Castro v. Morita

SHINN, P. J.

The present action was for personal injuries sustained by plaintiff Castro when he was knocked down by a hand-truck operated by defendant, Sam Morita. In a jury trial Castro recovered a judgment of $30,000 against Morita and others. In new trial proceedings plaintiff accepted a reduction of the judgment to $20,000; defendants appeal from the modified judgment.

It is conceded by defendants that there was substantial evidence of their liability. Nevertheless, they ask that a new trial be ordered as to all issues. Their serious contentions are that the amount of the reduced judgment is excessive and that there was serious irregularity in the court’s permitting plaintiff’s counsel to discuss new matter in his closing argument and in denying defense counsel an opportunity to reply thereto.

We shall consider the two contentions together. At the time of trial Castro was 60 years of age. He was without schooling, spoke only Spanish; after coming to the United States in the early twenties he was a railroad laborer for two years; he became a vegetable peddler and followed that occupation until 1938 when he became employed by a Mrs. Sanchez, for whom he picked up vegetables at a wholesale market each morning, after which he assisted her in the store by waiting upon customers. His injuries occurred at the market on No

[536]

vember 30, 1956; he has not worked since that time. Plaintiff testified that a Mrs. Estrada, in whose home he had been living, had been taking care of him ever since the accident and that he had promised to pay her $100 per month when he should get work. The nature of his injuries will be described later.

A major factor in the award of damages was the claimed loss of earnings and earning ability. The record upon this issue presents an unusual situation.

In his opening statement plaintiff’s attorney told the jury the proof would show that plaintiff had been earning between $200 and $300 per month. In his opening argument he made the same statement and claimed for plaintiff a life expectancy of 20 years. He also alluded to testimony of plaintiff that he had promised to pay Mrs. Estrada $100 per month when he should get work. In his closing argument the attorney placed upon a blackboard computations of damages based upon an expectancy of life of 10 years and assumed earnings of $200 per month, plus $100 per month which plaintiff had promised to pay Mrs. Estrada. The total figure was about $42,000. Defendants’ attorney registered objection to this argument upon the ground that it was new matter and not at all responsive to any argument which he, himself, had made. The court was of the opinion that defendants’ attorney had argued the same matters to the jury and denied his request for permission to address the jury on the subject. As a matter of fact, defense counsel in argument had not mentioned the matter of plaintiff’s earnings, although he made light of the claim that plaintiff was seriously disabled. The odd feature of this situation is that there was no evidence whatever respecting the amount of the past earnings of plaintiff. He was not questioned on the subject. He had been working for Mrs. Sanchez for 18 years. He testified “I used to work even 14 hours every day. It wasn’t too hard a job but it was 14 hours. . . .” If the statement of his attorney was correct it would have meant that Mrs. Sanchez had been paying plaintiff between $200 and $300 per month. We find in the briefs the same treatment of the subject. Plaintiff’s brief discusses damages upon the assumption that plaintiff had been earning and had had the ability to earn from $200 to $300 per month. Defendants’ brief does not mention the subject nor call attention to the fact that there was no evidence respecting plaintiff’s earnings.