Opinion
Rehearing Granted April 4, 1962.
For Opinion on Rehearing see 21 Cal.Rptr. 905.
Levy, Russell, DeRoy & Geffner and George DeRoy, Los Angeles, for appellant.
John R. Allport, Los Angeles, by John J. Mattis, La Canada, for respondent.
ASHBURN, Justice.
Plaintiff appeals from an adverse judgment in a personal injury action.
On March 26, 1958, at about 5:35 p. m., a Dodge station wagon operated by defendant Nellie Easter collided with a Chevrolet operated by one Arthur Combs. At the time of the accident, plaintiff Wiley was a paying passenger in the Easter vehicle. Also riding in it were Edith Jackson, Trudy Holmes and Joyce Tillus. All of these women (including Mrs. Easter) were engaged in domestic work in San Fernando Valley and defendant from time to time transported the other members of the group from their homes in Los Angeles City to their place of work in the valley and then back to their homes when work was over, collecting from each the sum of two dollars per trip. The accident happened while they were on their way home on the day in question. The collision took place at the intersection of Lankershim Boulevard and Oxnard Street, within the valley. The Easter vehicle was southbound on Lankershim Boulevard in the right hand lane of two southbound Plaintiff was injured and sued Mrs. Easter alone; the owner of the Combs vehicle and Combs, as operator, paid to plaintiff the sum of $5,000 in exchange for a Covenant Not to Sue, and Combs is not and was not a party to this lawsuit.
The sole issue upon appeal is whether or not it was prejudicial error for the trial court to allow defendant to introduce evidence of a statement made by her to one of the investigating officers at some time after the accident. Appellant objected to the police officer testifying as to this statement 'on the grounds that the foundation was insufficient to establish it as part of the res gestae and that it falls under the ordinary hearsay rule.'
The appeal is presented upon a partial reporter's transcript which contains only the testimony of defendant Easter, police officer James R. Welch, and Dr. Charles B. Farinella.
Officer Welch, one of the investigating officers, upon direct examination by defense counsel, stated that he talked to defendant after the accident 'about her explanation of how it occurred.' He made notes which were ultimately carried (accurately or otherwise) into a typed police report. The notes were not present at the trial and the witness did not assert that the report was correct nor was he asked whether it would refresh his memory; it seems plain, however, from his testimony that he had no independent recollection of the conversation. He was permitted to read from the police report his version of Mrs. Easter's statement as follows: 'In substance, she stated that she was driving southbound on Lankershim Boulevard in the second lane of traffic to the right of the double line. 'As I was approaching Oxnard Street, the signal was green. I was traveling about 35 miles an hour so I just continued on. I didn't see the other car until I was just about to the corner, and when I first saw it, the car was making a left turn from northbound to westbound. As soon as I saw the car coming, I tried to swerve to the right and also tried to stop, but he hit the side of my car and then my car went across Oxnard and hit the signal. I think there were some southbound cars in the lane to my left which were going to make a left turn. I don't know how fast the other car was going, but it was pretty fast.''
The law of this state concerning res gestae was considerably liberalized and to some extent clarified by the decision in Showalter v. Western Pacific R. R. Co., 16 Cal.2d 460, 106 P.2d 895. Mr. Justice Carter, speaking for the court, said in part: 'The rule which we deem to be correct was enunciated in the early case of People v. Vernon, 35 Cal. 49 [95 Am.Dec. 49]--namely, that declarations which are voluntary and spontaneous and made so near the time of the principal act as to preclude the idea of deliberate design, though not precisely concurrent in point of time therewith, are regarded as contemporaneous and admissible.' (P. 465, 106 P.2d p. 898.) 'The test so laid down is whether or not the statement is made under such circumstances of physical shock or nervous excitement as preclude the likelihood of reflection and fabrication.' (P. 466, 106 P.2d p. 899.) '[I]n our opinion the rule to be followed is that where a declaration is made under the immediate influence of the occurrence to which it relates and so near the time of that occurrence as to negative any probability of fabrication, said declaration is admissible. * * * The cases cited hereinabove to the contrary, holding the view that the admissibility of such statements is dependent on proximity of time to the principal event or on the continuation of the occurrence to which they relate, are as a consequence And at pages 468-469, 106 P.2d p. 900: 'The basis for this circumstantial probability of trustworthiness is 'that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief'. To render them admissible 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 Ev., 2d ed., sec. 1750.
'The practice in this state heretofore has been to allow the trial court no discretion in determining the admissibility of alleged res gestae statements; however, under the view taken herein there is necessarily some element of discretion in the trial court.
'As stated by the court in Roach v. Great Northern Ry. Co., 133 Minn. 257, 260 [158 N.W. 232, 234,]: 'In passing upon the admissibility of testimony claimed to constitute a part of the res gestae, the trial court determines whether unsworn statements are so accredited that they may go to the jury and be weighed and valued by it, and in determining this it considers whether the statements are spontaneous, whether there was an opportunity of fabrication or a likelihood of it, the lapse of time between the act and the declaration relating to it, the attendant excitement, the mental and physical condition of the declarant, and other circumstances important in determining whether the trustworthiness of the unsworn statements is such that they may safely go to the jury.''
Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 582, 160 P.2d 21, 24, adds to this quotation from Showalter the observation that '[s]tatements falling within that rule are admissible although self-serving.'
Officer Welch could not recall whether the conversation with defendant was at the scene of the accident or at the hospital. His report indicated that the accident occurred at 5:35 p. m., that the police received the call at 5:40 and arrived at the scene at 5:50. They left at 6:10. It was his recollection that the ambulance was there when he arrived. The officer was asked by the Court, 'Well, do your notes point out, indicate who pointed out certain things? Maybe that would refresh your recollection. THE WITNESS: Well, in the statement she didn't point out the impact, so probably she wasn't at the scene. Also, the type of injuries sustained, I would say that she was taken to the hospital fairly immediately after the ambulance got there. I would presume from all this that I did interview her at the hospital. * * * But this is a presumption.' He had no indenpendent recollection as to whether or not he went to the hospital or how long he stayed if he was there. He made notes of his interviews with both defendant and the plaintiff and that evening he and his partner, Officer Mellott, dictated the Accident Report, starting at 8:00 p. m. and finishing at 9:45; each prepared part of it and Mellott alone signed it. The report does not disclose the time or place of the interviews. Officer Welch could not recall whether the conversation with defendant was in the presence of plaintiff, but he did not believe plaintiff and defendant were together at the time; he talked to them individually.
In a further attempt to lay a foundation for the introduction of the statement, Officer Welch was asked what defendant's condition appeared to be when he talked to her. He said, 'She appeared to be injured and slightly in shock, I would say, due to the injuries as people do get as a result of traffic accidents.' 'THE Dr. Farinella, who was called to the hospital to care for plaintiff, also treated defendant Easter and testified that she then was in acute distress from a severely injured ankle. He gave Mrs. Wiley 'medication for pain,' and well may have done likewise for Mrs. Easter. Hence, if she was interviewed at the hospital we cannot say that she was still in the stress of nervous excitement. The burden of proving the admissibility of a declaration claimed to be res gestae rests upon the party who offers it.
It is said in Harris v. Hughes (Mo.App.), 266 S.W.2d 763, 767: 'Emerging as the main element essential to the admission of evidence under the rule is spontaneity. All else is material only in so as it tends to prove or disprove spontaneity. [Citations.] It is the burden of the party offering such evidence to establish the surrounding conditions which permit the application of the rule.' To the same effect, see, Allen v. Mack, 345 Pa. 407, 28 A.2d 783, 785; Aetna Life Ins. Co. v. Kern-Bauer (10th C.C.A.), 62 F.2d 477, 479. An annotation entitled 'Admissibility as res gestae of statements or exclamations relating to cause of, or responsibility for, motor vehicle accident,' in 53 A.L.R.2d 1245, says at page 1260: 'It appears well established that one who seeks to introduce evidence of a statement made in connection with a motor vehicle accident on the ground that, under the res gestae or spontaneous exclamation doctrine, the statement is outside the operation of the hearsay rule, has the burden of proving that the statement meets the requirements of res gestae evidence.'
Spontaneity is of the essence of declarations receivable as res gestae. The Showalter decision, supra, emphasizes the necessity of its being 'voluntary and spontaneous' (16 Cal.2d p. 465, 106 P.2d 895). The above quotation from Harris v. Hughes, is to the same effect. See also, Annotation in 53 A.L.R.2d at page 1262.
After the court had ruled the interview admissible and the officer had read from the police report his version of Mrs. Easter's statement, he further testified: 'That is the substance of our conversation. These aren't her direct words, however. Q You paraphrased them? A Yes. It is a question and answer portion. I don't read the questions, just more or less the answers.'
Undoubtedly there was in the present instance an occurrence startling enough to produce a spontaneous utterance, and the statements clearly related to the accident. But spontaneity has not been shown and Mrs. Easter's statements fail to meet the other requirements set forth in the Showalter case, supra. We do not know the time, place, or circumstances under which the statements were made. They could have been made within 20 minutes after the accident and at the scene; or, at the hospital, which would have had to be at least 30 minutes after the occurrence, and could have been as much as an hour or more afterwards. Plaintiff's attorney asserted that defendant has said that it was an hour after the collision and defendant's attorney seemed to agree. Under the evidence that appears to be the more reasonable inference.
Although the amount of time elapsing between the accident and the utterance is not alone the controlling factor, it is an element to be considered. (See, Dolberg v. Pacific Electric Ry. Co., 126 Cal.App.2d 487, 489, 272 P.2d 527.) Not only is there a failure to show the amount of time which elapsed between the accident A statement resulting from a question and answer interview of a motorist involved in an accident, especially when conducted by a police officer, suggests at once lack of spontaneity and on the contrary points to deliberation upon the facts engendered by an instinct of self-protection against claims of liability, civil or criminal. 'Admissibility of an exclamation regarding the cause of or responsibility for an automobile accident may be affected by a showing that the exclamation was made in response to an inquiry; that it was so made is, although not determinative of the question of admissibility, important as bearing on the pivotal question whether the exclamation was spontaneous or deliberative, since it tends to indicate a lack of spontaneity.' (53 A.L.R.2d 1278.) 'It may be stated that where it is the event speaking through the person and not the person telling about the event, that such declarations are part of the res gestae and admissible in evidence.' (People v. Perkins, 8 Cal.2d 502, 514, 66 P.2d 631, 637.)
It is one thing to receive in evidence an answer to the question, 'How in the world did it happen, Joe?' (as in Showalter, supra, 16 Cal.2d 460, 464, 106 P.2d 895, 897), or 'being asked where the other car came from' (as in Lane, supra, 26 Cal.2d at 579, 160 P.2d at 23), or 'What happened?' (as in People v. Costa, 40 Cal.2d 160, 168, 252 P.2d 1), and quite another thing to receive evidence of an interrogation which in itself is calculated to cause the person who answers the questions to pause and think. Aetna Life Ins. Co. v. Kern-Bauer, supra, 62 F.2d 477, 478: 'Under this exception to the hearsay rule, a narration of a past event is admissible only when it is made under such stress of physical shock or nervous excitement as to preclude the probability that it is the result of deliberation. The rationale of the rule is that where one is suffering from a shock so serious that the reflective faculty is stilled, there is such assurance that spontaneous exclamations are true that it is safe to dispense with the necessity of an oath and the right of cross-examination.' Itzkowitz v. P. H. Reubel & Co., 158 Ark. 454, 250 S.W. 535, 537: 'The statements do not come within the definition thus given, for, if the statements of the driver merely constituted a narrative of a past event, elicited by questions propounded by the officer in investigating the circumstances of the collision, this does not make them a part of the transaction itself but a mere history or narrative of the transaction, given afterwards. The investigation and inquiry of the officer necessarily broke the continuity between the man fact sought to be elicited and the narrative given of it, and we think that, under these circumstances, the evidence cannot be received as a part of the res gestae.'
Summarizing, it appears that defendant failed to show when or where her statements were made, whether the excitements of the accident had worn off, whether she was under the influence of sedatives at the time, what portions of her statement were volunteered and what were elicited by questions of the officer which were perhaps suggestive, or by questions which required deliberation in answering. Indeed, it does not affirmatively appear that the pertinent part of the report was made by Officer Welch, or that he knows it to have been correct at the time it was made; hence, under § 2047, Code of Civil
We are now confronted with the question of prejudice of miscarriage of justice. Respondent says there was no prejudice because Mrs. Easter had previously testified to the same facts. With this we cannot agree; there were substantial departures which preclude such a holding.
A review of Mrs. Easter's testimony points to the conclusion that in fact she was negligent and suggests a mistaken verdict. She testified that she and her passengers were talking about academy awards; her car was in the outside lane closest to the curb; she recalled no other southbound cars on Lankershim; the collision occurred within the intersection; she was driving at 30 to 35 miles an hour, no more and no less; the traffic light was green for her and did not change; she did not see the Combs car before colliding with it, or at most until it was about five feet away; she put on her brakes but that did not reduce the speed. 'Q. What, if anything, Mrs. Easter, did you do as soon as you caught this flash of the other car? A As soon as I caught the flash of the other car? Q Yes. A Well, if I remember, as soon as I caught the flash of the other car, we had collided and I cut my wheel. Q Would you say you cut your wheels--which way did you cut them, to the left or to the right? A To the right. Q Would you say you cut your wheels at just about the instant the cars came together? A Yes, I would.' Her vehicle continued until it hit a traffic light post and stopped there; it was so badly damaged it was not repaired. Combs' car was traveling as fast or faster than hers and the front of the Combs vehicle struck her front fender. She did not recall any traffic to her right or left and did not recall any eastbound or westbound cars crossing in front of her.
Singularly, she did not testify that she looked to the right or left or straight ahead for other cars as she approached the intersection. She was silent about that and was asked no question concerning it. There was no obstruction to the view; so her own testimony leaves her violating one of the cardinal duties of a motorist who approaches an intersection.
7 Cal.Jur.2d § 232, page 12: 'Both drivers, before entering an intersection, must look for approaching automobiles. If they do not look or if having looked do not see that which was plainly visible, they may be charged with negligence.' Freeman v. Churchill, 30 Cal.2d 453, 459, 183 P.2d 4, 7: 'The jury was instructed that both drivers were required to exercise the same care and 'Each was required to maintain a reasonable lookout for other traffic lawfully using the highways, as such lookout would have been maintained by persons of ordinary prudence in their position. Neither of them had the right to assume that the way was clear, if the facts were such that persons of ordinary prudence so situated would not so have assumed', and plaintiffs assert that thereby the jury were told that a person of ordinary prudence would have kept a lookout; that is, the jury was advised as a matter of law of the duty of a person of ordinary Huetter v. Andrews,
O'Brien v. Schellberg,On this partial record defendant stands pretty well convicted of proximate negligence upon her own testimony. But there is an insurmountable obstacle to the declaration of a miscarriage of justice. The clerk's minutes disclose that in addition to Mrs. Easter, Officer Welch and Dr. Farinella, the following persons testified: Mrs. Wiley, Mr. Combs (for plaintiff) and Officer Mellott (for defendant). Appellant's brief makes the following statements: 'Mr. Combs testified that two cars on defendant's left stopped to let him turn in front of them. * * * [T]hat the other vehicle stopped to let him pass and that those vehicles were vehicles proceeding in the same direction as defendant, and in the lanes to her left.' The transcript does not support this assertion, for Combs' testimony is not in the record. But these statements asserted to have been made by Combs suggest what may well have happened, namely, that two cars on Mrs. Easter's left saw and stopped for Combs; he, seeing this, assumed that she would do likewise and proceeded across, realizing too late that defendant was not yielding the right-of-way. It is even possible that one of the witnesses may have said that Mrs. Easter increased her speed at the last moment in order to beat Combs across the intersection. This partial transcript leaves us without a basis for determining whether there has been a miscarriage of justice.
Section 4 1/2, Article VI, of the Constitution, provides: 'No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' Section 475, Code of Civil Procedure: '* * * No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.' The constitutional command that an appellate court examine 'the entire cause, including the evidence,' before declaring a miscarriage of justice, cannot be ignored. This means the entire evidence. The respondent in each case has a right to demand that such an examination be made.
The argument presented to the voters in support of adoption of the amendment (which was confined to criminal cases originally) contains this: 'It would allow the appellate court to look at the facts of the particular case unhampered by any presumption or fiction, to see whether or not the accused was injustly convicted.'
Coleman v. Farwell, 206 Cal. 740, 276 P. 335, was an appeal taken upon a bill of exceptions which contained only part of the evidence and so stated. The court having found several rulings to be apparently erroneous said, at pages 741 and 742, 276 P. at page 336: 'In order to justify the reversal of the judgment on the ground of erroneous admission or rejection of evidence, the reviewing court must be of the opinion, after an examination of the entire cause, including the evidence, that the error complained of has resulted in a miscarriage of justice. Const. art. Foster v. Young,
In Charles H. Duell v. Metro-Goldwyn-Mayer Corp., 128 Cal.App. 376, at page 378, 17 P.2d 781, at page 782, another case presented on a bill of exceptions which contained only a portion of the testimony, the court said: 'It may be conceded that, if sufficient does appear to show the error complained of, the record may be accepted as complete. However, if it reasonably appears that there may have been other proceedings or testimony from which the judgment might have additional support, then and in that event all presumptions would be in favor of an affirmance. Without quotation therefrom we cite the case of Coleman v. Farwell, 206 Cal. 740, 276 P. 335. That case brings out clearly the idea that under the constitutional restriction a reviewing court must disregard error unless in addition thereto some prejudice results to a substantial right. The court then points out that, if the record does not contain all of the evidence the constitutional requirement cannot be filled; that is to say, that without the record in full it cannot be determined whether the claimed error resulted in a miscarriage of justice.'
In Buckley v. Chadwick, 45 Cal.2d 183, 288 P.2d 12, 289 P.2d 242, the appeal was presented upon a clerk's transcript and a settled statement. 'The statement comprises in part a narration of numerous facts and in part verbatim extracts 'from a partial reporter's transcript of oral proceedings.'' (Pp. 186-187, 288 P.2d p. 14.) The court found that appellants were erroneously deprived of their right to peremptory challenges of the jury. At page 203, 288 P.2d at page 24: 'However, here as in People v. Estorga (1928), 206 Cal. 81, 87, 273 P. 575 * * * the appellant 'has made no affirmative showing, and does not offer to show, that any of the * * * jurors who were actually sworn and served in the trial of the cause were biased, prejudiced, or in any way unfit to serve as trial jurors; nor does it appear that by reason of the manner in which the jury was selected the * * * [appellant] did not have a fair and impartial trial.' Under such circumstances, and although the method by which the jury was selected was erroneous and cannot be approved by this court, the error nevertheless does not appear on the record before us * * * to have resulted in a miscarriage of justice, and hence furnishes no ground for reversal of the judgment. (See Cal.Const., art. VI, § 4 1/2 [other citations].)' (Emphasis added.) See also, Etienne v. Kendall, 202 Cal. 251, 257, 259 P. 752; Meyer v. Lindsley, 42 Cal.App.2d 698, 700, 109 P.2d 714; Santina v. General Petroleum Corp., 41 Cal.App.2d 74, 76, 106 P.2d 60; Rosenthal v. Harris Motor Co., 118 Cal.App.2d 403, 409, 257 P.2d 1034; Pizer v. Brown, 133 Cal.App.2d 367, 373, 283 P.2d 1055; Alvak Enterprises v. Phillips, 167 Cal.App.2d 69, 75, 334 P.2d 148, 338 P.2d 582.
We do not mean to say that there are not cases which may show on the face of the abbreviated record both error and miscarriage of justice. This seems true where the record affirmatively shows denial of a fundamental right, e. g., denial of right to cross-examination (see, In re Winchester, 53 Cal.2d 528, 532, 2 Cal.Rptr. 296, 348 P.2d 904; concurring opinion in Priestly v. Superior Court, 50 Cal.2d 812, 822- McCarthy v. Mobile Cranes, Inc.,
People v. Elliot, People v. OneCertain cases have reversed where the record did not affirmatively show whether a miscarriage had resulted from an established error (e. g., Estate of Pierce, 32 Cal.2d 265, 275, 196 P.2d 1; Kovacik v. Reed, 49 Cal.2d 166, 170, 315 P.2d 314)--thus throwing upon respondent the burden of seeing that the trial court committed no reversible error. We do not believe that this was the intent of the constitutional amendment, nor do we think that the Supreme Court intended to overrule or disapprove the Coleman, Duell, Buckley and similar cases above cited. The fact is that in the Pierce and Kovacik cases the reversal was not predicated upon a miscarriage of justice caused by an error in the admission or rejection of evidence, or in a procedural or pleading matter within the meaning of § 4 1/2. In each instance it was held that, under Rule 52, the court must determine from the partial record whether there was evidence to support the judgment, and since the partial record contained no such evidence, the judgments were reversed.
As we see it, Rule 52 of the Rules on Appeal does not change the situation. It is said, in 17 So.Cal.L.Rev. 124-125: '* * * It would seem, then, that the constitution can be interpreted in accordance with its admitted objective, namely, to prohibit reversals for error where the record shows no miscarriage of justice; but the function of the reviewing court is performed when it examines the entire record before the court, to determine whether the error, in the light of the evidence brought up, is prejudicial. The court may and should rely on the parties to prepare a record which contains all that is relevant and material to the issue as to which error is urged.' The same view is expressed in 3 Witkin, California Procedure, § 101, page 2271. However, we cannot agree. Neither the history nor the wording of the constitutional amendment suggests any such constructional limitation, and that view is inconsistent with Coleman and other cases cited supra. The power of the Judicial Council to make rules is subordinate to existing constitutional and statutory law.
Rule 52, Rules on Appeal: 'If a record on appeal does not contain all of the papers, records and oral proceedings, but is certified by the judge or the clerk, or stipulated to by the parties, in accordance with these rules, it shall be presumed in the absence of proceedings for augmentation that it includes all matters material to a determination of the points on appeal. On an appeal on the judgment roll alone, or on a partial or complete clerk's transcript, the foregoing presumption shall not apply unless the error claimed by appellant appears on the face of the record.'
A rule of court cannot deprive a party of a statutory right (People v. McClellan, 31 Cal. 101, 103); it is 'subservient to statutory mandate' (McMahon v. Hamilton, 202 Cal. 319, 324, 260 P. 793); it must not conflict with the laws of this state (Brooks v. Union Trust, etc., Co., 146 Cal. 134, 138, 79 P. 843; Norland v. Gould, 200 Cal. 706, 707-708, 254 P. 560; Butterfield v. Butterfield, 1 Cal.2d 227, 228, 34 P.2d 145; Conae v. Conae, 109 Cal.App.2d 696, 697, 241 P.2d 266).
Many cases are not susceptible of adequate presentation on an abbreviated record. Counsel who would appeal upon a record such as a judgment roll, agreed statement, settled statement or partial reporter's transcript, should take cognizance of the fact that such a record must disclose within its own four corners the fact of prejudice as well as error. Sometimes We have no alternative in this case. The judgment is affirmed. Attempted appeal from order denying new trial dismissed.
FOX, P.J., and HERNDON, J., concur.