In this action three plaintiffs seek damages for personal injuries resulting from a freeway accident in which their car, which had been stopped by traffic conditions, was "rear-ended" by defendant's car. The case was tried to a jury and a defense verdict resulted.
As a basis for appeal plaintiffs complain of an incident at the trial which occurred at 18 minutes before the 12 o'clock recess when counsel for the defense approached the bench and out of the hearing of the jury moved that the defense be given an opportunity to have its heart specialist examine one of the plaintiffs, Joseph H. Lumer, during the noon recess. This motion was opposed by counsel for plaintiffs upon the basis that the motion was not timely made; the defense had known through discovery proceedings that this plaintiff had had a preexisting heart condition and that the testimony given concerning this condition could not have come to defense counsel unexpectedly or through surprise. Plaintiffs' counsel further argued that if such permission were to be granted by the court it would mean that plaintiffs would then be put in the position of having to ask for a recess and an opportunity to have their own expert reexamine Mr. Lumer.
The trial judge indicated that since plaintiffs' counsel objected to the examination if a specialist called by plaintiffs was to give testimony based only on his review of the hospital records and cardiograms in evidence "the jury will be entitled to know he has not examined the patient, and that the patient has refused to be examined." Counsel for plaintiffs indicated he thought "that would prejudice the jury against us." The
After plaintiffs had rested, the defense called plaintiffs' attorney to the stand as a defense witness and asked him, "Mr. Brownfield, it is a fact that shortly before noon today you refused to agree to allow Mr. Joseph Lumer to be examined by Dr. La Joie; is that not correct?" Counsel replied, "This is not true. This matter was heard before the judge and the judge decided that this request was an improper one." The examination continued:
"Q. Did you object to my request?
"THE COURT: Just a moment, please. You may answer the question yes or no.
"MR. BROWNFIELD [counsel for plaintiffs]: Your Honor, I feel that this question is highly improper.
"THE COURT: Are you objecting to it?
"MR. BROWNFIELD: I object to the question.
"THE COURT: The objection is sustained. The matter is of no concern to the jury at this time.
"MR. GILBERT [counsel for defendant]: That is all."
Plaintiffs assert that in the incident related above defense counsel engaged in unfair tactics and prejudicial misconduct; that it improperly brought to the attention of the jury evidence which was otherwise inadmissible; it cast undue and unwarranted reflection upon the conduct of plaintiffs' counsel and thus upon each of the plaintiffs; and it effectively denied plaintiffs a fair trial and denied plaintiffs due process of law. Plaintiffs further assert that the particular incident is unique and that they can present their arguments only by analogy.
Plaintiffs liken the questions asked to those in Arnold v. California Portland Cement Co., 41 Cal.App. 420 [183 P. 171], and Peacock v. Levy, 114 Cal.App. 246 [299 P. 790], where the misconduct consisted of plaintiffs' counsel asking questions bringing the matter of insurance to the attention of the jury. Plaintiffs acknowledge the existence of the general rule that the mere asking of an improper question is not ground for reversal (Fleming v. Flick, 140 Cal.App. 14, 35 [35 P.2d 210]) particularly where it is done in good faith. They assert, however, that if an improper question is flagrant and prejudicial, the misconduct of counsel may be such that its effect on the jury cannot be overcome and it is not cured by an admonition to the jury by the judge. In support of this
In the case at bar no assignment of misconduct was made at the trial and none was made on motion for new trial.
In Stevenson v. Link, supra, 128 Cal.App.2d 564, there had been an express ruling by the judge that the matter sought to be introduced was inadmissible. Quite the contrary appears in the case at bar. It should be noted from the discussion in chambers, previously referred to, that the judge indicated "the jury will be entitled to know he has not examined the patient, and that the patient has refused to be examined." From this it was reasonable for defense counsel to anticipate that the court would permit him to show that the patient had refused to be examined. This negates any inference that the situation was one similar to that presented in Stevenson v. Link, supra, where counsel had been previously warned that the evidence which he sought to bring before the jury was inadmissible. It should be noted also that immediately upon the court's sustaining the objection to the question contrary
We next consider the propriety of raising the issue during trial of whether or not a party has refused to submit to a physical examination.
The judgment is affirmed.
Jefferson, J., and Balthis, J., concurred.
Appellants' petition for a hearing by the Supreme Court was denied July 3, 1962.