103 P. 190 | Cal. | 1909
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *714 Elizabeth M. Perkins, one of the plaintiffs who is the wife of the plaintiff J.F. Perkins, was injured by falling into a hole which had been dug by the servants of appellant for the reception of a telephone pole in a street in the city of Ukiah. She and her husband brought suit against the defendant corporation for damages and for the rescission of a certain contract of release which they had made with the Sunset Telephone and Telegraph Company. The judgment was in favor of plaintiffs upon both issues. The agreement was thereby declared void and was ordered canceled upon restoration to the defendant of the consideration. Damages in the sum of twenty-five thousand dollars were awarded plaintiffs. This is an appeal from the judgment and from the order denying defendant's motion for a new trial.
The questions with reference to the alleged release were, upon appellant's motion, determined by the court and the verdict for damages was rendered by a jury.
Appellant's first assignment of error relates to the selection of jurors from a special venire instead of from the list prepared according to statute by the board of supervisors. Our attention is called to the fact that seven of the jurors who tried the case resided at or near Ukiah where plaintiffs *715
lived and all but one member of the jury knew Perkins and his wife. This acquaintance, appellant contends, was of such nature that the jurors must have given unconsciously more weight to the testimony of plaintiffs than to that of other witnesses. This, it is asserted, compelled the defendant corporation to submit its cause to an unfair jury. There is no merit in this contention. Mere acquaintance of the jurors with a litigant does not imply bias by them in his favor any more than it raises a presumption of prejudice against him. Nor is there any impropriety in the court's refusal to draw a jury from the citizens whose names appeared on the supervisors' list rather than from talesmen summoned on a special venire. (People v. Suesser,
Appellant directs this court's attention to a number of alleged errors in the admission of evidence. These we will consider in detail. Doctor Bond was asked this question to which the following answer was given: "State whether or not, in your opinion, doctor, you think that a person falling into a hole could receive injuries sufficient to cause her present condition?" Answer. "I think it could." The objection to this question was that it "called for a conclusion in a matter of expert testimony." While the interrogatory was exceedingly broad and the question omitted specification of the size of the hole, the manner of the fall, the weight of the individual, and like details, there was no objection made to the question on the ground that it was not sufficiently specific or that it did not contain enough details to make it a fair hypothetical question in view of the evidence in the case. It is too well established to require extended argument that an expert surgeon may state generally the sort of agency, means, or instrument which may have produced a given injury; as for example, whether or not a wound was inflicted by a blunt or a cutting instrument, or whether or not an ascertained lesion was a gunshot wound. The above question was within this rule. (See State v. Seymore, 94 Iowa, 699, [63 N.W. 661], Batten v. State,
Two of the physicians were asked if the condition of Mrs. Perkins could have been produced by a blow on the side of *716
the head. Objection was made to such inquiries on the ground that they were "mere speculation and mere probability" or "too speculative." These objections were properly overruled. No line of inquiry is more thoroughly within the scope of a legitimate examination of an expert surgeon than that relating to the probable cause of a physical injury. No objection was made to the form of the question nor to its general character. While it is true that a hypothetical question where allowable at all, must conform to the testimony (Rowe v. Such,
Mrs. Randall, an intimate acquaintance of Mrs. Perkins, gave her opinion regarding the latter's mental condition at the time of the signing of the release mentioned in the pleadings. She described the plight of Mrs. Perkins after the accident and before the date upon which the release was signed. It is not clear whether or not her testimony had reference also to a period subsequent to the execution of that instrument. It makes no difference whether or not her description of her friend's illness included some matters occurring after the release was signed, because it is proper in such an action as this to receive evidence with regard to a person's mental condition both before and after the time of the act involved in the investigation.(Estate of Toomes,
Witness Randall was permitted, over appellant's objection, to testify to a conversation with Mrs. Perkins in which the latter disclaimed any interest in the money to be derived from the telephone company, saying that "it was her property if she received it"; and Mrs. Perkins was allowed to state *718
while on the witness stand that the amount of damages which she expected to be paid by the telephone company was hers. We think that the objection to the question asked of Mrs. Randall should have been sustained and the motion to strike out the answer should have been granted, but in view of the fact that Mr. Perkins was permitted to testify with reference to this matter, the error was not vital if respondents' theory of the case is correct; and that question we will presently examine. While the answer of Mrs. Perkins that the claim against the company was her property was in a sense an expression of opinion, there is authority for the introduction of such evidence and sustaining such a question as the one propounded to her by her counsel. As a general rule ownership of property is a fact to which a witness may testify. (Bunting v. Salz, (Cal.) 22 P. 1133; Kaltschmidt
v. Weber,
Elizabeth M. Perkins was asked by her counsel "Are you a religious lady?" Objection that the question was immaterial was overruled and the witness answered: "I hope I am." The objection should have been sustained, but we fail to see how appellant could have been injured by the erroneous ruling. We cannot share the apprehension of appellant's counsel that her reply must have caused the jurors to put more confidence in her sworn statements because of the suggestion that she was a religious lady. Her answer was not positive, but even if it had been and had she proclaimed her piety, we cannot see how her mere profession of religious belief could have created an improper influence upon the minds of the jurors. Nearly all civilized people have some sort of religion and the discovery by a jury that a witness possesses such belief would not, we think, so far differentiate that individual from the rest of mankind as to give his or her statements peculiarly solemn weight with the jurors. Cases might arise in which evidence that a witness belonged to some certain religious sect might either increase or diminish the credit of the witness with some juror or jurors but we fail to see how the mere possession of convictions regarding religion could operate to create improper bias in the minds of jurors.
The court found, among other things, that for more than ten years there had been an agreement between J.F. Perkins *719 and his wife whereby it was mutually consented that all community property on hand or to be acquired by either should be and become the sole and separate property of Elizabeth M. Perkins; that said agreement was still in force and had been in effect since it was made; that Mr. Perkins had deeded all of the realty of the community to his wife in 1902 and that she had thereafter collected and retained all the rents, issues, and profits therefrom; that in 1903 he had by bill of sale transferred to her all title to a part of the personal property of the community; and that after the injury to Mrs. Perkins and prior to the execution of the agreement of February 8, 1906, with the telephone company, J.F. Perkins had relinquished to his co-plaintiff all his interest in the cause of action for damages. Appellant attacks these findings on the ground that the evidence is insufficient to support them, but they set forth substantially the facts deducible from the testimony of plaintiffs themselves and of other witnesses. Appellant calls attention to the fact that there is no evidence of an assignment by the husband of his interest in the cause of action and then cites authorities to the effect that a cause of action for tort is not assignable. Undoubtedly appellant is correct in its position that such cause of action generally cannot be assigned, but the point is not here involved. The findings are not that there was an assignment but that long before the cause of action arose Mr. Perkins relinquished his interest in the community property and that his act, after the injury to his wife, was one of relinquishment and not of assignment. Respondents contend that: 1. The cause of action was the separate property of the wife when it arose; and, 2. That in any event the agreement between the two spouses was sufficient to transmute the community property into separate property.
Under our law there can be no doubt that a husband and wife may enter into a contract with respect to their property whereby one may release to the other all interest, both present and in expectancy. (Crum v. O'Rear,
The finding that Elizabeth M. Perkins was of unsound mind but not entirely without understanding on February 8, 1906, is attacked by appellant on the ground that it is not supported by the evidence; but we think that the finding which seems to have been made in view of the provisions of section
Appellant attacks the verdict as excessive and it therefore becomes necessary to examine the evidence upon that point. Dr. Bond testified that Mrs. Perkins's right side was at one time completely paralyzed but that at the time of the trial she could use her right foot a little. He stated that she was blind in her right eye and that her spine was so curved that it caused the ribs to contract the chest. He also said that the sight of her left eye was impaired. Dr. Dickinson's description was much the same except that he added some details as to hemorrhage from the lungs and stomach. He also told of the lady's good health prior to the accident. Dr. Stout's account of the physical condition of Mrs. Perkins was similar *722
to those of his professional brothers. Mrs. Perkins was fifty-seven years of age at the time of the trial. In the prevailing opinion in Reeve v. Colusa Gas and Elec. Co.,
Appellant's counsel criticise as erroneous one of the instructions upon the subject of contributory negligence. After reciting the averment in the answer that the injury was due to the contributory negligence of Mrs. Perkins, the instruction continues as follows: "I further instruct you that whether the signs, signals, warnings, barriers, lights and obstructions, if any, were sufficient under the conditions to make the said plaintiff guilty of contributory negligence is a question of fact for you to determine from the evidence; and it is also a question of fact for you to determine from the evidence whether or not there was at the time of the accident any sign, signal, light, warning, barrier, barricade or obstruction to protect the public from falling into and being precipitated into the said excavation." Appellant calls attention to the omission from this instruction of the element of respondent's possible carelessness and abstraction and complains that the jury must have inferred that, as matter of law, it was appellant's duty to maintain at the excavation some sign, signal, or light. Mere abstraction or lack of attention to the condition of the sidewalk by a pedestrian passing over it cannot be assigned as contributory negligence. Even intoxication does not constitute contributory negligence in such a case, for as Mr. Justice Heydenfeldt once wittily observed, "A drunken man is as much entitled to a safe street as a sober one and much more in need of it." (Robinson v.Pioche,
It is conceded by respondent that ordinarily a mistake of fact concerning the extent of an injury is not sufficient to avoid a release fully, fairly, and understandingly executed; but here we are called upon to consider a finding that Perkins, a man enfeebled in mind and body, was ignorant of the character, nature, and extent of the injuries to his wife. The finding may be fairly interpreted as referring to the injuries as they existed at the time of the execution of the release and not to their extent as developed at a later period. In that view of the finding the rule with reference to a "speculative contract or transaction" as stated in Colton v. Stanford,
The judgment and order from which defendant appeals are sustained.
Lorigan, J., and Henshaw, J., concurred.
Hearing in Bank denied.