Trigueiro v. Skow

California Court of Appeal Dec 28, 1937 No. Civ. 10523Published

Before: Goodell

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Holding. The court held that a party waives the right to object to a witness testifying without an oath if the party fails to make a timely objection during the trial, and that the trial court's reduction of the damages verdict was a proper exercise of discretion.

Issues

Whether the failure to object to a witness testifying without an oath at the time of trial constitutes a waiver of that objection.
Whether the damages verdict, as reduced by the trial court, was excessive as a matter of law.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Where, however, a witness is permitted to testify without having been previously sworn; and that fact is known at the time, the defect must be taken advantage of at once, and a failure to do so is such acquiescence in the testimony”

“We are satisfied that the circumstances of this particular ease,—objection being made for the first time on appeal,— clearly call for the application of the rule, and that any error in permitting the unsworn testimony was waived.”

“The power of appellate courts over excessive damages exists only when the facts are such as to suggest, at first blush passion, prejudice or corruption on the part of the jury.”

GOODELL, J., pro iem.

The respondent Francis Trigueiro sued, through his guardian

ad litem,

for injuries inflicted by a motor truck driven by the appellant Stanley Skow and owned by the other appellants. Josephine Trigueiro, his mother, sought special damages for surgical, nurs

[254]

ing and hospital expenses incurred for her son’s care. A verdict of $5,000 for the son was reduced to $3,000 on motion for new trial. The mother’s verdict was for $898.31.

Francis, a boy of five, was injured while playing with Ernest Caswell, then aged four, outside the Caswell home in El Cerrito. Ernest corroborated Francis’ testimony as to the occurrence and was the only other eye-witness. Ernest, however, was not sworn and that omission presents the first point on this appeal.

The appellants contend that a witness can be heard only upon oath or affirmation. (Code Civ. Proe., see. 1846.) The respondents, of course, do not question this general rule, but they claim that objection was waived. When Ernest was called to the stand the judge asked him the preliminary questions usually put to children. When asked if he went to school, he answered that he went to kindergarten at Stege, and named his teacher. He told the court that he was then five, lived with his mother, father, brother and sister at 5748 School Street; also that he attended Sunday school. It should be borne in mind that no objection was made that the boy was incapable of receiving just impressions of the facts, or of relating them truly (Code Civ. Proc., see. 1880, subd. 2), or that the judge had not examined Mm thoroughly enough; nor did counsel seek to supplement the judge’s inquiry, as might have been done

(People

Delaney,

52 Cal. App. 765, 773 [199 Pac. 896]), and no point is now made in any of those respects. The judge satisfied himself that the lad had the requisite intelligence, and then questioned him as follows: “Q. And do you know what it means to tell the truth? A. Yes. Q. You know what that means? A. Yes. Q. Do you know what happens to little boys that don’t tell the truth? A. Their guardian angel runs away. Q. And you think you always tell the truth, do you, Ernest? A. Yes. Q. Well, I guess we can swear him or I guess he better testify without swearing him. ... it is a pretty good answer that the guardian angel runs away.” Thereupon respondents’ counsel inquired, “Will you stipulate he may testify without being-sworn? I don’t know what the rule is, your Honor,” and appellants’ counsel replied, “I think it is a matter within the discretion of the court. I think he is pretty young to put under oath,” to which respondents’ counsel assented. The court then said, “It is in the discretion of the court whether

Trigueiro v. Skow

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