles County; Jess E. Stephens, Judge.
Consolidated wrongful death actions by Pablo Fuentes and Carmen Fuentes, husband and wife, against Clarence L. Tucker and others, and by Andres L. Negrette and Mariana Negrette, husband and wife, against same defendants arising out of an automobile accident. From judgments for plaintiffs, the named defendant alone appeals.
Affirmed.
.Parker, Stanbury & Reese and White McGee, Jr., all of Los Angeles, for appellant.
V. P. Lucas, of Los Angeles, for respondents.
OPINION
YORK, Presiding Justice.
This is a consolidated appeal by defendant Tucker from judgments rendered against him in the above entitled actions. Both actions are for wrongful death arising out of an accident which occurred on November 22, 1944, when an automobile operated by appellant struck two pedestrians, Raymond Negrette and Richard Fuentes, the minor sons of the respective respondents. The jury’s verdict awarded $7500 to the parents of each child.
Before the jury was impaneled, appellant filed an amended answer by leave of the court in which he admitted ‘that he was and is liable for the death of the deceased * * * and the damages directly and proximately caused thereby.’ Thereafter, appellant moved to exclude all evidence relative to the circumstances surrounding the accident, particularly that appellant had been drinking prior thereto, on the ground that such evidence would be immaterial and irrelevant to the issues presented by the pleadings. Said motion was denied.
It is here contended that the admission of such evidence was prejudicially erroneous, for the reason that, having admitted liability, there remained for determination the question of damages alone, and the only purpose accomplished by admitting the evidence complained of ‘was to increase the damages by putting the jury in a punitive state of mind.’
The trial court’s ruling on the motion of exclusion was based upon Martin v. Pacific Gas & Electric Co., 203 Cal. 291, 264 P. 246, and Rowe v. Rennick, 112 Cal.App. 576, 297 P. 603, 604, which cases are cited by respondents in support of the judgments here in question.
Rowe v. Rennick was an action for damages for personal injuries suffered in an automobile collision alleged to be due to the negligence of defendant. ‘After the jury had been impaneled, and, before any opening statement had been made, counsel for the defendant made the following statement: ‘Mr. Raines: Your Honor, before counsel proceeds, I think it is now in order for the defendant, under the conditions here, to make a statement as to his position, that is, as to the position of the defendant Rennick, so that it will expedite the matter and clarify the issues to be presented to the jury in this case. The defendant, of course, is charged with negligence; we are admitting, what we call admitting, liability in this action; we are admitting responsibility for the accident itself, which, under the conditions, will limit the question to go to the jury as to the amount of damages to be awarded the plaintiff. I make this statement at this time so that this may guide counsel and ourselves in making the statement and the conduct of the case itself.’ Following this admission on the part of the defendant, counsel for the plaintiff made an opening statement detailing the facts and circumstances of the collision, and then introduced testimony to prove the facts and circumstances as outlined in the opening statement. To all of these matters the defendant interposed timely and appropriate objections, which the court overruled.’
The court, in the cited case, stated (112 Cal.App. at page 579, 297 P. at page 604): ‘It will be noted that the defendant did not admit the facts and circumstances resulting in the collision. The admission is only, in the language of counsel, ‘what we call admitting liability in this action; we are admitting responsibility for the accident itself.’ This, under the settled law of this state, does not preclude the plaintiff from introducing testimony to substantiate the allegations in the complaint.’
Said court then called attention to the case of Martin v. Pacific Gas & Elec. Co., 203 Cal. 291, 264 P. 246, supra, in which ‘The defendant attempted, by an admission, to narrow the issues to the simple question of the amount of damages to be awarded, and made there, just as we have here, a limited admission of responsibility. The Martin Case, however, presented a much broader question than that tendered upon this appeal. This will appear by a reference to the Martin Case as reported in [the opinion of the District Court of Appeal,] (Cal.App.) 255 P. 284, where the facts contained in the transcript are set forth at length. There, the court permitted the testimony to be admitted detailing the facts and circumstances of previous acts of negligence, extending over a considerable period of time. This court held the admission of such testimony to be erroneous. In the hearing had in the same case by the Supreme Court it appears that a majority of the court agreed with the holding of this court as to the error in the admission of such extraneous matters, but it also held that the admission of such testimony was not of such a prejudicial character as to warrant a reversal, as judgment only could, under the circumstances of the case, go in favor of the plaintiff. What is said by the Supreme Court in the Martin Case, supra, however, is directly in point in this case, where only the circumstances surrounding the immediate act of negligence was testified to by the witnesses. We quote from the opinion the following: ‘Indeed, it never has been the law that it was or could be error to prove even admitted allegations of the pleadings if the patience of the trial court would permit it. ‘It does not lie in the power of one party, however, to prevent the introduction of relevant evidence by admitting in general terms the fact which such evidence tends to prove, if the Presiding Justice in his discretion, deems it proper to receive it. Parties, as a general rule, are entitled to prove the essential facts, to present to the jury a picture of the facts relied on. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight. No exception lies to the admission of relevant evidence under such circumstances.’ 26 R.C.L., § 40, p. 1046; Dunning v. Maine Cent. R. Co., 91 Me. 87, 39 A. 352, 64 Am.St.Rep. 208. The fact that the evidence admitted might, as an identical feature thereof, be inflammatory or have a tendency to unduly arouse the jury, does not render such evidence inadmissible. In Mohn v. Tingley, 191 Cal. 470, 491, 217 P. 733, 742, it is said: ‘The chief objection to all the evidence of which complaint is made is that it served to stir up the prejudice of the jury and arouse sympathy in respondent’s favor. But the evidence being admissible, its effect upon the jury would furnish no reason for its rejection.’ Likewise no prejudicial error can be committed by reading the pleadings to the jury, even though the legal effect of them has been admitted. Knight v. Russ, 77 Cal. 410, 414, 19 P. 698. We therefore hold that the said attempt of counsel to limit the proof was abortive and the trial court committed no error in its rulings in respect thereto.’
‘To the same effect we may cite the following: Jones v. Allen, [8 Cir. ___,] __, 85 F. 523; [5] Wigmore on Evidence, (2d Ed.), vol. 5, p. 607, § 2591; People v. Fredericks, 106 Cal. 554, 39 P. 944; Lesley Light & Power Co. v. Commonwealth Power Co., 172 Mich. 78, 137 N.W. 663; Thomson v. Carruth, 218 Mass. 524, 106 N.E. 159.’
Appellant calls attention in his opening brief to the testimony which he urges was erroneously admitted and constituted an attempt by respondents to prejudice the jury and thereby increase the measure of damages, to-wit:
‘Evidence was introduced that the decedents were knocked or carried by the defendant’s car a distance of 80 or 90 feet, and that the defendant said, ‘this is certainly a terrible thing.’ * * * that the decedents were in a crosswalk and had crossed to the center of the street when the collision took place and that one of the boys was knocked through the air.’
Appellant particularly objects to the testatimony with respect to his intoxication which was given by police officer Skeen in answer to questions propounded by respondents’ counsel, to-wit:
‘Q. All right. Now, what did the defendant say to you and what did you say to him?
A. The first time I saw him I asked for the driver of the car— that was after the ambulance had left— and Mr. Tucker identified himself to me as being the driver. We, in turn, walked over to the side of the police car, and I asked him for his driver’s license; and then he started to find his driver’s license, and after about two minutes of looking, why, he couldn’t find it, so I turned and walked back to the center of the street where Officer Hamilton was, and then I walked down to the west curb line of Cabrillo, where I was looking for witnesses. Now, I had no further conversation other than asking for the driver’s license at that time. ‘Q. All right. Now, did you have any further conversation than that which you have already related there at the scene of the accident?
A. I don’t recall having any further conversation with Mr. Tucker at that time, no.
‘Q. All right. Now, will you tell me— describe to the jury— the physical appearance of the defendant at the time when you were speaking to him regarding his driver’s license?
A. Mr. Tucker had been drinking.
‘Q. Well, now, I expect that that is a conclusion, counsel. What made you— what did you see, hear, taste, or smell, that gave you that idea?
A. He had an alcoholic breath.
‘Q. All right.
A. And when I asked him for his driver’s license he started looking through his wallet and he fumbled and fumbled. He pulled one card out three times, a white card, thought that was his driver’s license. * * * (Objection to what he thought was sustained, and that portion of the answer was stricken.) The Witness: After approximately two minutes of trying to find his license I gave up and walked back out to the center of the street where Office Hamilton was.
‘Q. By Mr. Lucas: All right. Now, did you see the defendant walk?
A. I did.
‘Q. And what did you observe with respect to his walking?
A. It was kind of a swaying motion, unsteady on his feet.’
With respect to the testimony of Officer Hamilton, appellant states: ‘Since the principal questions asked him on direct examination concerned the intoxication of defendant, it is obvious that the sole purpose of calling him as a witness was to establish that fact. His entire testimony on direct examination was’ as follows:
‘By Mr. Lucas:
Q. What is your occupation, Mr. Hamilton?
A. Police officer, City of Los Angeles.
‘Q. And how long have you been such?
A. Two and a half years.
‘Q. And on November 22nd, 1944, to what division of the police department were you attached?
A. Accident investigation.
‘Q. And at what place?
A. San Pedro division.
‘Q. Now, on that day did you get a call to investigate an accident?
A. Yes, sir.
‘Q. And where was that accident?
A. At Ninth and Cabrillo.
‘Q. And at or about what time of the day was it?
A. It was approximately 7:00 p. m.
‘Q. Now, Officer Hamilton, when you arrived at the scene of the accident did you see an automobile that was involved in the accident?
A. Yes, sir.
‘Q. And did you see anyone that was the driver of that car?
A. Slightly after we arrived at the accident, yes, sir.
‘Q. And who was the driver of the car?
A. Mr. Tucker.
‘Q. And will you tell me, Officer Hamilton, approximately where the car— well, I withdraw that. Did you determine the car that was involved in the accident?
A. Yes, sir.
‘Q. And can you go to the blackboard there and tell us approximately the location of the car?
A. Well, this is the approximate location of the car as shown on the diagram at the present time.
‘Q. I see. All right. Now how soon after you got there did you talk to Mr. Tucker?
A. Oh, it was approximately twenty minutes after we arrived at the scene.
‘Q. And on that occasion where did you talk with him?— at which point around the scene of the accident?
A. It was over on the northwest corner by the police car, where we had parked our car at that time.
‘Q. And who was with you at that time?
A. Well, there was a large crowd around there; I couldn’t name anyone right offhand.
‘Q. I mean in your and Mr. Tucker’s immediate presence.
A. Officer Skeen was there for a while, and who else was there I couldn’t answer that. ‘Q. I see. Now, on that occasion did you smell the breath of the defendant?
A. I did.
‘Q. State whether or not it was alcoholic?
A. It was alcoholic.
‘Q. And will you describe his speech?
A. Well, it was rather confused, slightly slurred— not too much.
‘Q. Did you examine his eyes?
A. Yes, sir.
‘Q. What was the examination and what was the result?
A. Well, the examination consisted of a flashlight on the pupil of the eyes, and the eyes reacted slowly on light. They were really dilated, more or less.
‘Q. What was the appearance of the eyes?
A. Bloodshot.
‘Q. And did you observe the defendant’s gait in walking?
A. Yes, sir.
‘Q. What was that?
A. Unsteady.
‘Q. In your opinion at that time was he under the influence of intoxicating liquor?
A. He was.
‘Q. Now, at that time did you have any conversation with the defendant with respect to whether or not he had been drinking liquor?
A. Very slight, yes, sir.
‘Q. Well, state that conversation.
A. Well, he— while filling out our sobriety form he stated that he had had four or five glasses of wine at his home at approximately 5:30 that evening, five to five-thirty that evening, I believe.
‘Mr. Lucas: You may cross-examine.’
Raymond Negrette, at the time of his death, was 12 years, 7 months and 15 days old; he was in the fifth grade at school; had a paper route, as the result of which he had saved about $80; he was a member of the Boye Club of San Pedro, and acted as a school crossing guard and aided and directed other children at the school crossing; he was in good health, was studious and obedient; he had lived with his parents from the timne of his birth until his death, and was on only son, being survived by three sisters.
Richard Fuentes was 11 years and 11 months at the time of his death; he, with his younger brother and Raymond Negrette, was on his way to the Boys Club at the time of the accident. He was in the fifth grade at Mary Star of the Sea, a parochial school located about a block from the site of the accident. He was in good health, and did the usual chores and work around the home usually done by boys of his age. He had been instructed as to the proper care and caution to be used in crossing a street; and had resided with his parents all of his life.
Appellant urges that the verdicts of $7,500 each, were excessive; that ‘Neither of these boys was self-supporting, and neither contributed to the support of their parents. There was no evidence that they had special talents or aptitudes’, and that the significance of the erroneous admission of the irrelevant evidence is magnified, when considered in the light of the large verdicts here rendered.
A recovery of $12,000 was allowed for the death of an eighteen year old boy in House v. Pacific Greyhound Lines, 35 Cal.App.2d 336, 95 P.2d 465; an award of $10,000 was given for the death of a seventeen year old girl in Casselman v. Hartford, etc., 36 Cal.App.2d 700, 98 P.2d 539; and in O’Meara v. Haiden, 204 Cal. 354, 268 P. 334, 60 A.L.R. 1381, a jury’s verdict for $10,000 was sustained for the death of a seven and a half year old boy.
By comparison with the foregoing awards, it can hardly be said that the verdicts of the jury in the instant actions were excessive, or that the jury was unduly influenced by the so-called inflammatory evidence, to the introduction of which appellant so strenuously objected.
While it is elementary that an admitted fact need not be proved, attention has not been directed to any adjudication holding that the admission of evidence in proof of an admitted fact is of such a prejudicial character as to warrant a reversal of a judgment.
Because it is obvious that the jury herein was not influenced to any great extent by the evidence complained of, appellant was not prejudiced by its introduction, and therefore the principles of law enunciated in Martin v. Pacific Gas & Electric Co., and Rowe v. Rennick, supra, are applicable to the situation here presented.
Appellant urges that the mothers of the decedents were erroneously joined as plaintiffs, because under section 376 of the Code of Civil Procedure, the right to maintain an action for the wrongful death of a minor is given exclusively to the father, if he is living. In his fourth affirmative defense, set up in his first amended answers to the complaints herein, appellant alleged that the mothers were not proper parties plaintiff and did not have a cause of action individually.
In House v. Pacific Greyhound Lines, 35 Cal.App.2d 336, 343, 95 P.2d 465, 469, where the same point was raised, the court stated: ‘The presence of the wife as joint plaintiff would at most constitute a misjoinder and as all of the facts appeared upon the face of the complaint, objection should have been taken by special demurrer. No such demurrer was filed. In the original answer no objection was made to the presence of the wife as a party plaintiff. In the amended answer a special cause of action was set up alleging that the court had no jurisdiction of the subject-matter of the action in so far as it related to an alleged cause of action in favor of plaintiff, Samie G. House (the wife). Legal incapacity of the plaintiff to sue would not go to the jurisdiction of the court. Rosenbloom v. Southern P. Co., 59 Cal.App. 102, 210 P. 53; Crittenden v. Superior Court, 166 Cal. 340, 136 P. 287; Work v. Campbell, 164 Cal. 343, 128 P. 943, 43 L.R.A.,N.S., 581. So it would appear defendant had failed to raise the objection, if any, either by demurrer or answer and not having been so raised it must be deemed waived. Rosenbloom v. Southern P. Co., supra; sec. 434, Code Civ.Proc. But, assuming, however, that that issue was properly presented, we still believe that defendant is not entitled to a reversal. The purpose of section 376 of the Code of Civil Procedure was to designate the necessary party plaintiff in order that a defendant might be protected against multiplicity of actions and that a finality of the litigation might be assured. Here the father was a necessary party and as such he was made plaintiff. Section 378 of the Code of Civil Procedure provides that:
"All persons may be joined in one action as plaintiffs who have an interest in the subject of the action or in whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist. * * *.’
‘Section 376 of the Code of Civil Procedure would not in effect eliminate the joining a proper party with the necessary party to the action.’ (Emphasis added.)
An examination of the entire record discloses no miscarriage of justice in these cases.
For the reasons stated, the judgments appealed from are, and each of them is, affirmed.
DORAN and WHITE, JJ., concur.