*1 2, Bank. Dec. A. No. 20121. In 1947.] [L. L. CLARENCE al., Respondents, v. et
PABLO FUENTES TUCKER, Appellant. In Bank. Dec. A. No. 20122. 1947.]
[L. al., Respondents, v. CLARENCE et ANDRES L. NEGRETTE TUCKER, Appellant. L.
(1) *3 Ap- Stanbury McGee, Jr., Parker, & Reese and White for pellant. Respondents.
V. Lucas for P. GIBSON, respective plain C. J. The minorsons of the by operated by killed an defendant. tiffs were automobile for trial, actions consolidated each The two were jury $7,500. plaintiffs case the verdict the awarded the appealed judgments claiming trial Defendant from the the present to evidence of permitting plaintiffs court erred by pleadings. the framed the facts outside issues day filed answer the of the trial defendant an amended On he which admitted “that was and is liable each case directly the the . . . and the death of deceased thereby.” Plaintiffs never- proximately caused were accident, prove the circumstances of the permitted theless was intoxicated and that including the facts that defendant impact. were thrown 80 feet force of children position that the introduction of evidence It is defendant’s the accident was error because as the circumstances of damages, amount of the relevant or material to the was not only jury. be determined issue to 4' Plaintiffs contend that defendant not, by could acknowledg-
ing legal responsibility for the deaths of children, deprive them right of the to show the surrounding circumstances accident, and that therefore it was not error to admit They of such facts. do not claim, however, that the evidence was material to in dispute facts under the pleadings they stood at the commencement of the trial. It is a long doctrine too established to open be dispute proof that the must be confined to the issues case and that the time of the court should not wasted, be should not confused, by be the introduction of evi dence which is not relevant or material to the matters to adjudicated. merely This is aspect one larger problem delay in the conduct litigation. Every has responsibility public to the justice see is ad efficiently ministered and expeditiously and that the facilities of the court are made possible available at the first moment to those whose eases awaiting trial. It would be an public unwarranted waste funds, injustice and a manifest many litigants seeking early date, trial to allow particular counsel in a occupy case to periods substantial time presentation useless of evidence on matters in controversy; and we know of no well-considered opinion which right. asserts
One of
pleadings
the functions of
is to limit
issues and
proofs.
narrow the
If
alleged
facts
in the com
plaint
are not controverted
answer, they
are not in
issue, and no
prove
evidence need be offered to
their exist
(Travelers
ence.
Byers,
Ins.
5
Proc., 1868;
98;
157, 106;
21 Cal.Jur.
Code Civ.
797,
Jur.
§
§
§
Counts,
725];
It an issue has been removed answer, an from case admission that is error solely to receive evidence which is to the excluded material This, course, matter. does not mean that an ad liability precludes showing mission of how happened an accident if such evidence is material damages. issue In an personal injuries, action for where liability only admitted and the issue to be tried is the damage, impact amount of the force of the and the sur rounding circumstances be relevant and material injuries. plaintiff’s (Johnson indicate the extent of v. Mc Bee, Cal.App.2d 524, 66 526]; 527 P.2d Martin Mi [152 guen,, Cal.App.2d 133, 816].) P.2d Such evidence is admissible because it is relevant and material to an issue remaining in the case. unqualified
The defendant here an statement liability his answer admitted for the children, deaths of the remaining question and the sole issue was the amount damages parents. wrong suffered In an action for ful death damages of a minor child the consist pecuniary parents being deprived loss to the of the serv ices, earnings, society, protection comfort and of the child. (Bond Railroads, 270, v. United 366, Cal. 687].) Ann.Cas. 1912C L.RA.N.S. The manner occurred, impact, in which the accident force of bearing defendant’s intoxication could have no on these damage. evidence, therefore, elements of was not ma jury, terial issue before the and its admission was error. they
In support right of their contention that had a prove accident, although evi- circumstances of the remaining damages, dence had no relation to the sole issue of plaintiffs strongly rely Martin v. Gas & Elec. Pacific binding parties if vertical on the foot. Such admission is as ‘ jury, found vant. irrele and evidence offered relation thereto is ’ having petitioner ... It been held ease ., proceeding, ment . missible at to the if . was admissible this ad all, only question damages.” respect With question held the court the evidence was admissible because it was too remote and because it was consent judgment. (Nantahala Light Sloan, Power Co. v. 227 N.C. & 361, 362-363].) S.E.2d *5 plaintiff was in- Cal. that case 246]. jured highly-charged power with contact line owned para- operated complaint alleged in one defendant. The graph negligently that defendant so maintained line that a ground, separate wire broke and fell to the and in a paragraph alleged negligently it that left was unguarded ground. opening wire on the At the of negligent allowing trial defendant admitted that was it ground the wire to remain on the and that was there- by injured. present Plaintiff permitted was nevertheless support negligence alleged evidence in of all acts of complaint, judgment and a his favor was affirmed on appeal. justices participated views of the who Martin (203 291) expressed separate
decision Cal. were four opinions with the that unfortunate result considerable con- holding fusion has respect arisen with of the case. court, opinion Three members of the in an written Justice Preston, position took the that defendant’s admission covered only specific charged one negligence of two acts of complaint and properly that therefore the trial court refused to limit proof. separate opinion, justices In a two ex- pressed that, alleged it view since was not that one of negligence proximate asserted acts of constituted a cause injury, it was error to allow the introduction of evi- They opinion, dence of that act. were of the however, that it was not reversible error because the verdict was not exces- justices sive. These propriety two did not discuss the presenting the circumstances of an accident after liability. justice A that, admission of sixth stated while might it permit proof have been error for the trial court to negligence admission, after the judgment defendant’s should be miscarriage jus- affirmed because there was no justice grounds tice. The seventh dissented on that de- every fendant’s admission amounted to a withdrawal of negligence, denial of it that was error to allow longer issue,
of matters which were no at and that the error prejudicial. appears that, although justices It thus six affirmed, were of the view that should be majority agree upon did of the court the reasons for the result. proper
The Martin case does not hold that it is
of an
introduce evidence of the circumstances
accident after
evi
liability
where
complete admission
full and
damages.
remaining issue of
material
sole
dence is not
mem
three
regard is that
that
can
said in
The most
error
it was not
position
took the
bers of the court
because
accident
circumstances of the
proof
allow
opening
at the
of defendant
made on behalf
oral admission
a full
constitute
did not
limited that
of the trial was so
however,
state
an erroneous
liability.
is,
There
admission
*6
which
Preston
opinion written
Justice
ment
in the
has been
and which
present
case
trial court relied on
(House
decisions
Appeal
District Court of
followed in three
P.2d
336, 342
Lines,
Cal.App
Greyhound
35
.2d
[95
v. Pacific
P.
576, 579-580
Rennick,
Cal.App.
112
465];
[297
Rowe v.
83
77,
Cal.App.2d
30
Co.,
603]; Behrendt v. Times-Mirror
has
it never
reads: “Indeed
949]). The statement
P.2d
[85
prove even
be error
it was or could
been the law
of the
patience
if the
allegations
pleadings
do
(203
291, 299.) We
it.”
Cal.
permit
trial court would
admissibility
evidence, so
agree.
The test of the
materiality
concerned,
not whether
relevancy
is
is
far
impatient but
patient
is
or
judge presiding
at the trial
material.
is relevant and
whether the evidence
discretion,
may, in his
judge
It
true that
the trial
is
to avoid
although relevant,
cumulative,
exclude
(Douil
the court.
wasting
time of
confusing the
or
Wineteer,
; Estate
Wood,
P.2d
lard v.
Me.
A.
Baumier v.
[39
208]
Anteau,
Eesley
939,
;
Light
These distinguished present cases must be case where an completely entire issue has been eliminated clear and unequivocal pleadings. For admission in example, in Dunning the case of v. Maine Cent. R. 352, 356, Me. Am.St.Rep. A. 208] (203 cited in the ease, p. 299), Martin Cal. at alleged sued to recover caused a fire loss *7 by to have been started one of defendant’s locomotives. Against objection evi plaintiff permitted was to introduce dence to engines sparks show that emitted defendant’s which spread fires and had seen in that fires been the immediate vicinity shortly passage of the the track after of trains. Defendant sought prevent presenting this by admitting of possibility an oral statement “the engines setting only more fires.” The admission was not scope limited in purpose its obvious than the evidence but legitimate was to “rob the weight.” of much its fair and of (91 87, 352, 356, Am.St.Rep. 97 64 Me. A. 208].) properly The court it did held that not lie within power by of proof the one to limit the this device.
In determining whether was the here prejudiced by the erroneous of immaterial evi admission dence may have the amount the tended to increase of verdict, not, identically we course, confronted with the same problem in a case presented as that where the claim damages solely excessive is based on the contention that prejudice. true, verdict It passion is the result is argued by defendant, say certainty as that we cannot with jury arriving to what extent at of the the amount by verdict have been admission of the influenced If, however, immaterial evidence. the amount awarded plaintiffs disproportionate suffered, is not to the loss the error has justice, miscarriage resulted in and (See 4 1/2.) should Cal.Const., VI, be affirmed. art. § The parents in each case were entitled to recover for the pecuniary they loss suffered reason of the death of their son, and in determining jury take into that loss could parents reasonably consideration the benefits were certain to have received earnings from the and services of their during child minority, support and financial they benefit which would have received from the child after it majority, reached pecuniary and also the which the loss parents suffered and will being suffer the future de- prived comfort, society of the protection of and the child. As an offset these factors, given be consideration must it what would have parents support cost the and educate child, manifestly had lived. he It is difficult to measure some of these cents, rough factors dollars esti- mate pecuniary parents loss which the have suffered most that can be expected in these cases. Haiden, O’Meara v. Cal. A.L.R. 1381], it was held that $10,000 was not an excessive amount general to allow as boy years for the death of a age. boys involved in this approxi accident were mately years they old Certainly when were killed. sum of $7,500, jury which was case, awarded each cannot be said to be an unreasonable amount to allow for the wrongful death of age, a child of that verdicts large are not so as to unduly indicate that influenced testimony admission immaterial question. It appear, therefore, does not the error resulted miscarriage justice.
Defendant also permit contends that was error to boys the mothers of the joined plaintiffs. right wrongful of action for death under Code of Procedure, Civil 376, 377, entirely sections statutory, and the action must *8 brought be persons right names of the whom given by (Salmon statute. Rathjens, v. 152 290, Cal. 294 P. ; Shanklin, Cal.App.2d. Evans v. 16 358 [92 P.2d 733] [60 554]; see 24 231.) persons specified Cal.L.Rev. The in
10 sue, only and
statute, therefore, parties are the entitled to regard authority joinder parties there for the other is no may they suffered less of the fact have sustained or damage Except in certain circumstances or loss. some bring present, here father alone is authorized to (Code Proc., of a child. Civ. action for death minor 376.) general provision This is in with the rule accord § California that the husband management
has and control community ordinarily bring action property and must rule, Code, 172, concerning (For general it. see Civ. §§ Niemann, 563, seq. 172a; v. 17 Cal.2d 567 et Sanderson [110 Co., 786, ; Moody v. 167 789 P.2d Southern Cal. 1025] Pacific Surety seq. Co., 118 388]; et P. Johnson v. National Cal. [141 Canal App. 227, ; v. Sutter Butte 229-230 P.2d Sternes 39] [5 Co., 99 mother is Cal.App. 465, 921].) 471-472 P. The [278 -necessary death of proper party an action expressly only minor in which the statute in those instances made in House v. suggestion her sue. The authorizes Greyhound Lines, 336, 344 Cal.App.2d 35 P.2d [95 Pacific 465], F., 124, Cal.App. v. Keena United Railroads S. Martyn, Cal.App.2d 35], and Abos P. [207 proper be a P.2d that the mother in which the father alone may join and with the father cases sue, disapproved. be statute to must authorized by the mis prejudiced he Defendant claims plaintiffs presence of the mothers “as joinder because already damages.” It has been augment the tend to would to the disproportionate the verdicts are not determined that appear suffered, moreover, it does not and, loss parties to increase tended joinder of mothers the loss suffered include awarded. The amounts the-mother, proceeds and the both the father (Sandberg v. McGilv community property. are ; 261, 272 P. ray-Raymond Cal.App. etc. 28] hearing v. United Railroads in Keena opinion see on denial 35].) mothers, 124, 132 F., Cal.App. S. testify trial and as wit present at the course, could action, they parties were not though nesses even properly disclosed children was relationship their testimony. their affirmed. judgments J., Traynor, J., Sehauer, Edmonds, J., J.,
Shenk, J., concurred. Spence,
11
CARTER,
J.
I concur
the conclusion reached in the
agree
I
majority opinion
reasoning upon
with the
but
cannot
conflict,
only
It is in
all
which it is based.
direct
with
Appeal
the decisions of this
and the District Courts of
past
years,
harmony
20
uni
during the
but is out of
with the
jurisdictions
leading
form
in other
well
rule announced
as the
texts
subject, including
Evidence,
on the
the Model Code of
adopted
promulgated by
the American Law Institute.
Notwithstanding
array
authority,
this
cita
and without the
any authority
tion of
supports
position,
whatever which
its
majority
disapproves
decision
overrules
the cases of
Co.,
Martin v.
&
Baumier
939]
[44
Brown,
;
239
N.E.
Brown
Hammond, 247 Mass.
v.
v.
44]
[142
;
Electric Co. v.
The Model Code Evidence following provi- the American Law contains the Institute prove sions to the admission of evidence to an ad- relative finding judge mitted fact: Rule 3. “If makes a formal dispute parties that there is no bona as to a fide between the matter, material all evidence relevant thereto shall be admis- sible, subject privilege.” Rule and to válid claim of aside, “A finding Rule 4. verdict or not be set nor shall reversed, shall the or decision based thereon be reason of the exclusion of evidence erroneous admission or *11 passes relevant to a matter if the effect the court of the counsel or error determines from concessions of part of bona fide contention as the record that there was no Rule finding.” to the matter inconsistent with the verdict or “ 303. (1) judge may exclude evidence his discretion outweighed by if probative he finds that its value consumption (a) risk that its admission undue will necessitate time, danger prejudice' (b) or create substantial of undue jury, (c) confusing misleading or of or the issues or of unfairly ground surprise party has not had reasonable who All (2) anticipate that such evidence would be offered. subject this stating Rules evidence to be admissible contrary expressly (Model Code Rule unless the stated.” pp. 76, 77, 78, 180.) of Evidence, foregoing texts support
The authorities of the cited Indiana, Iowa, Kansas, Georgia, California, include cases from Missouri, Penn- Massachusetts, Michigan, Maine, Maryland, sylvania All and Vermont. support these authorities rule in the Martin announced case and the other cases follow- ing disapproved by this rule which are majority opinion. majority opinion cites some the above-cited cases but following makes misleading erroneous and statement with respect to the rule announced therein: “The introduction of permissible evidence of admitted facts is in cases where the ambiguous in scope where, admission is form or limited during case, op- the trial of a deprive seeks to his ponent legitimate of the force and effect of material evidence probative conclusively the bald admission of a fact.” To inaccuracy last-quoted demonstrate the of the statement from analyze majority opinion I shall each of the cases which I excerpts opinions have cited and set forth ac- curately disclosing holding therein. Ruppel Clayes, Mo.App.
The case of S.W. majority opinion, personal injury 2d cited in was plaintiff alleged defendant, action which the that the while intoxicated, negligently with caused his automobile to collide plaintiff causing personal injury complained of. The allegations complaint, defendant’s answer denied the of the an prior but to the introduction of his counsel made liability. objection, plaintiff admission of Over defendant’s permitted showing to introduce evidence defendant’s appeal intoxication. Plaintiff recovered a and on evidence was defendant claimed that the admission such liability as to his after error because there was no issue contention, Missouri answering In defendant’s admission. ‘‘ complains further Appeals Court of stated: Defendant objection of permitting plaintiff, over the the court erred indicating that the defendant defendant, to introduce liquor of the accident. the time was under influence at argues defendant at start support of his contentions bearing of had no on the case, complained the evidence damages to be injuries, or the amount of plaintiff’s extent of punitive damages prayer for awarded, and, there was no since and such evi opening statement plaintiff’s petition, prejudice only to inflame were calculated dence . . . against defendant. that, if had made opinion even
“We are of liability’ instead of the unqualified general ‘admission *12 would, make, it neverthe- did decidedly qualified one which he such plaintiff to make state- privilege of less, have been the way, in his such introduce, own and to ment to know issue to. We to the referred relevant evidence was plaintiff could have been under which rule of law of no as were qualified admissions privilege such deprived of this herein. . . . made defendant say mind, proper to principle in we think it is
“Having this under the influence that, if was in case at bar defendant accident, it his liquor intoxicating at the time respect in can- misfortune, misfortune this but defendant’s his present jury, deprive plaintiff right to to show all the way, competent and relevant evidence own attending accident. circumstances " case, no and we have not been Counsel for defendant cite any, party plain been held that a able to find which has accept party of a defendant tiff is bound to the admissions respect precluded in the and is (cid:127)with to issue case prove his presenting his evidence to ease admission way. his own 330, general p. rule is stated in as follows: 'A
“The C.J. party required accept judicial is not admission of adversary, proving insist on fact. . . .’ but opinion plaintiff duty “We are was under no accept liability, qualified an admission defendant’s offer nothing tending unqualified, we see record any part plaintiff, counsel, in- show on the or his effort jurors against presenting the minds defendant flame this the case. feature of “We therefore hold that the court committed no error overruling objection defendant’s to the statement made to jury by plaintiff’s counsel, nor did the court commit permitting plaintiff error in to introduce the evidence referred [Emphasis (Pp. 833, S.W.2d].) to.” added.] Ray, Ga.App. the case of S.E.2d Carter that is relevant cannot be the court said: “Evidence jury by point kept from the a waiver on that or admission of testimony If fact, if the desires the out. ... there legal procedure plaintiff were two methods of preferred case, plaintiff the one the could make out the follow, other, preferred and the one that allowing was no error should, there follow;; *13 legal procedure plaintiff to elect which method of he would S.E.2d].) adopt.” (P. 369 [28 Young,
In the case of v. Ore. 227 P. State [96 Am.St.Rep. 689, 688], 18 L.R.A.N.S. convicted defendant was dangerous weapon. appealed with a and of assault He testimony by physicians as error the admission of two claimed gunshot number and character of wounds on as to the body victim, theory having on the that of the defendant pleaded justification, the assault and extent of injury and the manner in done which was done became In incompetent and immaterial. answer to this contention guilty Supreme Oregon plea held that Court ‘‘ allegations in of the the indictment. The burden is a denial beyond charge material element of a proving each right doubt was state and the to offer reasonable relevant and material to the issue can- have received evidence away admitting offering ad- taken defendant or not be charge sought part proven of thé to be is true. mit that which in themselves of facts are relevant Evidence admits accused are not inadmissible because he guilt of the that such facts are true.” Here the evi- offers to admit was com- was material and relevant so no error dence offered mitted. People Fredericks, 106
In the case of
Cal.
[39
appeal
of murder and on
944], the defendant was convicted
pursuit
the admission of
as to
as error
evidence
contended
after facts
connection therewith
capture of defendant
prosecution
that
him. The court held
were admitted
right
prove
pertaining to
case has the
in a criminal
facts
that
advisable rather than
it deems
course
the crime when
defendant as to such facts.
admission of the
take the
329],
A.
Will,
In United the case con- appealed App.D.C. policeman was at- while a murder which occurred viction of robbery. charge On suspected him tempting arrest on a that at had admitted he appeal, defendant claimed since suspected of he was shooting of the officer the time of the court to robbery, it was for the having error committed objection, of the details allow, over defendant’s conviction, judgment of robbery. affirming of the held that such Appeals the District of Columbia Court of require the exclusion of insufficient to admission was the arrest was robbery murder, for which previous evidence, as did the attempted, the offer did not disclose since *14 The court has resisting the arrest. defendant’s motive for if questions motive and the evidence latitude on considerable question issue, there is no legitimate bearing on the in has a admitting in it. error Ball, N.W. v. 193 Iowa
In the case of Henderson [186 damages brought an action result 668], plaintiff misleading advertisements and corres- and of fraudulent by defendant. Defendant’s answer pondence promulgated are shown to have been alleged that whatever statements knowingly At the trial de- by him, such were made. made had the effect of that this admission fendant contended proof rendering immaterial and inadmissible intent. The trial court refused defendant’s fraudulent defendent’s fraudulent intent and plaintiff to allow to show reversing judgment In directed a verdict for defendant. held that such evidence was ad- Supreme Court of Iowa “A that missible, stating: hypothetical admission of nature wrongful proving preclude will not the other ’’ by testimony. competent manner other intent the usual & Electric In the case of Stevens v. Citizens Gas 1090], N.W. a fireman the course of his Iowa allegedly negligently duty buggy pile of dirt ran his into by gas company as the result of certain left there per- and pleaded answer consent excavations. Defendant’s ad- city excavations. Plaintiff mission of the to make the city lay gas of the permission mitted defendant had per- offer of evidence of a objected main and to defendant’s city. objection was sus- giving permission by mit to be error to have sustained tained, appeal and on it was held The court objection prejudicial. not stated sub- but plaintiff that it was not for the to control stance the intro- mating duction defendant of its evidence an admission scope nor could and effectiveness of the evidence offered be limited or controlled such a manner. Antiau,
In
Baumier v.
the case of
In
Terre Haute
the case of
Elec. Co.
wrongful death
N.E.
sued for the
operating
of her husband who was a motorman killed while
due
defective brakes. At
one of defendant’s streetcars
physician
attended the deceased was
trial
who
allowed
testify
objection
over defendant’s
relative to the character
injuries
resulting
Pending
of his
death.
the examination
admit that the
physician,
defendant offered to
death
injuries
accident,
was caused
received
judgment,
it contended that the ad-
appeal from an adverse
holding
it was
mission of such evidence was error.
*15
error,
Supreme
Indiana stated that:
Court of
“One
adversary’s
making proof.”
limit
of
not thus
his
method
Philadelphia Rapid
Transit
the ease of Schroth
injuries
279], plaintiff
claimed
as the
280 Pa.
A.
negligent operation
result of
of one of defendant’s street-
riding
passenger.
a
Defendant
cars while she was
thereon as
by plain-
objected
offered
negligence
and
to evidence
immediately
the track
tiff
the car left
to the effect that
before
a
against
passenger
a curve and a
was thrown
struck
Pennsylvania
that the
held
Supreme
window. The
Court of
gestae
the res
properly
part
admitted as a
of
evidence was
ear
tending to
that
itself,
of the accident
and as
show
at
it was
speed
which
left the track because of
excessive
qf
sopie
thus
of
running,
furnishing
evidence
the cause
negligence.
tending
defendant’s
to show
the accident
‘‘
attempt
made no
The fact that defendant
The court stated:
necessarily
proof
negligence did not
exclude
disprove
to
of it.”
Son,
v. P. W. Moore &
In the case of Webster
brought
to recover the contract
A.
an action was
During the trial one Sim-
price for a carload of tomatoes.
through
mons,
goods
a
broker
whom the sale
canned
was the
made,
defendant was
was asked what
to
September 8, 1906,
on
for
value of No. 3 standard tomatoes
showing
price
the full
purpose
of
that the contract
price.
objected,
Plaintiff
but
that the con-
market
conceded
day
price
price
full
that
and the court
tract
was the
market
question
objection.
in the trial the
sustained the
Later
same
deposition.
a
and the answer
75 cents was
was read from
objected
ex-
also read. Plaintiff
and defendant stated he
by
agreed
give
pected to show
the answer that he had
price equal
price.
a
the market
The court sustained
ground
objection
proposed
on the
that
the matter thus
already
ruling
proved
to be
had
been conceded when the
question
appeal,
had been made.
ease was
the first
On
grounds
say
but
court went on
that
reversed on other
ought
“upon principle it would seem that
there
not to
compelling
party, against
laid down a hard and
rule
a
fast
adversary’s
will,
accept
his
concession
a bare
his
fact
sought
proved
to be
in lieu
the evidence which
fact
are,
doubt,
There
no-
cases in
proposed
to be established.
rule,
injustice
a
no actual
would be worked
which
strength
proponent’s
there are others which the
but
greatly
application.
weakened
its
case would be
price
excluded answer showed
contract
was 2%
price
day,
market
of that
and thus illustrates
cents above the
naked
difference in effect
some cases between a
the obvious
production
of a fact and the
concession
have not
proposed
fact is
to be established. We
which the
injury
specific
to us
worked to
pointed
had
out
ruling complained
case, by
of;
this
reversible;
injury,
be held
the error cannot
the absence of
laying
down
give our sanction
but we cannot
right
pro-
deprive
would
general rule which
way,
time and
jury,
his own
duce to
legally admissible
relies,
which is
he
[Emphasis
purpose.”
added.]
*16
Dunning
the case of
Maine Central R.
“It does not lie in power of one prevent the introduction of relevant admitting general terms the fact which such evidence prove, tends to if the presiding justice, discretion, in his deems it proper to receive Parties, general it. rule, as a prove entitled to the essen- facts,—to present tial picture of the events relied upon. To picture substitute for such a a naked admission might have the effect to rob the evidence of much of its fair legitimate weight. exception No lies to the admission of relevant evidence under (P. such circumstances.” A.].) In the case of John Hancock Mut. Moore, Ins. v.Co. Life 41, beneficiary Mich. policy under a brought insurance action to recover policy. on the Defendant insurance com- pany proofs death that had been submitted the company requirements under policy. At the proofs trial offered such evidence and defendant objected ground the same were irrelevant because appeal, Supreme of the admission. Michigan On Court reception held there was no error in the of the evidence. That proofs the admission fur- had been did improper produce nished not render the docu- *17 mentary prevent any subsequent evidence thereof and thus meaning excuse as to the and extent of the admission. The “It difficult party court said: would be to see how a can be by proof damnified which accords with his admissions.” Mfg. Vroman, In the of Kimball & Austin case Co. v. Am.Rep. 558], plaintiff brought Mich. an action for warranty against corporation. breach of defendant Defend- corporation ant’s counsel admitted that the defendant was a objected production incorporation. articles of of its appeal, by Supreme Michigan On was held the Court incorporation properly received, “it the articles of were by any party his bald admissions would be absurd to hold legal [Emphasis on trial could out evidence.” shut added.] Clayton Brown, 490, plaintiff In the case of Ga. brought against for an action the defendant conversion of negro slave. Defendant admitted the conversion. Over de- objection plaintiff put in fendant’s was allowed to evidence as appeal, Supreme Georgia to the conversion. On Court of properly held that admitted. That such evidence was testimony issue, showing was relevant to the a conversion of by negro simply defendant and could not be excluded opposite party willing a conversion, because the was to admit accept and the was not bound to defendant’s admis- sion. Groton, In ease of Priest v. Inhabitants 103 Mass.
530, plaintiff injured highway was in a defect keep repair. town was bound At trial defendant only railing by defect contended was the absence of a way the side of the at the time of the accident and the defend- deny railing ant did not was at that but there no time only that the of it was a defect and conceded that absence substantially it had the same condition for five been years past and that its condition was well known to all. On Supreme appeal, plain- of Massachusetts held that Court concession, might prove accept tiff was not bound to this both that the defect existed more than hours and that the had notice of it. town Bank,
In 128 Mass. an action was Dorr v. Tremont Nat. brought compel corporation to issue certificates defendant objected plaintiff. Plaintiff introduction of stock to correspondence offered in evidence certain thereby ground sought facts to be that the established ap- were conceded and the excluded evidence. On peal by defendant, response to its contention that the correspondence admissible, Supreme Court of Mas- sachusetts said: “Whether further evidence shall be received point expressly the adverse wholly judge presiding within the discretion of the at the ’’ trial.
While
analyzed
only
cases above
constitute
a few of
support
the decided cases which
the rule
announced
(overruled
Martin
majority
ease
decision)
there are
two other cases
mentioning. They
which deserve
are Kurn v.
Counts,
In the Broughton, supra, plaintiff case of Hanskett v. brought personal injuries arising an action for out of an auto- negligence mobile collision. Defendant his answer denied pleaded contributory negligence part plaintiff. and any evidence, Before the defendant’s counsel introduction negligence and withdrew the denial of admitted that admission, Notwithstanding this negligent. was defendant that de- opening statement asserted plaintiff’s counsel intoxicating the influence of to some extent under fendant was during presenta- liquor time of the accident and at the case, who testified to plaintiff’s witnesses were called tion of intoxication. This evidence was relative to defendant’s facts objection Plaintiff recovered of defendant. admitted over Supreme Court of which was reversed guilty ground plaintiff’s counsel was Minnesota on the presentation and in of misconduct his statement to the and relating to defendant’s intoxication on the ground the verdict was excessive. The court stated: further ‘‘ proof man- The introduction of that at the time and prejudicial ner it was error. There is such was introduced against general righteously angry public attitude of the prejudice presumed. drunken automobilists that must be consequence requires the error reversal. “Where a reversal is necessitated such conduct on the part prevailing party, of counsel for the are not much we disposed to search the record for circumstances calculated to so, however, cure the error. have done find We none. prove contributory attempt negligence was not of such lay proof a nature as to a foundation for of defendant’s evidence, best, intoxication. That at scant had to do with plaintiff’s doings condition, of those instead of defendant. credibility Neither there issue as to the have would made material evidence of his then condi- tion, sobriety as to or the lack of it. " why There is another reason must there be a reversal. The large. amount An of the verdict is examination of the record large; but, convinces us that it is too confirmed as it is *19 judge, the learned trial would we not direct a new trial for damages it our excessive were not for conviction that the size may be, of probably is, explained by the verdict the grossly plaintiff. unfair proof tactics of counsel for intoxication, improper was, defendant’s as it is the least of offending.” (195 794, 795.) N.W. No authorities are opinion support holding cited the that the admis error, sion of the evidence of intoxication was and on a petition rehearing respond for the court stated that: “The petition denied; rehearing ent’s for is but one crit makes opinion taken, grateful icism of the which is well and we are calling point for to it. The counsel attention referred to is squarely place part reversal in opinion that the seems to upon Obviously, proper that is a inter- misconduct alone. intended, concluding pretation, although not the one of the say paragraph opinion. just It does not what should of the portion opinion have been The fact is that the said. solely predicated upon our con- dealing with misconduct is excessive, and that its size clusion that the verdict seemed (Pp. 795, 796.) misconduct of counsel.” have been due to fairly I that last-cited case is think it can be said any juris- only of last resort in American decision of a court majority supports diction which the rule announced authority before, opinion As stated no in the case at bar. support of the rule there an- cited in the Hanskett case predicate in that its does not case nounced and the court inadmissibility but solely upon the of the evidence decision plaintiff in at- upon alleged misconduct of counsel at the the intoxication of the defendant tempting to disclose opinion of the appears As from the of the accident. time rehearing in that denying petition for case judgments was based excessive reversal merely incidental counsel was treated as and misconduct of damages. to the excessive majority opinion in case at bar theory of the
The basic issue; proof that must be are not in facts issues, it is to admit evi therefore error confined to the n opinion first cites the admitted fact. The prove dence to Byers, Cal.App. case of Travelers Ins. Co. alleged if facts in the com holds that P.2d prove need be offered to denied, not no evidence plaint are elementary. But it does not follow This is their existence. by permitting commit error would that a court prove facts. headed Estate opinion next cites the cases majority 454], which hold Boyes, Cal. pleadings is raised issues pertinent
which is of such to allow the introduction immaterial, and it is error evidence, in simply hold that order But these eases evidence. purview within the material, must come relevant to be germane otherwise it is not pleadings, allegation in the some not involve the Boyes did Estate any in the ease. issue merely question but here discussion question under allegation responsive the evidence whether *20 pleadings Light in that The Power case. case of Nantahala & Sloan, major- Co. v. in N.C. S.E.2d cited ity opinion, proceeding acquire was a in to a eminent domain flowage previous A judgment easement. had been entered establishing complaint consent in the easement and the proceeding pleaded eminent domain the existence of such trial, plaintiff previous easement. At the judg- offered the ment in objection evidence and was of admitted over the the defendant. court judgment The held the inadmissible because it recited the amount which had been awarded already acquired by condemnee for the easement the con- demnor. Franklin, pur- stated: “The Town of suant to the terms of the consent entered in paid respondent children, this and her the heirs at law of J. Sloan, $1,200 S. the sum of in full settlement for all growing hydro-electric out of the erection of the town’s plant and the construction and dam, maintenance of its 25-foot plant which owned, operated is now maintained and petitioner herein. price paid Evidence of the for the original in 1928 easement is inadmissible to establish the value of the land in additional taken 1943. is too It remote. ‘When the point is too remote time light to throw issue, wit, the fact at the fair market property value at taking, the time of the incompetent it is and should ex- ’ cluded. Highway State Hartley, supra, Comm. v. (218 N.C. 315]).” S.E.2d It is obvious that this case not does support the rule majority opinion announced case at bar. majority opinion public policy discusses the of the rule case,
announced the Martin permit and states application of that rule will in delay result in the conduct of litigation. are two There obvious answers this argument; first, experience very has shown that there are few cases problem arises, judges and trial prevent are alert privilege abuse proving facts which are dispute if and when seeks to invoke the rule. Or- dinarily, more time by objections is consumed to the evidence required than is for its Second, introduction. since rule part body through judicial law of this state pronouncement period for years, repeal over its repudiation is for Legislature consideration and not public policy the courts. Declarations of Legis- judiciary. lature—not the arguing of the rule announced against the soundness majority opinion “It is true that case, the states:
the Martin
discretion,
cumulative,
may, in
judge
exclude
trial
*21
confusing
the
or
although relevant, evidence to avoid
20
(Douillard Woodd,
court.
Cal.
wasting the time of the
v.
Wineteer,
exercise his discretion in the admission or of evi- exclusion dence and may that he in the exercise of that discretion exclude cumulative evidence that is relevant and material issues committing case without error. While may discretion be something more patience, than I think it has experience been the lawyers of most trial that patient a judge is apt more to exercise a sound discretion than one who is impatient, and to that at least extent the amount of cumulative may permitted which a be to largely dependent upon trial patience
introduce is
may
judge. Therefore, if it
he said that evidence offered
of
evi-
prove an admitted fact is
nature
cumulative
dence, the extent
which the introduction
evi-
of such
may
may
permitted
largely depend
dence
be
judge.
here-
patience and discretion of
trial
As I have
nor
pointed out,
tofore
such evidence is not
irrelevant
purview
any
allegation
if it is
of
immaterial
within
pleadings
though
allegation
even
is
not denied
expressly
admitted.
may
rules
While courts
do refuse to follow
sometimes
appear
which
to be well settled and overrule eases which
many
accepted
period
have been
as authorities over
of
years,
majority
find
of
it seems rather unusual
me to
joining
opinion overruling four
this court
in an
cases which
any
questioned
have
of this
never been heretofore
decision
court,
cases are in accord
the uniform rule
which
with
throughout
supported by all of
the United States and are
given expression
the textwriters who have
their views
majority
subject.
opinion
No
is stated in the
reason
why
harmony
with
California should establish
rule out
general
all
throughout
rule
States as well as
United
of this court and the
Courts
prior
decisions
District
harmony
I
is out
Appeal.
policy
submit that such a
judicial
recognizes
importance
process
with the
maintaining
respect
procedure
rules with
settled
practice
affecting personal
property
as well as those
rights.
it is not
Especially
apparent
this true where
overruling
prior
decisions
sound reason exists for
authority.
harmony
weight
announcing
a rule
with
possible
It
effect of the evidence
be true that
increase the award of
introduced in the
at bar was to
case
fact
damages,
held that
but
has been
thereof,
in
feature
might,
an incidental
*23
tendency
unduly
the
flammatory
arouse
or have
to
(Mohn Tingley,
v.
does
render such evidence inadmissible
not
of the
733]).
What the effect
Cal. 470
P.
[217
This
speculation.
matter
pure
was in
case at bar is a
of
the
and a
returned,
is
every
is
case. After the verdict
true
ground
the
upon
new
is made
the
motion for a
trial
question for the
then
damages
excessive,
are
it
becomes
damages are
judge
trial
as to whether
to determine
gives
he
considera-
determination
making
this
excessive.
tion to the various factors which enter
into
determination
damages
injured
of the amount
person
of
to which an
is
entitled. When such determination is made
the trial
binding
judge,
it
an appellate
unless
amount
damages
plainly
awarded
outrageously
is so
and
excessive
suggest
as
blush,
prejudice
to
at first
passion,
corruption
part
jury.
(8
§88,
Cal.Jur.
Johnston
Long,
of fact entire factual surrounding situation the acci- dent out injury of which the arose. It cannot be denied that either a judge or a trial disposed is more to award a damages substantial amount of in a case where defend- ant is guilty shown to gross negligence have been and his conduct such as disregard to indicate a reckless for the safety of others, negligence than only where the amounted to judgment. error present holding will make possible for a defendant guilty who has been of the most heinous kind of and wanton conduct, including reckless intoxication, to conceal from the trier of fact the extent thereby gain any advantage and culpability, might which flow from the Theoretically absence of disclosure. technically, judged by standards, academic practice this justified, but gauged when experience actual justice administration of it favors the worst offenders by permitting escape larger damages them award might trier justified awarding of fact feel if picture entire were presented. This does not mean that injured a person negligence the result of another should receive more because his tort-feasor was grossly wantonly negligent in- than another with like juries only slightly negligent. whose tort-feasor was But *24 liability recognizes tendency weigh
it the human simply against culpability. the law must be administered Since tendency must be considered beings, human the effect of this contrary argue To as incidental its administration. requires a denial the obvious. hold, contrary
Therefore, disposed if I were authority long-settled state, weight rule in this and the permit plaintiff it court to was error for the trial I prove relating negligence, would the facts to defendant’s required and com- prejudicial be to hold that such error was pelled judgment. This conclusion would reversal damage required probability be that the award because of the erroneously ad- was increased as the result of the If it that the effect of such mitted. cannot be said damages case, in this likewise was to increase the award the effect of evidence would have cannot be said that such It neces- case. must increasing the award of could not sarily such evidence follow that the admission admission erroneous prejudicial any case, and to hold its fighting is as idle as windmill. my whatever the admis- opinion, there was no error judg- negligence and the
sion of the evidence of defendant’s therefore be affirmed. ments should 2, 1947.] 17526. In Bank. Dec. F. No. [S. BOARD MEDICAL MANN, Respondent, v. OF NATHAN et OF CALIFORNIA EXAMINERS OF THE STATE al., Appellants.