Dunbar v. Messin

California Court of Appeal Jun 17, 1963 No. Civ. 26231Published

Before: Files

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Holding. The court held that a witness may testify from a memorandum made at the time of an event even without independent recollection, that the trial court has discretion to limit cumulative rebuttal evidence, and that the jury instructions regarding proximate cause and aggravation of injuries were legally sound.

Issues

Whether a witness may testify from a memorandum when they have no independent recollection of the facts.
Whether the trial court abused its discretion in excluding rebuttal testimony that was cumulative of the plaintiff's case in chief.
Whether jury instructions regarding the defendants' liability for subsequent aggravation of injuries were erroneous.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We can only conclude now that the witness did accurately testify from the writing as the code section contemplates.”

“The trial court is vested with discretion over the scope of rebuttal, and the ruling here was no abuse of that discretion.”

“The use of the word “proximately” in the instruction served the proper purpose of maintaining the distinction between proximate and remote causation.”

FILES, J.

In this rear end automobile collision case plaintiff is appealing from a judgment based upon a jury verdict for $1,500, which plaintiff considers inadequate. Defendants are the owner and driver of the vehicle which struck plaintiff’s automobile. The collision occurred at 3:50 p.m. on Thursday, February 20, 1958. On the following Monday

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plaintiff returned to Ms employment as an air-conditioning engineer and worked regularly until July 27, 1959, when he stopped because of physical inability. On August 14, 1959, he underwent surgery for herniated intervertebral discs.

Plaintiff testified that on March 20, 1958, he was involved in another automobile collision which, he said, did not affect his back in any way, and in April 1958 he “felt an aggravation” while lifting a trash can. The main question in this case was how much of plaintiff’s claimed physical injury was caused by the February 20 collision. The medical evidence was very much in conflict.

Defendants called as their witness Dr. Shrader, a chiropractor, who had treated plaintiff on the day of the trash barrel incident. Dr. Shrader produced his office record card, which he said was necessary to refresh his memory. Referring to the card he testified that plaintiff came to his office on April 5, 1958, and said he had picked up a trash barrel that morning and had felt something slip in his lower back; also that the patient gave a history of a whiplash injury on March 20, 1958. Dr. Shrader had no record of any mention of a February 20 injury.

On cross-examination he testified that he had no recollection of the conversation, even after reading his record. On redirect he was asked if his memory was refreshed by what was in his notes and he answered, “Yes.” On recross he said he remembered only because it appeared on the writing. Plaintiff thereupon moved to strike out the entire testimony on the ground that the testimony showed that the recollection of the witness had not been refreshed. The motion was denied. Plaintiff now contends that this ruling was prejudicial error. He argues that the testimony as a whole indicates that the witness’ recollection was not refreshed, and that where the witness has no present recollection, under Code of Civil Procedure, section 2047,

Dunbar v. Messin

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FILES, J.

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