Ellenberger v. Karr

Opinion

KINGSLEY, J.

Defendants appeal from an adverse judgment in an action for personal injuries; plaintiffs appeal from an order taxing costs. We affirm both the judgment and the order.

The Appeal From the Judgment

Plaintiff Terry Ellenberger was injured in an automobile accident. He sued for damages and his wife Dwana joined seeking damages for loss of consortium. Both defendants stipulated to liability and the case went to the jury solely on the issue of damages. After a long trial, the jury returned a verdict for Terry in the amount of $175,000 and for Dwana in the amount of $25,000, of which $20,000 was stated to be for her loss of consortium.

I

Defendants contend that the evidence does not support the verdicts. We disagree. There was extensive testimony on both sides both as to the extent of Terry’s injuries and (as bearing on the consortium issue) as to the domestic life of Terry and Dwana. The conflict was direct; it was for the jury to resolve it; the trial court denied a new trial motion. We have no right or power to substitute our opinion for that of the triers of fact.

[427]

II

Defendants sought to introduce evidence that plaintiffs had filed no income tax returns for the years immediately preceding the accident. The trial court rejected that request, basing its ruling in part on section 352 of the Evidence Code. Defendants rely on

Newson

v.

City of Oakland

(1974) 37 Cal.App.3d 1050 [112 Cal.Rptr. 890]. That case, however, dealt only with whether a litigant had a privilege to withhold similar information. As we have said, the ruling here was not based on that ground. We conclude that the trial court did not err in its ruling. While a jury

might

conclude from the failure to file a tax return that plaintiff had not earned as much prior to the accident as he here testified he had earned; on the other hand, the jury might conclude that he was a tax evader. Not to open up the case to that kind of pure speculation is the very purpose of section 352.