Pedrow v. Federoff , 77 Cal. App. 164 ( 1926 )

Two points are urged for a rehearing of this cause. [10] The point first made in the petition was practically considered and disposed of in the original opinion. It is this: That the testimony of Mrs. Pedrow is, upon its face, plainly incredible and that, in deciding the case, the trial court should have attached to it no weight whatsoever and that, in giving it credit, as presumptively it did, it abused its discretion. It is to be conceded that Mrs. Pedrow made one statement while testifying which does not bear the earmarks of truth, and that was that, while in the act of alighting from the cab, she at the same time handed to the driver, still sitting in the taxi and at the wheel, the fare for conveying her and her daughter to Yuba City. This statement appears to be incompatible with her testimony that, on attempting to leave the car, and while her body was outside the cab, she was thrown to the ground by reason of a lurch or sudden movement of the taxi. But we paid no specific attention to that apparent inconsistency in the former opinion because, as shown in said opinion, the record showed that the judge, in deciding the case, stated that he would be inclined to give defendant judgment if there were before him no other testimony than that of Mrs. Pedrow upon which the court could justifiably predicate a judgment for plaintiffs. Thus, it would clearly appear to be true, the judge discredited, to some extent at least, Mrs. Pedrow's testimony. And, as shown in the former opinion, there was testimony other than that of Mrs. Pedrow sufficient to show that the accident and the resulting injuries to Mrs. Pedrow were directly due to the negligence of the taxi driver. It follows that, without considering Mrs. Pedrow's testimony involving her version of the circumstances under which the accident happened, there exists substantial evidentiary support to the decision, and the evidence presented by defendants as in impeachment of the case of plaintiffs as made by the proofs, merely had the effect of producing a substantial conflict in the evidence as a whole which it was the sole function of the trial court to resolve.

[11] The second point stressed by counsel in support of the petition here is that the court erroneously refused to receive testimony the particular object of which is not disclosed by the record, but which counsel declares in his briefs and the petition here would have the effect of impeaching the testimony of Mrs. Pedrow — that is, that it would show that she had at some other time made statements as to the manner in which or the circumstances under which the accident occurred which were in material particulars inconsistent with her testimony before the court. One L.B. Smith was called by defendants for that purpose, and the following thereupon occurred: Q. (By counsel for defendants): "Mr. Smith, were you in the party that went over in front of Mr. Federoff's place some time the latter part of May, on the evening when Mr. Federoff and myself were there? A. Yes, sir. The Court: Are you going to testify, too? Mr. Connelly (counsel for defendants): No, I won't. The Court: If you don't mind, I don't think this will have any effect on me whatever. Mr. Connelly: It is only as to statements made. The Court: I am not paying any attention to them. Mr. Connelly: Then that is all." Whereupon the witness was withdrawn. It cannot be determined from the question propounded to the witness what the nature of the testimony was that counsel expected to elicit from the witness, or whether, whatever the nature of the testimony thus proposed to be introduced, it was material to any issue in the case. Even counsel's explanation to the trial court of what the testimony would be afforded no enlightenment upon that proposition. He merely stated that it related "only as to statements made," of what character or by whom made was not by him made to appear. The trial judge's remarks regarding the proffered testimony would imply that he was familiar with the character thereof, and, assuming that he was, it may also be assumed, from the record as it stands with regard to the matter, that he considered it as not being material to any issue in the case. But, however that may be, it is clear that we cannot, from the record, say whether it would or would not be material. The counsel should have propounded a question to the witness in such form as that it would have indicated the nature of the testimony which he expected and desired the witness to give, in which case an exception to a ruling excluding the testimony, if it thus was shown to be material to any of the issues of the case, would have justified and facilitated a review of the ruling by this court. "Where the question does not show on its face whether or not it is material, the questioner, in order to reserve an exception, must formally reframe the question so that its materiality is apparent." (People v. Singh, 182 Cal. 457, 482 [188 P. 987, 998]; Snowball v. Snowball, 164 Cal. 476 [129 P. 784]; 9 Ency. of Evidence, 170; People v. Bryant, post, p. 375 [246 P. 815].)

The petition for a rehearing must be denied, and it is so ordered.

Finch, P.J., and Plummer, J., concurred.