Murry v. Manley

California Court of Appeal May 14, 1959 No. Civ. 9624Published

Before: Warne

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Holding. The trial court abused its discretion by requiring the plaintiffs to establish a prima facie case before allowing them to call the defendant as an adverse witness under section 2055 of the Code of Civil Procedure.

Issues

Whether a trial court may require a party to establish a prima facie case before calling an adverse witness under section 2055 of the Code of Civil Procedure.
Whether the trial court's refusal to allow the reading of a deposition into evidence constituted prejudicial error.

Disposition. reversed

Quotations verified verbatim against the opinion

“since an adverse party may be called under section 2055 even to prove the whole ease, we feel that the trial court in the instant case abused its discretion in refusing to permit the appellants to call the respondent Manley”

“Whenever it was material to appellants’ case, or whenever they desired to call Manley an an adverse witness, it was their privilege under the statute to do so.”

[365]

WARNE, J. pro tem.

This is an appeal from a judgment of nonsuit entered in a wrongful death and personal injury action.

The evidence reveals that on the 25th of April, 1955, one of appellant Lillian May Murry’s sons and her husband were fatally injured when the automobile in which they were riding collided with respondent’s truck and trailer. Another son of Mrs. Murry's was injured in the accident, but he was asleep at the time and has no recollection thereof. In his opening statement made to the jury, plaintiffs' counsel stated that he would call a disinterested witness to support his case, but it does not appear from the settled statement upon which this appeal is presented whether the witness was the highway patrol officer who investigated the accident or an eyewitness. In any event, the highway patrol officer was called as a witness, but plaintiffs did not interrogate him relative to any phase of his investigation but chose to limit their inquiry to establishing a foundation for the introduction of certain photographs. Appellants then sought to call as a witness the defendant-respondent Walter Carl Manley under the provisions of section 2055 of the Code of Civil Procedure, and upon objection, the trial court ruled that appellants had not made out a prima facie case, and until they did so they would not be allowed to call respondent as an adverse witness under the provisions of said section. Upon the same ground appellants were not permitted to read into evidence Manley’s deposition taken under the provisions of sections 2016 and 2055 of the Code of Civil Procedure, and respondent’s motion for a non-suit was granted.

Appellants contend that each of the above-mentioned rulings of the trial court constituted prejudicial error. On the other hand, respondent argues that under the provisions of section 2042 of the Code of Civil Procedure the order of proof was a matter to be regulated in the sound discretion of the trial court. While there is authority to support respondent’s position

(Land

Del Mar Turf Club,

120 Cal.App.2d 829, 831 [262 P.2d 54]), this court in

MacGregor

Murry v. Manley

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