94 Cal. App. 2d 462 | Cal. Ct. App. | 1949
Recovery for alleged injuries by an automobile having been denied, appellant now demands a reversal of the judgment by reason of (1) the court’s denial of his motion for a continuance, (2) its exclusion of a writing by respondent Jackson purporting to admit his liability, and (3) rulings improperly excluding “material portions of evidence.”
About 3 p. m., April 13, 1947, Timothy Connor (18 months of age) accompanied his father to the service station of Van and Bill in Los Angeles County and while there the infant received serious bodily injuries. On May 29, 1947, acting through his guardian ad litem, Timothy filed the instant action against respondents alleging that he was struck by an automobile owned by respondent corporation of Oregon, authorized to transact business in California, driven negligently by respondent Jackson who was then acting under the direction of Freeman and Van Der Ham. The action was duly set for trial on June 21,1948.
On the trial date appellant’s counsel moved for a continuance. The motion was based upon the affidavit
The affidavit disclosed no merit in that an utter want of diligence was established. During the 13 months preceding the date of trial appellant’s counsel did not take out a commission to take Jackson’s deposition although he knew the
Appellant contends that he was prejudiced by the court’s excluding from evidence a letter written by Jackson. Those portions of the writing which appellant contends constitute an admission of liability are as follows: “Nothing I could say would express the grief I feel and the hope and prayers I have for your son’s recovery. I went to the . . ,
The sentiments expressed in the letter contain nothing that could reasonably be construed as an admission of liability. They indicate no more than a gentleman’s normal concern for the welfare of the child injured by contact with the author’s automobile and a desire to reassure the parents of his interest. The authorities cited by appellant in support of his contention (King v. Wilson, 116 Cal.App. 191 [2 P.2d 833]; Noble v. Bacon, 129 Cal.App. 177 [18 P.2d 699] ; Maberto v. Wolfe, 106 Cal.App. 202 [289 P. 218]; McPhee v. Lavin, 183 Cal. 264 [191 P. 23]) involved the question whether declarations indicating liability on the part of the declarant should be excluded because they referred to the fact that the defendant carried insurance. In each instance the statement was properly received because it contained words considered by the trial court as defendant's admission of liability which could not be separated from the statement that he carried liability insurance. A defendant’s statement that he carries insurance or that his insurance company “will do everything necessary immediately” is not an admission of liability. However, the construction of a writing is to be decided by the trial court- (Code Civ. Proc., § 2102) and its decision thereon will therefore not be cause for reversal in the absence of a showing of prejudice to the complaining party. Also, no judgment shall be reversed on the ground of improper rejection of evidence, unless the entire record discloses that the error complained of resulted in a miscarriage of justice. (Const., art. VI, § 4%.)
The witness McGowan was asked to relate a conversation had with Jackson after the accident. Objection was made by the corporation on the ground that it was hearsay and it was sustained as to the corporation only, whereupon the wit
Judgment affirmed.
McComb, J., and Wilson, J., concurred.
“. . . Joseph B. Boland, being first duly sworn, deposes and says: That he is the attorney for plaintiffs in the above-entitled action.
“That the testimony of the defendant Stanley William Jackson is material to the plaintiffs’ case; that the said Stanley William Jackson was the driver of the automobile which struck the plaintiff Timothy Michael Connor, as alleged in the complaint on file herein; that if the said Stanley William Jackson were present at the trial of the said action and examined under the provisions of Section 2055 of the Code of Civil Procedure of the State of California, he could testify to the manner in
“That your affiant is informed and believes that the said Stanley William Jackson is a resident of the city of Portland, State of Oregon; that your affiant caused an investigation to be made by long distance telephone to the city of Portland, Oregon, in an endeavor to locate the present whereabouts of the said Stanley William Jackson; that your affiant’s investigation revealed that said defendant has not been seen around his usual place of residence, to wit, the Elk’s Club in said city; that he is no longer in the employ of defendant Baybestos-Manhattan, Inc., and that investigation in and about the city of Los Angeles, California, reveals that he has not been seen about said city for approximately six months.”