95 Cal. 279 | Cal. | 1892
Lead Opinion
Action to recover damages for personal injuries caused by the falling of an elevator. The facts out of which the cause of action arose are the same as those which were presented in the case of Treadwell against the same defendants, reported in 80 Cal. 574, the plaintiff and Treadwell having both been passengers on the elevator at the time of the accident. A verdict was rendered in favor of the plaintiff for $30,000, and from the judgment entered thereon, and also from the order of the court denying a new trial, the defendants have appealed to this court.
1. The case of Treadwell was tried in April, 1883, and a verdict rendered in favor of the plaintiff. While the cause was pending in the superior court on a motion for a new trial, the attorneys for the parties to the present action, who were also the attorneys for the respective parties in the Treadwell case, entered into the following stipulation: —
“ Stipulated that the testimony of D. A. Bangs, as given and taken down by the phonographic reporter on the trial of the case of John Treadwell against said defendants, W. F. Whittier et al., when written out in longhand, and certified as correct by said reporter, may be read and used in the trial, or in any proceedings in the said case of George J. Smith v. W. F. Whittier et al., with like force and effect as if said Bangs was on the stand and testifying in open court, subject only to such objections or exceptions as might be made if said Bangs was testifying in open court in said last-named cause, and also subject to the right of defendants’ attorneys to contradict or impeach said Bangs on any matter testified to by him, without first calling his attention
“San Francisco, November 1, 1884.
“ McAllister & Bergih,
“Attorneys for Defendants.
“Lloyd & Wood,
“ Attorneys for Plaintiff.”
Before the trial of the present case, the witness Bangs left the state and died; and on the second day of the trial the plaintiff offered to read his testimony in the former case, under the foregoing stipulation. To this the defendants objected, upon the ground that the stipulation had not been filed with the clerk until after Mc-Allister & Bergin had ceased to be the attorneys for the defendants, and therefore was not binding upon the defendants. Mr. Delmas had become the attorney for the defendants in place of McAllister & Bergin prior to the commencement of the trial, but his substitution as such attorney was not made a matter of record until after the trial had begun, and on the same day, about two hours after the filing of the order of substitution, the plaintiff caused the foregoing stipulation to be filed with the clerk.
Section 283 of the Code of Civil Procedure provides: “ An attorney and counselor shall have authority, — 1. To bind his client in any of the steps of an action or proceeding by his agreement, filed with the clerk, or entered upon the minutes of the court, and not otherwise.”
The evident object of this section is that whenever the attorney shall enter into an agreement for the purpose of binding his client, there shall be such a record thereof as will preclude any question concerning its character or effect, and that the extent of the agreement may be ascertained by the record, — if oral, that it shall be entered in the minutes, and if written, that it shall be filed with the clerk. “ It is not intended to enlarge or abridge the authority of the attorney, but only to pre
The stipulation in the present case was one which was within the authority of McAllister & Bergin, as attorneys for the defendants, to make. It pertained to tlieconduct of the suit for which they had been employed,, and when made, was binding upon the defendants, and remained binding upon them until they should be relieved therefrom. They were not relieved from the obligation created by it 'by the mere fact that Mr. Del-mas had been substituted as their attorney in the place of McAllister & Bergin. An attorney who is substituted for another in a cause has no greater rights than his predecessor, nor is his client’s position in the case in in any way changed by such substitution. He steps into the place of his predecessor, and stands, with reference to the case and to the other party, precisely as did his predecessor, and can repudiate or be relieved from an agreement that had been made by him only to the same extent and in the same manner as could his predecessor.
The natural effect of this agreement was to induce the plaintiff to forego the taking of the deposition of Bangs, and the agreement itself, in the absence of any showing in reference thereto, may from its terms be regarded as having been entered into for the mutual benefit and convenience 'of both parties, inasmuch as Bangs had been fully examined and cross-examined in the trial of the Treadwell case by the same attorneys for the respective parties, and each was by this agreement relieved of the labor and time that would have been required
It was not necessary that the agreement should have been filed by the plaintiff immediately upon its execution, under the penalty of not being able to avail himtgelf of it. Its execution by McAllister & Bergin was ¡a continuing consent on their part that it might be ¡filed at any time thereafter, unless they should in some direct and express mode signify their withdrawal of such consent, and upon the death of Bangs before such consent was withdrawn, the position of the plaintiff in reference to having his testimony for use at the trial of the present case became so changed that thereafter the agreement could not have been revoked, or the consent ■ of the, attorneys to its filing withdrawn. When it was . afterwards filed, the effect of such filing operated and ibecame binding upon the defendants as from its date.
2. At the trial, the defendant Ravekes was called as a witness on-behalf of the plaintiff, and was asked whether !he had received any directions from those who put the ■ elevator in the building as to how it should be handled or. used, and whether anything was said as to what the effect would be if he did not carry out those instructions; and answered that he had received from them instructions to start slowly at first, and always when reaching . either floor at which to leave the elevator, to decrease the speed by shutting off the water, and never allow the elevator to stop of its own accord; that otherwise the - effect would be to break-a-portion of the machinery in the basement. These questions were objected to by the defendants, upon the ground that they were “ irrelevant and immaterial,” and the overruling of their objection is assigned as error. The argument of the appellants upon this assignment is, however, mainly upon the ground that the evidence was incompetent, for the reason that it was hearsay.
The evidence given by the witness in answer to the questions was both relevant and material. The main issue between the parties to the action was whether the
As negligence is the violation or disregard of some duty or obligation which one owes to another, it is evident that a knowledge of the facts out of which the duty springs is an essential element in determining whether there has been any negligence. In certain relations, such knowledge is conclusively presumed, while in others it devolves upon the party charging the negligence to show that the knowledge existed. Especially is such
The evidence thus introduced was not, moreover, within the rule which excludes hearsay. Hearsay is a species of derivative evidence which is offered for the purpose of establishing some specific fact in a case, and rests on the veracity and competency of some other person than the witness. Such testimony is excluded whenever it appears that a higher degree of evidence of that fact can be obtained by the production of the person from whom the evidence offered was derived; but whenever the testimony of such person is of no higher degree in establishing the fact to be shown than the evidence offered, either is original and primary evidence of that fact. If the fact sought to be established is, that certain words were spoken, without reference to the truth or falsity of the words, as, for instance, that a certain statement was made by a party to the action as an admission of a fact, or was made to him as a notice, or under such circumstances as to require action or reply from him, the testimony of any person who heard the statement is original evidence, and not hearsay. (Wharton on Evidence, sec.
Upon these principles, when Ravekes was told in what way the elevator should be run, and what would be the consequence of running it otherwise, the receiving of that instruction became a distinct fact in the case, and could be shown by any one who heard it. His own admission, whether upon the record or as a witness at the trial, that such instruction was given him, obviated the proof by any other witness, but cannot be considered as hearsay. “ As matter of evidence and practice, proof of actual knowledge may be of great importance. If danger of a well-understood kind has, in fact, been expressly brought to the defendant’s notice as the result of his conduct, and the express warning has been disregarded or rejected, it is above hearsay, and more convincing to prove this than to show in a general way what a prudent man in the defendant’s place ought to have known.” (Pollock on Torts, 356.)
3. The court did not err in allowing the plaintiff to read certain counter-affidavits upon a motion for a new trial. (Spottiswood v. Weir, 80 Cal. 451.) One of the grounds of the motion was the misconduct of the jury,
This ground of the motion for a new trial, as well as the subject-matter of the affidavits, made it essentially proper that the court should allow the plaintiff an opportunity to reply to these affidavits, if it was within its power to do so; and matters presented in support of a claim of inadvertence and excusable neglect are so greatly within the discretion of the court to which they are addressed, that unless there should appear to be an abuse of that discretion, we would not interfere with its action. The defendants were not entitled to a new trial upon this ground, unless the facts upon which it was based existed, and the time within which the plaintiff might controvert such affidavits is not made by the statute jurisdictional, or declared to be a limitation upon the exercise of such light. It is only a rule of procedure, and in the absence of statutory limitation, is subject to the equitable control of the court, and the court should disregard any error or defect in the proceedings, whe never a substantial right of a party is not affected. (Code Civ.Proc-., sec. 475.) Rules of procedure, whether statutory or made by the court, are intended to facilitate courts in doing justice between the parties. They are framed with a view to enable litigants to properly present their cause for determination; and courts, in the exercise of their supervisory care over them, should be inclined to take that course which will enable them to
4. Upon the cross-examination of the defendant Bavekes, the defendants endeavored to show that he had taken no part in the defense'of the present action; and upon his re-direct examination, he was asked whether he had not advocated with his firm a settlement of the case, to which the defendants objected, upon the ground that it was “ incompetent and irrelevant,” but did not specify the grounds upon which they claimed it to be incompetent. The court overruled their objection, and it is now contended by them that in this ruling the court violated the rule which precludes a party from giving evidence relative to offers for a compromise which have been rejected. In the present case, however, there was no treaty for a compromise depending between the parties, and the testimony introduced did not relate to the offer of any terms of compromise, or to any dealing with the adverse party upon the subject of a compromise; and the rule which excludes offers made for the purpose of settlement is inapplicable.
The statement of a party against whom a claim is made, that he is willing to settle the claim, is a declaration by him against his interest, sometimes called a self, disserving or self-harming statement; and section 1870 of the Code of Civil Procedure provides that upon the trial of a cause, evidence may be given of,—“ 2. The act, declaration, or omission of a party, as evidence against such party.” Such declarations are classed in books on evidence under the head of Admissions. Mr. Stephen, in his treatise on Evidence, defines an admission to be, “ a statement, oral or written, suggesting any inference as to any fact in issue, or relevant, or deemed to be relevant, to any such fact made by or on behalf of any party to any proceeding.” Within this definition, the testi
The question asked of the witness Ravekes concerning the statements of Smith when he came up in the elevator were so clearly connected with the accident as to be relevant to the issue between the parties, and the reply was of such a nature that the defendants could not have been prejudiced thereby.
5. We cannot hold that the damages were so excessive as to appear to have been given by reason of any passion or prejudice on the part of the jury.
The plaintiff, at the time of the accident in 1878, was thirty-six years of age, in good health, and engaged in an extensive business, which required .great physical activity. The elevator fell with him from the upper floor of the building to the basement, a distance of from forty to forty-five feet, and by the fall he was so injured as to prevent him from continuing his business, and to disable him from engaging in any active occupation. It is unnecessary to recount in detail all the various injuries which he received, or the sufferings which he endured during the time that he was under the care of the surgeon. He was confined to his bed for nearly a year, and it was three years before he could walk the distance of a block. When he was first carried to his house, his limbs were completely paralyzed, his right leg broken with a comminuted fracture, and the bones of the shin protruding from his flesh and clothes, the bones of one ankle broken, and the arch of his foot so
It is not contended by the appellants that the record discloses any indication of passion or prejudice cm the . part of the jury in determining the amount of damages which they awarded, other than the mere fact of its amount. The judge before whom the case was tried approved the verdict, notwithstanding the objection to the amount made by the appellants, and in consideration of the character and extent of the injuries slaown to have been sustained by the plaintiff, we are not inclined to disregard his action.
The judgment and order are affirmed.
McFarland, J., and Garoutte, J., concurrecL
Concurrence Opinion
I concur in the judgment and in the opinion of Mr. Justice Harrison, except that part which holds that the testimony of th.e witness Ravekes, upon his re-direct examination, to the effect that while a member of the firm of Whittier, Fuller & Company he had advocated a settlement of plaintifPs claim for damages, was competent as an admission of
The witness, in his examination in chief, testified to material facts tending to show negligence on the part of the servant of defendants in his mode of operating the elevator at the time of the accident which resulted in the injury of which plaintiff complains. The entire purpose of the cross-examination, which was conducted with great skill on the part of the attorney for the defendants, seems to'" have been to show that some time after the accident the witness was compelled to withdraw from the firm of which he and the defendants were members, because he had overdrawn his account with the firm without the consent of his copartners, and that they had charged him with peculation, and in consequence that their relations were unfriendly at the time of the trial. The inference, of course, sought to be drawn from these "facts was that the matters testified to by the witness were not true, and that his testimony was simply the result of the subsequent trouble between himself and the defendants.
Under these circumstances, it was not improper to show by the witness that prior to any difficulty with defendants, his advice to them was entirely consistent with his present testimony, and such as would probably have been given in view of the existence of the facts about which he testified. It is held that former consistent statements of a witness are admissible to support his testimony when it is charged to have been a recent fabrication, in which case, in order to repel such an imputation, it is proper to show that the witness made a similar statement at a time when the supposed motive for such fabrication did not exist. (Rapalje on Witnessed, 369, 370); and the evidence under discussion com|es within the spirit and reason of the rule just stated. Ilf the defendants desired to show that this ad
In the examination of a witness for the purpose of showing motive, interest, or prejudice, or in rebut'Png an imputation of giving testimony from some unwofthy motive, much is necessarily left to the discretion of the judge of the lower court; and it does not seem that in this instance there was any improper exercise of di"®r®° tion in the ruling upon the question referred to,
Beatty, C. J., and Sharpstein, J., concurred.