Smellie v. Southern Pacific Co. ( 1931 )

I concur in the judgment of reversal herein upon the ground that the trial court in directing a verdict for the defendant did so upon a state of the evidence which was insufficient to justify such order, if, as the trial court instructed the jury, the testimony of the witness Ireland was to be disregarded by it in returning such directed verdict. In stating the evidence which furnished the ground upon which the order for a directed verdict was based, the trial court expressly stated to the jury that it should "disregard entirely the question of what Ireland may have said to Smellie". The error which the trial court thus committed in directing the jury to disregard Ireland's testimony in returning their directed verdict could not be cured by the succeeding error which the jury committed in following such instruction and in returning a verdict upon other evidence which was insufficient to establish the contributory negligence of the deceased as a matter of law.

I dissent, however, from that portion of the main opinion holding that the presumption that the deceased took ordinary care of his own concerns persisted so far as to constitute a conflict in evidence, notwithstanding the direct testimony of the witness Ireland to a fact which controverted that presumption. It seems to me indisputable as a matter of law, supported by innumerable authorities, that if the witness Ireland had been called by the plaintiffs on their own account and as their own witness, and not under the provisions of section 2055 of the Code of Civil Procedure; and if as such witness he had given the testimony which he did give with respect to the words and acts of the deceased immediately prior to the casualty in which he lost his life, the presumption above referred to would have disappeared from the case. It also seems to me that the same result would follow upon the introduction of the same testimony by either or any of the parties to the action if, at the close of the case, such evidence stood in the record unrebutted and uncontradicted and if the witness giving the same had been unimpeached. This conclusion, as I shall show, is supported by a long course of well-reasoned decisions which ought not to be, as it is in the main opinion, disregarded and overthrown. It is, however, claimed in the main opinion that the foregoing rule, otherwise well founded, does not apply to cases wherein the plaintiff calls a witness under the provisions of section 2055 of the Code of Civil Procedure, and wherein such witness when so called testifies to facts which, had he been called and testified on behalf of the plaintiffs otherwise than under the terms of said section, would have sufficed to dispel the presumption. The basis of this claim as set forth in the main opinion is furnished by the clause in section 2055 of the Code of Civil Procedure, which states that, "The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination or by other evidence." The parties to a civil action are bound by the direct evidence of the witnesses therein, as to which they offer no impeachment of such witnesses, and the testimony of which they neither seek to rebut nor controvert. This must be so; otherwise there could never be any such thing as a directed verdict in favor of either party, or a nonsuit against the plaintiff in any case in respect to which a disputable presumption was claimed to exist in favor of or against either or any of the parties thereto. Section 1844 of the Code of Civil Procedure, states: "The testimony of one witness who is entitled to full credit is sufficient for proof of any fact except perjury or treason." Section 1959 of the Code of Civil Procedure, defines a presumption to be a deduction which the law expressly directs to be made from particular facts; and while section 1957 classes presumptions as a form of indirect evidence, section 1961 declares that "A presumption, unless declared by law to be conclusive, may be controverted by other evidence, direct or indirect; but unless so controverted the jury are bound to find according to the presumption." Section 1962 defines conclusive presumptions, while section 1963 deals with all other presumptions, and in so doing states: "All other presumptions are satisfactory [that is to say, satisfactory evidence] ifuncontradicted. They are denominated disputable presumptions and may be controverted by other evidence." The term "satisfactory evidence" is defined to be that evidence which produces conviction in an unprejudiced mind. (6 Words and Phrases, 3d series, p. 953.) The term "controvert" and "contradict" as used in the foregoing sections of the code are obviously used synonymously therein and the word "contradict" is also used with like meaning in sections 2049 and 2051 of said code. These words in their ordinary and usual sense carry the meaning of "oppose", "dispute", "take issue with", "assert the contrary of" (Webster's), or, as defined in 2 Words and Phrases,supra, pages 457, 482, mean "to deny or attempt to dispute or confuse". We are thus brought to the conclusion that a disputable presumption under the express terms of sections 1961 and 1963 of the Code of Civil Procedure, ceases to be satisfactory evidence, and as such no longer of binding effect in the case, when "controverted", "contradicted", "disputed", "opposed", "denied," or "taken issue with" by the production in the case of other evidence, direct or indirect. This means nothing more nor less than that when such evidence as to the fact in issue appears and is presented, the presumption is dispelled and disappears. Such was the rule laid down by Chief Justice Field in the early case of Nieto v. Carpenter, 21 Cal. 455, 487. Such was the conclusion reached by this court in Savings etc. Soc. v. Burnett, 106 Cal. 514, 530 [39 P. 922, 925], wherein, with reference to such presumptions, it was stated: "They are allowed to stand not against the facts they represent, but in lieu of them. The facts being proven, no conflict arises, the presumption is simply overcome and dispelled." Such was the decision of this court in Larrabee v. Western Pac. Ry. Co., 173 Cal. 743, 746 [161 P. 750, 751], wherein this court said: "But touching the presumption that the deceased exercised ordinary care, it is to be noted that that presumption is given weight only in the absence of evidence on the subject of the deceased's conduct. It has been declared to be an artificial presumption of so weak a character that it is not to be allowed to have the effect of evidence before the jury where the uncontradicted evidence of the circumstances attending the accident overthrows it." Such was the ruling of this court in the very recent case of Koster v.Southern Pac. Co., 207 Cal. 753 [279 P. 788]. Such, also, was the ruling of this court in the instant case and in the decision therein, which I then concurred in, and which I still maintain should constitute the law of this case.

With this background of sound precedent I pass without further comment those cases beginning with People v. Milner, 122 Cal. 171 [54 P. 833], and followed by the further line of cases quoted with approval in the main opinion in which this court has in the past been led astray from the foregoing salutary doctrine, and from the heresies of which we should now return to the orthodoxy of the long line of decisions only a few of which I have above referred to.

I conclude that a consideration of the proper meaning to be given to the terms of section 2055 of the Code of Civil Procedure, as that meaning was rightly interpreted in the case ofFigari v. Olcese, 184 Cal. 775 [15 A.L.R. 192, 195 P. 425, 428], wherein the defendant had been called as a witness for plaintiff under the provisions of said section of the code, and wherein this court said: "Section 2055 of the Code of Civil Procedure provides that a party calling and examining as a witness an adverse party `shall not be bound by his testimony', and that the testimony of such adverse witness `may be rebutted by the party calling him', is that this provision does not mean that such testimony may not be given its proper weight, but merely, as it declares, that the party calling such witness shall not be concluded from rebutting his testimony or from impeaching the witness." In the instant case the plaintiff did not attempt to do either of these things, with the result that the testimony of Ireland stood uncontradicted and also unimpeached by the only method provided for such impeachment of a witness under sections 2049 and 2051 of the Code of Civil Procedure. This being so, the presumption relied upon should be held to have been "controverted" and "contradicted" by the direct evidence of Ireland, and should therefore he held to have been dispelled.

The former decision of this court, rendered by Mr. Justice Seawell in department, should, in my opinion, be adopted and should stand as the main opinion of this court in its final decision of this cause.