Zanotto v. Marogna

PAULSEN, J. pro tem.

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This is an appeal from a judgment entered on a jury’s unanimous verdict awarding respondent damages in the amount of $2,300 for injuries inflicted by an assault and battery committed upon her by the appellants, who are husband and wife.

The appellant wife admitted that she struck the respondent several times in the face in the course of an affray which

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occurred in a small roadside café and bar; and it is tacitly conceded that there was sufficient evidence to support the jury’s implied findings that the appellant wife made an unprovoked attack on respondent when she was seated at the bar with some friends, and that the appellant husband joined therein by kicking respondent when his wife was dragging her out the door by her hair. Likewise, it is undisputed that as a result of the blows administered by the appellant wife, the respondent’s face was badly bruised and swollen, and there was evidence of injuries to her shoulder, back and shins. Therefore, we shall not narrate the details of the episode except such as are necessary to an understanding of the questions of law raised on this appeal.

Appellants attempted to impeach respondent by the use of her complaint. The court sustained an objection on the ground that she had not personally signed the complaint and it had been verified by her attorney. Ordinarily, the testimony of a party can be impeached by plaintiff’s inconsistent statements in a pleading which has been verified.

(Gajanich

v.

Gregory,

116 Cal.App. 622 [3 P.2d 389].) Where the circumstances indicate that the witness is responsible for such inconsistent statements there appears to be no reason why a pleading signed and verified by her attorney should not be so used. In the instant case, however, there was no showing whatever that the witness had ever seen the pleading or that she had furnished the information on which it was based. Moreover, there was no foundation whatever laid for the asking of such a question as provided in section 2052 of the Code of Civil Procedure. For these reasons alone, the ruling was correct. In addition thereto the part of the complaint sought to be used was not necessarily inconsistent with the testimony already given by the witness. She had testified that during the affray with Virgia Marogna, she saw Charles Marogna coming towards her but did not see him do anything or touch her as she was rendered unconscious by the blows struck by Virgia Marogna. The allegation of the complaint read: ‘