Schomaker v. Provoo

California Court of Appeal Mar 30, 1950 No. Civ. 14248Published

Before: Dooling

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Holding. The court held that the trial court did not err in admitting testimony regarding a driver's mental instability to explain his unusual conduct, and that the appellants waived their right to challenge the admission of evidence or alleged attorney misconduct by failing to request limiting instructions or object at trial.

Issues

Whether testimony regarding a driver's mental instability was admissible to explain his conduct and rebut an inference of intoxication.
Whether the appellants waived their right to a limiting instruction by failing to request one at trial.
Whether the appellants waived their right to claim attorney misconduct regarding the calling of a medical witness who claimed privilege.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence was relevant in attempted explanation of Provoo’s extraordinary conduct.”

“The opinion of nonexpert witnesses may be given on those matters which are too subtle or too complex to permit adequate presentation in any other way”

“Appellants would have been entitled to such instruction but the record shows no such instruction requested. Their right to it was thereby waived.”

DOOLING, J.

Plaintiffs appeal from a judgment entered on a jury verdict in favor of defendant Casey. The action was for personal injuries inflicted upon the minor, Donald L. Schomaker, by an automobile driven by defendant Provoo and owned by respondent Casey. The complaint as against Casey counted on the statutory liability of the owner of an automobile who permits another to operate it (Veh. Code, § 402) and on common law negligence in entrusting the automobile to a person known to be or who should have been known to be an incompetent driver. The second claim was based upon the contention that at the time respondent Casey entrusted his automobile to Provoo the latter was intoxicated.

(Knight

Gosselin,

124 Cal.App. 290 [12 P.2d 454].)

After meeting Provoo at a social gathering at which some alcoholic beverages were admittedly consumed respondent Casey in San Francisco entrusted his car to Provoo at about 4 a. m. for the limited purpose, according to Casey’s testimony, of allowing Provoo to drive a few blocks to the home of other friends where Provoo’s wife was spending the night. Instead Provoo took a 70-mile drive, going over the Golden Gate Bridge to Sausalito, thence to "Vallejo, around the East Bay through Oakland and returning to San Francisco by way of the Bay Bridge. The accident occurred at about 11 a. m. near the Fleishhacker Zoo in San Francisco. It was appellants’ theory that the bizarre conduct of Provoo in taking such a ride without any companion during those hours of the morning would support an inference that Provoo must have been obviously intoxicated when the automobile was entrusted to him.

In an effort to rebut this inference respondent called Provoo’s father who testified, over objection, that his son during the period of time in question “had been very unstable. He had reversed his opinions ... he had seemed, well, a little unstable and irrational in some of the statements he had made in conversation that I had detected and noticed. ...”

Appellants argue that the only logical purpose of this tes

[740]

Schomaker v. Provoo

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DOOLING, J.

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