King v. Kaplan

211 P.2d 578, 94 Cal. App. 2d 697, 1949 Cal. App. LEXIS 1591

• Court: California Court of Appeal
• Decided: November 18, 1949
• Docket: Civ. 17158
• Status: Published

Opinions

McCOMB, J.

From a judgment in favor of defendant after trial before a jury in an action to recover damages for personal injuries received as a result of the alleged wilful misconduct of defendant, plaintiff appeals.

Facts : Plaintiff, a stenographer employed in Beverly Hills, occasionally accepted an invitation to ride home from work with defendant who was employed in the same building. She paid no consideration and was a guest. On November 6, 1947, while plaintiff was riding with defendant in his car he crashed into the rear of a parked automobile as a result of which plaintiff suffered severe personal injuries.

The evidence disclosed that defendant was a diabetic who on that day had not maintained his dietary schedule and was hurrying home to his supper; that a diabetic who took insulin, as defendant did, when not maintaining the proper dietary schedule suffered an effect similar to intoxication whereby the patient loses his equilibrium and sometimes blacks out completely.

Plaintiff’s action was predicated upon the theory that defendant knew he was off his schedule; that he knew he was apt to lose his equilibrium and might even black out completely; and that therefore, in undertaking to drive plaintiff home and having an accident, he was guilty of wilful misconduct. At the time plaintiff’s counsel was arguing to the jury he said, “The testimony shows that the defendant was a diabetic and a severe case.” Upon objection of counsel for defendant, the trial court stated, “Objection sustained. The jury is admonished to disregard that remark by counsel for plaintiff concerning the severity of defendant’s diabetes. There lias been no testimony as to the severity of defendant’s diabetes. ’ ’

Question : Was it prejudicially erroneous for the trial court to refuse to permit plaintiff’s counsel to argue to the jury that defendant was a diabetic and to instruct them that there was no testimony as to the severity of defendant’s diabetes?

This question must be answered in the affirmative. There was evidence to support plaintiff’s contention that defendant was a diabetic. Police Officer W. L. Ritchey testified that when he arrived at the scene of the accident he questioned defendant who stated that he was a diabetic who had gotten off schedule and was hurrying home to supper. Later defendant stated to him that he had missed his lunch. There was likewise testimony that defendant was taking insulin and 50 units of protamin zinc each day.

Dr. Helen Martin was qualified as an expert on diabetes and testified that insulin shock could be compared in its effect to intoxication, and that a patient loses his equilibrium and sometimes blacks out completely. She further testified that severe diabetics took both insulin and 50 units of protamin zinc each day, and that in her opinion defendant was a severe diabetic.

Clearly the foregoing evidence would have supported a finding that defendant was a severe diabetic and the trial court’s ruling was erroneous. It is obvious that such ruling was prejudicial in view of the fact that the principal issue plaintiff was urging and upon which she was predicating her case was that defendant was guilty of wilful misconduct; that he was a diabetic and, knowing he was such and in view of the fact that he knew he had not eaten and might become unconscious, was wilfully negligent in permitting her to ride with him in his automobile.

Counsel is entitled to argue every material issue in a case upon which evidence has been introduced or when a legitimate inference supporting a particular issue may be drawn from testimony received in evidence.

In view of our conclusions it is unnecessary to discuss other questions argued by counsel.

The judgment is reversed.