De Victoria v. Erickson

WARD, J. This is an appeal from an order granting a new trial in favor of plaintiff in a personal injury action. The motion for a new trial was made upon all of the statutory grounds designated in Code of Civil Procedure, section 657. The record does not disclose the ground or grounds upon which the order was based. During the oral argument counsel for plaintiff designated certain errors considered as grounds for a new trial. It was then stipulated that the respective parties should file additional briefs.

In the present case on cross-examination witness Joseph De Victoria, a son of plaintiff, was interrogated. The following appears in the record: “Q. Don’t you [De Victoria] recall of a gentleman coming up there, and you saying to him, giving out certain exclamations of distress about this automobile that had gone by and splashed the water, and caused you to back up ? Mr. Dresow [attorney for plaintiff] : Just a minute, I object to that as not proper cross examination. Mr. Gunther [attorney for defendants] : It is laying the foundation. I have such a witness. Mr. Dresow: You can impeach him by other testimony. Mr. Gunther: Tour Honor, I am laying the foundation for the impeachment. The Court : All right. Mr. Gunther: Q. After the accident, there at the scene, do you recall of a gentleman coming up there and talking to you? A. I remember a lot of people saying a lot of things to me, sir. Q. But do you remember a gentleman coming up ? A. I recall there was quite a few people around there, that is all. Q. Do you recall a gentleman coming up while your mother was still lying there on the pavement? A. No, sir. Q. Do you remember of a gentleman coming up and taking off his overcoat and putting it over your mother? A. No, sir. Q. And do you recall of a gentleman, [208]after taking off his overcoat, standing there in the rain without any overcoat, while his overcoat was on your mother, until the ambulance came? A. No, sir. Q. Do you deny that you ever tried to get the number of this car that went by? A. Yes, sir. Q. And do you deny that a car ever splashed any water on you? A. Yes, sir. Q. And you also deny the fact that you backed up at any time? A. Yes, sir.” Further questions were asked and answers given as grounds for the foundation for impeachment, tending to show that a ear, other than defendants’, caused the accident. Defendants then offered a written statement, evidently signed by the witness but written by some other person, as impeaching "evidence. This written statement was excluded from the record evidently because defendant did not show the persons present or the circumstances surrounding the signing of the statement. Plaintiff thereafter moved to strike out the evidence previously claimed to be grounds for impeachment. The court failed to rule on this motion. Defendants not only failed to prove, through the witness Joseph De Victoria, the circumstances of time, place and persons present as a foundation for the subsequent offer of the written statement, but refused, or at least neglected when the statement was finally offered, to prove “the circumstances of times, places, and persons present” when the alleged impeaching statement was signed by the witness. (Code Civ. Proc., § 2052.) The record indicates that after asking questions of Joseph De Victoria injurious to plaintiff Ruth De Victoria’s claim for damages against defendants, the defendants abandoned the proposed impeachment of the witness.