Kennedy v. Reece

CONLEY, P. J. Originally, the plaintiff filed an action to recover the balance claimed to be due from the defendants on a contract to drill a water well at their mining installation. On the first trial, the court granted judgment to the defendants on their counterclaim against the plaintiff and appellant on the basis of his failure to drill the well to a depth of 400 feet in accordance with his contract. Because of the breach by Mr. Kennedy, the court then awarded the defendants a balance of $1,307.15, but it was in error as to the details going to make up the judgment; this court, in Kennedy v. Reece, 225 Cal.App.2d 717, 727 [37 Cal.Rptr. 708], reversed the judgment only insofar as the award of damages on the counterclaim was concerned, but affirmed it otherwise, as follows: “The judgment is reversed only as to the damages awarded on the counterclaim with directions to the trial court (1) to permit the defendants upon application to amend their counterclaim as to damages, and (2) to retry the case with respect only to damages on the counterclaim; the judgment is otherwise affirmed.”

Upon the going down of the remittitur, the trial court did permit the defendants to amend their pleading, and conducted a trial restricted to the ascertainment of damages on the counterclaim. The judgment in favor of the defendants on the second or supplemental trial was for $1,687.50, together with costs of suit. In reaching this conclusion, the court decided that it would reasonably cost $2,687.50 to complete the drilling of the 400-foot well in accordance with the contract and deducted from this sum the $1,000 balance which the defendants would have had to pay for full performance under the provisions of the contract.

Two points on appeal are urged by the appellant. First, it is claimed that the court erred in receiving the testimony of Clyde R. Seitz, a mechanical engineer, with respect to [771]the estimated cost of completing the well to the 400-foot level, and it is also argued that, by reason of the form of the opinion of this court upon the earlier appeal of the case, the superior court was bound to find that the drilling of the well could have been accomplished through the payment of $5.00 per foot from the 270-foot level to the 400-foot level.

The attack upon the qualifications of Mr. Seitz as an expert is not well founded. It is the universal rule with respect to the receipt of opinion evidence from one particularly versed in a given subject, trade, or profession that the trial court is, preliminarily, the judge of the qualification of the proposed witness. The trial judge has a wide discretion as to whether or not to permit the receipt of tendered evidence of this kind, and the District Court of Appeal has no power to interfere with such a ruling of the trial judge unless there is an obvious and pronounced abuse of discretion on his part. (Strauss v. Kunin, 156 Cal.App.2d 558, 565 [319 P.2d 783]; Darling v. Pacific Electric Ry. Co., 197 Cal. 702, 714-715 [242 P. 703]; Valdez v. Percy, 35 Cal.App.2d 485, 492 [96 P.2d 42]; 19 Cal.Jur.2d, Evidence, § 296, p. 23.) We find no such abuse of discretion in this case.