Provencio v. Merrick

Opinion

GUSTAFSON, J.

In a personal injury action judgment was entered upon a verdict for the defendants. Plaintiff appeals.

After plaintiff and defendants had rested their cases in" chief, attorney James J. Oppen, trial counsel for plaintiff, called as a witness attorney Arthur . O. Aragon, trial counsel for defendants. The trial had originally been set for August 6, T96~8; A continuance to December 16-, 1968, was granted to defendants over the opposition of plaintiff on the basis of Mr. Aragon’s declaration under penalty of perjury that “the testimony of Officer W. J. Drevs is essential to the defense of this action, in that he investigated the accident in which the above lawsuit arises and he will be on vacation

[41]

from August 5, 1968 to August 27, 1968.” Officer Drevs was not called as a witness by defendants at the trial and Mr. Oppen sought to show by examination of Mr. Aragon that in the light of the ground for continuance there was “suppression of evidence” from which the jury could have inferred that the testimony of the officer would have been adverse to defendants. Objection was sustained to the introduction of evidence concerning the representations made by Mr. Aragon to obtain the continuance.

Plaintiff contends on appeal “that Mr. Aragon had wilfully and fraudulently suppressed the evidence of Officer Drevs . . . , that he would have been entitled to an instruction on wilful suppression of evidence, and a further alternative instruction that the evidence, if produced, would have been adverse to Mr. Aragon and his client.” For these contentions plaintiff relies upon

Hays

v.

Viscome

(1953) 122 Cal.App.2d 135 [264 P.2d 173, 39 A.L.R.2d 1435]. That reliance is misplaced.

In

Hays

the crucial question was the extent of the damages suffered by plaintiff. Defendants’ attorney had exercised his right to have a physician of his choice examine plaintiff. Defendants rested without calling the physician as a witness. The plaintiff’s attempt to show that the examination had taken place was foreclosed by the trial judge. On appeal this ruling was held to be prejudicial error. While not free from doubt, it appears from the opinion that the error lay in foreclosing plaintiff from showing that defendants produced “weaker and less satisfactory evidence” than that which was within their power to produce (Evid. Code, § 412) rather than that there was “willful suppression” of the testimony of the physician. (Evid. Code, § 413.)