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Court of Appeal, Second District, Division 5, California.

Delma GRUDT, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Charles D. Kilgo, and William L. Rinehart, Defendants and Respondents.

Civ. 32634.

Decided: November 06, 1969

Belli, Ashe, Ellison, Choulos & Lieff, San Francisco, Irmas & Rutter, Beverly Hills, Irmas, Simke, Rutter, Green, Lasher & Hecht, Beverly Hills, Melvin M. Belli, San Francisco, S. M. Irmas, Jr., Beverly Hills, and Harvey A. Schneider, Pasadena, for plaintiff and appellant. Roger Arnebergh, City Atty., John A. Daley, Asst. City Atty., and Arthur Y. Honda, Deputy City Atty., for defendants and respondents.

For Opinion on Hearing, see 86 Cal.Rptr. 465, 468 P.2d 825.

Plaintiff Delma Grudt appeals from the judgment entered upon a defense verdict in this action for the wrongful death of her late husband, John Grudt, which she instituted against the individual defendants, Charles D. Kilgo and William L. Rinehart, police officers, and their employer, the defendant of City of Los Angeles, a municipal corporation.

She has set forth six “specifications of errors,” but only the following are pivotal to the disposition of this appeal:  (1) prejudicial error in striking from plaintiff's first amended complaint her second cause of action premised upon the theory that defendant City of Los Angeles (hereinafter “City”) was itself against negligent in retaining the defendant officers in its employ;  (2) reversible error in (a) striking the issue of negligence grounded on the acts and omissions of the defendant police officers, Charles D. Kilgo (hereinafter “Kilgo”) and William L. Rinehart (hereinafter “Rinehart”), and (b) striking from the evidence the police department tactical manual on “Use of Firearms” and all evidence pertaining thereto;  and (3) prejudicial errors in permitting defendants to impeach plaintiff's witnesses on the basis of misdemeanor convictions, arrests, and statements of hostility toward the police on the theory that such evidence was probative of bias and prejudice of those witnesses against the parties defendant.

We have concluded that the specifications or assignment of error (1) lacks merit, (2) is well taken, and that (3) is meritorious in part only, for the reasons we shall shortly explain.


Plaintiff filed her verified complaint on September 7, 1965, alleging that defendants Kilgo and Rinehart had intentionally shot and killed her late husband, John Grudt, (hereinafter “Grudt”), on February 24, 1965, without just cause or provocation while they were employed by defendant City and acting in the course and scope of their employment.   She averred that she had presented her claim for damages to the City on May 21, 1965, and that the City had rejected it in its entirety on June 15, 1965.

The City and Kilgo filed their respective answers to this original complaint on October 6, 1965.   Rinehart filed his answer thereto on October 18, 1965.

On or about December 6, 1965, a counsel for plaintiff took the depositions of defendants Kilgo and Rinehart.   On July 5, 1966, the trial court granted plaintiff's motion for leave to file their first amended complaint which added a new second cause of action premised upon the defendant City itself being negligent in retaining in its employment the two defendant officers who were prone to be excitable and “trigger happy” and which characteristics were known to the City.1  (Fernelius v. Pierce (1943) 22 Cal.2d 226, 138 P.2d 12.)

Defendant City filed its answer to this first amended complaint on July 20, 1966, denying the essential allegations of this second cause of action and setting up numerous affirmative defenses, including one reading:  “That the plaintiff amended her complaint to insert said Second Count or Second Cause of Action on July 5, 1966, therefore, the statute of limitations as contained in Section 945.6 of the Government Code as well as Section 340 of the Code of Civil Procedure bars said cause of action.”   The pretrial order preserved the issues raised by this amendment as being among those to be resolved at trial.

After the case was transferred to a trial department on April 5, 1967, defendant City moved to strike and dismiss this second cause of action and all matters in the pretrial order relative thereto.   The motion was argued and granted.   Plaintiff later moved to set aside the foregoing order, but it was denied after the court had heard further argument.

 Plaintiff claims that this action of the trial court constituted prejudicial error.   In support of her position, she cites Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 15 Cal.Rptr. 817, 364 P.2d 681, and numerous other cases, which we fell are distinguishable upon their facts.   We hold that there was no error.   This second cause of action was not a mere change in the theory of recovery upon the same basic facts as alleged in the original complaint.   The Fernelius case itself recognizes that the theory of recovery is premised upon “a basically different factual pattern.”  (22 Cal.2d 226, p. 233, 138 P.2d 12.)   The neglect sought to be charged here is not that of either Kilgo or Rinehart, but rather the neglect of their superiors at unknown times and places different from the conduct of Kilgo and Rinehart on the night of February 24, 1965.   True, the second cause of action did not accrue until the damage occurred (Oakes & McCarthy Co. (1968) 267 Cal.App.2d 231, 254, 73 Cal.Rptr. 127), but only in this area limited to damage do the facts of this second cause of action coincide or overlap with the facts pleaded in the original complaint.   At best the impingement is tangential only.   In the cases cited by plaintiff,2 the acts or omissions alleged to be negligent and the tortfeasors or wrongdoers remain the same in the amended pleading.   Since the plaintiff tried to add an entirely new cause of action, even under the Austin definition, more than six months after plaintiff's counsel acquired the requisite knowledge from the taking of depositions on December 6, 1965, and after more than six months had elapsed from the date plaintiff was presumably notified of the rejection of her claim, the applicable statute of limitations constituted a bar as a matter of law.  (Gov.Code, § 945.6;  see Denham v. County of Los Angeles (1968) 259 Cal.App.2d 860, 863, 66 Cal.Rptr. 922.)   Plaintiff moreover had had notice of the statute of limitations defense for almost nine months when the second cause of action was stricken.   Plaintiff likewise made no attempt to start the six months' period running anew by filing an amended claim against the City.


After presentation of the plaintiff's case in chief and after the defendants had put on six witnesses, whose testimony covers around 246 pages of the reporter's transcript, defense counsel made a motion to exclude from the issue to be given to the jury the question of defendants' negligence based upon the acts and omissions of Kilgo and Rinehart on the night of February 24, 1965, and to strike the police tactical manual on the use of firearms from the evidence.   Both motions were granted over the strenuous objections of the plaintiff.   Plaintiff's motion for a mistrial premised upon the trial judge's granting of these two motions was denied.   The judge later instructed the jury that the police tactical manual had been stricken from the evidence and that the jurors were to completely disregard it.   Plaintiff contends that the foregoing action of the trial judge constituted reversible error.   We agree.

Whether the acts of omissions of Kilgo and Rinehart constituted negligence and the liability, if any, flowing therefrom were among the issues to be tried by virtue of the pretrial order which raised these issues (Rule 216, Cal.Rules of Court;  K. King and G. Shuler Corp. v. King (1968) 259 Cal.App.2d 383, 394, 229 Cal.App.2d 634, 636, 40 Cal.Rptr. 524, even though this theory had not been pleaded (Aero Bolt & Screw Co. v. Iaia (1960) 180 Cal.App.2d 728, 743, 5 Cal.Rptr. 53;  Wiese v. Rainville (1959) 173 Cal.App.2d 496, 508–509, 343 P.2d 643).   Counsel and the judge had agreed that this issue of negligence if any, flowing from the acts and omissions of Kilgo and Rinehart remained in the case notwithstanding the judge's striking of the complaint based upon the alleged negligence of City officials and employees other than Kilgo and Rinehart.   In fact the judge told the jury at the outset of the trial that one of the issues in the case was:  “Was the shooting of the decedent by Officers Kilgo and Reinhart [sic] negligent?”

 The action of the trial judge in taking away this particular negligence issue from the jury appears to have been premised upon the theory that the officers had admitted that they shot with intent to kill or to harm Grudt, and since intentional and negligent theories of recovery upon the same set of facts were mutually exclusive, negligence was no longer in issue.   And since negligence was removed, the police tactical manual became irrelevant.2  However, a plaintiff is entitled to go to the jury on both intentional and negligent tort theories even though they be inconsistent.  (Figlietti v. Frick (1928) 203 Cal. 246, 249, 263 P. 534;  Wells v. Brown (1950) 97 Cal.App.2d 361, 217 P.2d 995;  2 Witkin, Cal.Procedure (1954) p. 1163.)   The action of the trial court was tantamount to granting a belated motion for nonsuit (cf. Hortsman v. Krumgold (1942) 55 Cal.App.2d 296, 300, 130 P.2d 721) deviating from the customary practice of motions for nonsuit being made right after plaintiff rests his case in chief and motions for directed verdict upon the completion of the presentation of evidence in both sides 4 (Cal.Civil Procedure During Trial [Cont.Ed.Bar, 1960] § 15.25, p. 343).

Because of the unusual procedural posture of plaintiff's case and the juncture in the trial proceedings at which the negligence issue in question was removed from the case, plaintiff's contention of error is in effect appeal from a nonsuit.   Consequently, instead of the usual rule governing the statement of facts upon appeal, the facts in this case, insofar as negligence is concerned, must be stated in the light most favorable to the plaintiff (Meyer v. Blackman (1963) 59 Cal.2d 668, 671, 31 Cal.Rptr. 36, 381 P.2d 916;  Walnut Creek Aggregates Co. v. Testing Engineers, Inc. (1967) 248 Cal.App.2d 690, 692, 56 Cal.Rptr. 700;  Paul v. Wadler's Cash & Carry, Inc. (1964) 230 Cal.App.2d 351, 353, 41 Cal.Rptr. 18), and the question whether reversible error occurred is to be determined by the rules of law applicable to appeals from judgments of nonsuit.

At the time of the negligence question was taken from the jury, the facts in the light of the foregoing rules were as follows:  Officer George J. Raines and his partner, Officer Jerry R. Chavous, were on duty as police officers of the City on February 24, 1965.   They were both attired in civilian dress which would not distinguish them as police officers.   They were riding a felony car, i.e., an unmarked 1960 Plymouth, four-door, blue vehicle, without siren or red light.

About 12:15 a.m., they observed Grudt's vehicle, which was northbound on Western, go through a cross-walk at 38th Place almost running down two female persons, who were crossing Western Avenue from west to east and who had reached a point about two feet east of the double line.   Grudt was traveling 35 to 40 miles per hour in a 35 mile-per-hour zone.   Because this is a high crime area, Officer Raines' primary purpose was to stop Grudt for investigation;  he did not intend to stop Grudt for traffic violations.

The officers caught up with Grudt's moving car so as to position Officer Chavous to the left of and just to the rear of Grudt.   While the cars continued to move side by side, Officer Chavous placed his badge at his window and yelled, ‘'Police officer.   Pull over.”   Grudt kept driving, although he did look once at the officers over his left shoulder.   Again, the officers pulled alongside Grudt's car, and Officer Chavous again yelled, “Police officer.   Pull over,” but Grudt did not stop.   He turned sharply onto 36th Place to the right, going east on 36th Place and then returning back to Western to elude the officers.   Despite Officer Chavous placing “the beam of his spotlight on his badge” and yelling, “Police officer.   Pull over,” and Officer Raines blowing his horn and flashing his headlights from low beam to high beam and back, Grudt did not stop.   Officer Raines did see Grudt reach down underneath his seat.   After Grudt's death, a wallet containing “a few less than five one-dollar bills” was found underneath the seat.   No weapons, drugs, or marijuana were found in Grudt's car.   Grudt did not drink and had to previous criminal record.

Somewhere between 36th Place and Jefferson, Officer Raines broadcast over his radio:  “3 Frank 33 is requesting a black and white car to assist us in stopping a vehicle for the driver won't stop.”   He “felt that a black and white car would have a better chance of stopping [Grudt] with the red lights and siren and the better motor equipment and be safer in the pursuit than a plain car, than an unmarked vehicle.”   The broadcast was made about seven times.   However, at no time was any reason for the pursuit of the Grudt car given over the air other than the fact that it would not stop.   Officer Raines noticed a black-and-white police vehicle, with red light and siren, directly behind him when he crossed Adams.   He also saw two police vehicles (four headlights) with red lights coming towards Grudt's vehicle from the north before Grudt's car came to a rest.

Grudt was shot around 12:20 a.m. by Kilgo and Rinehart.   He died within seconds thereafter while still seated behind the driver's wheel of his vehicle.   Grudt was plaintiff's husband, about 55 years of age, in good health except for being “just a little hard of hearing”, and by vocation a carpenter earning $9,000 per annum salary.

Kilgo and Rinehart, both police officers of the City, were on duty at the time.   They were attired in civilian clothes, riding an unmarked 1961 pink-beige Dodge, four-door sedan, with no indicia that it was a police car.   Shortly after midnight, February 24, 1965, they were northbound on Western nearing Venice Boulevard when they picked up a police broadcast on their car radio that “3 Frank 33” (which in them meant a felony car out of University Station) was pursuing a 1959 green-and-white Ford, license No. HHG–079 heading north on Western, first in the vicinity of Jefferson and later near Adams.

They, thereupon, turned their vehicle around, headed south on Western, crossing over the Santa Monica Freeway.   Rinehart was driving.   He stopped their vehicle immediately south of the divider, separating north-south traffic on Western, just to the south of 22nd Street, which runs into Western from the east forming a “T” intersection with Western.   Rinehart parked his car at an angle so as to block the flow of traffic coming north on Western in the No. 1 lane (one closest to double line or divider).   He also wanted to get into position where he could get on to 22nd Street or the eastbound on-ramp of the Santa Monica Freeway in the event the pursuit should pass his car.

This eastbound on-ramp to the Santa Monica Freeway is located about three car lengths to the north of the north curb of 22nd Street.   A traffic signal facing traffic coming north from the south on Western is located on the northeast corner formed by Western and the on-ramp.   An east-west marked pedestrian cross-walk runs across Western at the southerly line of the on-ramp.   There is no traffic signal at the 22nd Street intersection, nor is there any marked pedestrian cross-walk at that point.

Kilgo testified that as soon as their car came to rest, Rinehart stepped out of the car and waved a red spotlight, which was attached to the dashboard with a six to eight foot length of cord, towards oncoming traffic approaching from the south (i.e., from the direction of Adams).   Kilgo observed the Grudt car pass him preceded by another car, which he thought was also a Ford automobile.   The two vehicles stopped at the southerly edge of the intersection of Western and 22nd Street;  Grudt's car being in the No. 2 lane, and partially blocked by the other car which had stopped just ahead of Grudt.   This car disappeared from the area before the shooting occurred.   Kilgo thought it might have turned east on 22nd Street, but he was not sure as his attention was focused on the Grudt vehicle.

He further testified that he got out of his car, took the shotgun, loaded it as he crossed in front of the police vehicle, and approached Grudt's vehicle carrying the weapon at port-arms.   Grudt was looking straight ahead.   His left window and windwing were closed.   Kilgo tapped on the window of Grudt's car pretty hard with the muzzle of the shotgun to attract Grudt's attention.   Kilgo states that Grudt turned his head to his left, and looked at Kilgo;  “[h]e was surprised and appeared to be frozen to the wheel * * * he turned his head to the left and stared directly at me and did not move his hands from that wheel.”   Kilgo felt that going up to Grudt's car, tapping on his window with a shotgun while he was dressed in civilian clothes startled him.   He further testified that since Grudt made no aggressive movement and did not appear to be arming himself, Kilgo lifted his shotgun in the air, and tried to open the door with his left hand.   Grudt, however, turned his wheels towards the left and started accelerating his car.   The left rear fender of Grudt's car brushed him and he sensed that Grudt was heading towards Rinehart who was directly in front of the Grudt car.   He at no time felt himself to be in danger, but he fired to protect his partner's life.   Rinehart testified that that he shot because he was in fear of his life.   Rinehart also testified that he was four to five feet in front of Grudt's vehicle when it started up, that Grudt's vehicle struck him some place between his left knee and thigh, that he jumped to his right and fired four rounds from his revolver at the Grudt car, a split second after the shotgun went off.   The bumper of Grudt's car, however, was lower than the height of Rinehart's knee.   Both officers testified that they shot either to kill or to hit Grudt.   Rinehart testified that he “was in an off balance position” when he fired all four shots.   However, the first two bullets fired by Rinehart had approximately the same angle of entry.   Defendants' expert testified that in his opinion the revolver shots were fired from a normal firing position, and not in an upward direction.   Three bullets from the revolver went through the left front window (next to the driver's seat) of Grudt's car.   The fourth grazed the metal top of the car above the window.   The shotgun shot pierced the left rear side window.

It was undisputed that Grudt's car was at rest after the shooting at the south side of the marked pedestrian crosswalk south of the freeway eastbound on-ramp, and about six feet from the east curb.   The wheels were straight and pointed north.

The police tactical manual pertaining to the use of firearms was in evidence until stricken after the motion to remove the negligence issue from the case was granted.   The pertinent portions thereof were:

“100. CONTENTS OF CHAPTER.   This chapter sets forth Department policy regarding the use of firearms in police actions.

“105. LEGAL LIMITATIONS.   Police officers may use firearms only under certain restricted, justifiable circumstances.  Penal Code, Sections 196 and 197 delineate the California law of justifiable homicide.  [¶] It is the law that a police officer must not discharge his firearm except in limited situations.   No officer has the right to extend this power, but must decide his action in light of the circumstances confronting him within the limitations of his authority.

“110. SELF DEFENSE.   An officer is entitled to use deadly force when it is necessary to save himself, a citizen, a brother officer, or a prisoner from death or grave bodily harm.   He is not permitted to use deadly force to protect himself from assaults which are not likely to have serious results.

“115. MISDEMEANANTS.   An officer may not use deadly force to effect the arrest or prevent the escape of a person who has committed a misdemeanor.   This restriction does not infringe upon an officer's right to self defense should he be attacked.

“120. SUSPECTED FELONY OFFENDERS.   An officer should not shoot a person who is called upon to halt upon mere suspicion and, who, simply runs away to avoid arrest.

“125. KNOWN FELONY OFFENDERS.   The firearm must not be discharged at persons who are running away to escape arrest except under compelling circumstances in felony cases.   For example, if the officer actually sees a person commit a serious felony such as murder, rape, assault with a deadly weapon, or robbery, he may shoot to prevent escape if the offender cannot be apprehended by any other reasonable means.”

A civilian witness, Edward A. Plankers, testified contradicting Kilgo's and Rinehart's version.   He testified that on the night in question, he was driving a 1954 Buick four-door automobile.   He was a meatcutter working for Ralph's Grocery Market at Santa Barbara and Western, had gotten off work at midnight, and was driving north on Western towards the on-ramp to the Hollywood Freeway going north (beyond Santa Monica Boulevard 5 ) to return to his home in San Fernando Valley.   He was in the No. 1 lane northbound and stopped for a red traffic light at the on-ramp to the eastbound Santa Monica Freeway.   Grudt's car came to a stop abreast of his car and in the No. 2 lane to his right.   Grudt's stop was a normal stop.   He then saw a person with a “sawed-off” shotgun coming towards them as he waited for the traffic signal to turn green.   He didn't know whether the person was a plainclothes officer or a felon;  he “didn't know what to think.”   He started with the light change and had just reached the overpass over the freeway when he heard a shot.   He had pulled out slowly and when Grudt's car did not move, he had changed to the No. 2 lane and proceeded north on Western.   He had looked back in this rearview mirror.   Grudt's car did not move before he heard the shotgun blast.   He was emphatic that neither he nor Grudt had stopped opposite the Richfield gas station at 22nd and Western, as testified by Kilgo and other police officers.   He did not notice any red light such as Kilgo described Rinehart as waiving, nor did he hear any horns or notice any car blinking its headlights from low to high beam, etc., as he came north on Western from Santa Barbara to the intersection with the Santa Monica Freeway eastbound on-ramp.

Dr. Romero J. LaJoie, an internist specializing in cardiology, testified for plaintiff.   Based upon the autopsy report, he opined that death was caused by the shotgun blast, that Grudt suffered an immediate paralysis, and that he could not thereafter have engaged in any useful activity.

William W. Harper, a consulting physicist, also testified for the plaintiff.   In his opinion, the car may or may not have been in motion when the guns were fired into Grudt's car.   The steering wheel would have had to have been rotated 970 degrees (two complete revolutions, plus 250 degrees) to turn the car in the direction indicated by the officers' testimony.   To turn the wheel 970 degrees, it took him seven changes of hand positions on the steering wheel and about five seconds to do it rapidly.   In his opinion, the car would not have come to a stop parallel to the easterly curb without human intervention if the wheels had been turned to the left.   A sudden acceleration, by itself, of the car would not cause a change of direction.

Kilgo had testified that the Grudt car left no skid marks and made no squeal of the tires when it started up.   Up to the time he fired he at no time knew of anything Grudt had done other than to fail to stop for a felony car.   The radio calls did not state whether the pursuit was for a misdemeanor or a felony violation.   Inquiry could not be made from his end in a pursuit situation.

At the time Kilgo fired his shotgun and Rinehart his revolver, there were in the immediate vicinity, Officers Chavous, Raines, Cunningham, Kramer, Crosswaithe, Thomas, Moody, and Furay.   Furay, a uniformed officer, was running toward the Grudt vehicle at the time.   Kilgo saw black-and-white police vehicles with red lights blocking the northbound No. 1 and No. 2 lanes to the north of Grudt's vehicle.   He also saw another black-and-white police vehicle approaching about 75–100 feet south of Raines' unmarked vehicle.   He had remarked to his partner before getting out of his vehicle that perhaps it might be more advisable to let a black-and-white police vehicle take over the pursuit as it would be more easily identified by the red light and siren on its roof and because it would be equipped with a faster V–8 engine.

 Witness Plankers was quite severely impeached as to his credibility by several defense witnesses prior to the order removing the negligence issue from the jury's consideration.   However, his credibility as well as that of Kilgo and Rinehart were questions for the jury to determine.   Even from the evidence outlined above 6 Grudt's failure to stop for “3 Frank 33” could be explained that being a little hard of hearing and hailed to stop by two males in civilian clothes riding an ordinary civilian type vehicle in a high crime rate area, he thought he was about to be robbed, as evidenced by his placing his wallet underneath the driver's seat where it was found after the shooting.   It could also be inferred that Grudt did not stop south of 22nd Street, but that he came to a stop for a red light at the marked pedestrian cross-walk just south of the eastbound on-ramp to the Santa Monica Freeway and that he was shot before his vehicle had moved.   Negligence could be found in Kilgo and Rinehart, who were in plainclothes, not permitting police officers in uniform to make the arrest of Grudt, instead of undertaking that task themselves.   Whether striking on Grudt's window with the muzzle of the shotgun and then pointing it at Grudt to attract his attention was a reasonable act was also a question of fact.   Negligence could also be found in their estimate of the situation as calling for a shooting to kill when Grudt was pretty well hemmed in by black-and-white police vehicles to his front and to his rear.   Evidence that the officers intended to commit an intentional harm, does not by itself rule out the possibility of negligence liability.  (Smith v. Johnson (1957) 152 Cal.App.2d 20, 23, 313 P.2d 7.)

 Upon an appeal from a nonsuit, the appellate court must view the evidence in the light most favorable to the appellant, disregard all inconsistencies, and draw only those inferences from the evidence which can be reasonably drawn in favor of the appellant.  (Sunset Milling & Grain Co. v. Anderson (1952) 39 Cal.2d 773, 779, 249 F.2d 24;  Coates v. Chinn (1958) 51 Cal.2d 304, 306–307, 332 P.2d 289;  Harte v. United Benefit Life Insurance Co. (1967) 66 Cal.2d 148, 56 Cal.Rptr. 889, 424 P.2d 329.)   Where the evidence presents a reasonable doubt as to due care, the issue should be resolved as question of fact, rather than of law.  (Grimes v. Southern Pacific Co. (1966) 243 Cal.App.2d 304, 315, 52 Cal.Rptr. 60.)  “We do not have a right to decide who should prevail on the facts of the case, but only whether the jury would be entitled to find from the evidence that the [plaintiff] could recover, even though there is opposing evidence which, in the view of an appellate judge, might preponderate against the [plaintiff].”  (Chavez v. County of Merced (1964) 229 Cal.App.2d 387, 389, 40 Cal.Rptr. 334, 336.)  “Even though plaintiff's case may appear dubious to a reviewing court, the functions of the jury must be respected.”  (Walnut Creek Aggregates Co. v. Testing Engineers, Inc. (1967) supra, 248 Cal.App.2d 690, 697, 56 Cal.Rptr. 700, 704.)

It was, therefore, reversible error to take the issue of negligence premised upon the acts and omissions of Kilgo and Rinehart from the jury's consideration.


 The police tactical manual on the use of firearms was competent evidence relevant to the question of due care (Dillenbeck v. City of Los Angeles (1968) 69 Cal.2d 472, 478, 72 Cal.Rptr. 321, 446 P.2d 129) not only on the negligence issue, but also upon the reasonableness vel non of the force used for self-defense which remained an issue in the case even on the cause of action predicated upon an intentional tort.   The jury verdict was only the bare minimum of nine to three in favor of the defendants.   The trial judge expressly instructed the jury that the police tactical manual on the use of firearms had been stricken from the evidence and that the jurors were to completely disregard it.   After having read the testimony not only as to the portion summarized above, but in its entirety, we cannot say that with the police tactical manual in evidence for the jury's consideration, a different verdict would not have been reasonably probable.  (Cal. Const. art. 6, § 13;  People v. Watson (1956) 46 Cal.2d 818, 837, 299 P.2d 243, cert. denied, Watson v. Teets, 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55.)   The striking of the manual and the instructing of the jury that they could not consider it on the questions submitted to them for their deliberation and verdict thus constituted reversible error even on the intentional tort theory.


Plaintiff next assigns as error the trial judge's permitting the witness Edward A. Plankers to be impeached by evidence showing that his wife had been arrested for a misdemeanor drunk driving charge, as to which she later pleaded guilty to reckless driving, and that his son had been arrested, as a juvenile, for receiving stolen property.   These arrests of spouse and son were used as part of the evidence to show that Plankers was biased and prejudiced against the police and the police department after he testified on redirect examination in response to his own counsel's question that he had not animosity or prejudice against the police department.   Plankers' wife, Marianne Plankers, also testified on direct examination that she had no feeling or animosity against the police department or police officers.   Plaintiff's counsel also had her testify to her direct examination that she had been cited by the police for reckless driving.

 Under Evidence Code, section 780, subdivision (f), evidence showing the existence, nonexistence of bias, interest, or other motive of witness may be shown.   This is not an innovation.  (See:  3 Wigmore on Evidence (3d ed., 1940) §§ 948–952, pp. 498–510;  McCormick on Evidence (1954) pp. 82–84;  Witkin, Cal.Evidence (2d ed., 1966) § 1229, pp. 1135–1136;  Hale, Bias As Affecting Credibility (1949) 1 Hastings L.J. 1–19; 98 C.J.S. Witnesses, § 716, p. 387.)   While the admissibility of such evidence is not wide open, but subject to the discretion of the trial judge (Maguire, Evidence:  Common Sense & Common Law (1947) p. 53;  Common Sense & Common Law (1947) p. 53;  Witkin, op.cit. supra, p. 1136), we do not feel that the discretion was abused in this instance.   It was after plaintiff's counsel elicited these statements of non-bias and non-hostility from Plankers and his wife that the defense called a Leroy Craig who had worked as a meatcutter for Ralph's Grocery Company with Plankers.   Craig testified to Plankers having made a statement that he would “get even with those goddam cops” after relating that his wife had been arrested for a misdemeanor drunk driving and reckless driving and that his son had been involved in some matter pertaining to auto thefts.   The juvenile court officer was permitted to testify to Plankers' son having been arrested as a juvenile on a charge of receiving stolen property, to show Plankers' animosity in connection with his statement in Craig's presence that every time his boy or his wife left the house, the police seemed to be watching them and that he would “get even with those goddam cops.”   (Evid.Code, § 1202.)

 Plaintiff's contention that it was error to ask the witness James Allen Graves whether he had been convicted of a felony or whether he had pleaded guilty to a felony is well taken.   The statutory rape of which he had been convicted by plea had been reduced to a misdemeanor by a county jail sentence.  (People v. Hamilton (1948) 33 Cal.2d 45, 50, 198 P.2d 873;  People v. Smith (1963) 223 Cal.App.2d 394, 407, 36 Cal.Rptr. 119, cert. denied, 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053;  see Pen.Code, § 17.)   The introduction of arrests only, especially for traffic tickets, against Graves to show his bias and prejudice against the police in general took place in a different posture than in the situation of Plankers.   Both Plankers and his wife had testified in response to their own counsel's questions that they had no feeling of bias or hostility towards the police or the police department.   Such a prelude did not occur in Graves' instance.   The record conveys the impression that the trial judge felt that such evidence was automatically admissible where police officers are parties to an action.   As we have stated above, the admission of such evidence should be admitted only upon the exercise of a judicial discretion.  (See Witkin, op. cit supra, at p. 1136.)   In the instance of Graves, as the case was tried, the discretion was abused.   This is not to say that such evidence can never be used under different circumstances.


In view of the reversible errors noted above, the case will have to be remanded for retrial.  We are quite certain that the other errors assigned will either not occur on a retrial or the question (e.g., as proper jury instructions) will have to be determined de novo in the light of different evidence and the additional issue of negligence.  Consequently, no useful purpose would be served by considering them at this time.VI.

The judgment is reversed.


1.   The essential averments were:  (Par. II) “ * * * [T]he defendants Kilgo and Reinhart [sic] * * * were persons of extremely excitable, belligerent, inflammatory, violent and dangerous propensities, * * * were, and for many months prior thereto, disposed to utilize their service revolvers by menacing gestures therewith when accosting and stopping persons for routine interrogation, even though said persons were not participants, or suspects, in any crime involving violence;  and further in discharging their said service revolvers without reasonable necessity or provocation in accosting and apprehending persons who were neither participants or suspected of participating in any crime involving violence;  and further in using unnecessary physical force and gestures and threats of force in citing and arresting persons even for minor traffic offenses.”(Par. III) “On or about the date of the fatal shooting previously alleged and for many months prior thereto, the defendant CITY * * * well knew and comprehended the vicious and dangerous propensities of * * * Kilgo [and] Reinhart [sic] * * * and further knew and comprehended that said persons were employed by the City of Los Angeles as police officers and were assigned duties exposing them to members of the public at large, and that said defendants and each of them had been issued firearms and were authorized and permitted to use such firearms and physical force as part of the duties of their employment.”(Par. IV) “Said City was negligent in retaining the said * * * Kilgo, Reinhart [sic] * * 8 in its employ and further in allowing them to perform duties exposing said defendants to members of the public at large, and further in issuing firearms to said defendants and allowing them to perform duties which involved the use of such firearms and physical violence in that * * * defendant City * * * knew of the dangerous propensities of said defendants as alleged hereinabove and further realized the risk of harm to members of the public which was created thereby.”

2.   Eichler Homes of San Mateo, Inc. v. Superior Court (1961) 55 Cal.2d 845, 13 Cal.Rptr. 194, 361 P.2d 914 [amendment on correct erroneous description of property on which defendant was to clear, grub, excavate, and grade];  Wennerholm v. Stanford Univ. Sch. of Med. (1942) 20 Cal.2d 713, 128 P.2d 522, 141 A.L.R. 1358 [publication of false representations re drugs changed from negligent to fraudulent];  Stockwell v. McAlvay (1937) 10 Cal.2d 368, 74 P.2d 504, appeal dismissed, cert.denied, 304 [addition to a specific allegation as to the interest plaintiff claimed in shares of stock in action to set aside a sheriff's execution sale];  Simons v. County of Kern (1965) 234 Cal.App.2d 362, 44 Cal.Rptr. 338 [permissive use theory changed to respondeat superior where driver of county-owned car was in an accident];  Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 36 Cal.Rptr. 537 [change from negligence to intentional tort in performance of certain medical diagnostic tests].   In each case, the alleged acts or omissions and the actual tort-feasors or wrongdoers remained the same.  Garrett v. Crown Coach Corp. (1968) 259 cal.App.2d 647, 66 Cal.Rptr. 590 would appear to be the only case cited which is in point, but the particular problem presented in the instant case was not discussed and therefore cannot be deemed dispositive of the issue here presented.

3.   It also remained relevant on the issue of self-defense as we shall comment later.

4.   Variations from this normal order of procedure may at times be permissible and are not erroneous per se (see, e.g., Levizon v. Harrison (1961) 198 Cal.App.2d 274, 277, 18 Cal.Rptr. 284;  16 Cal.Jur.2d, Dismissal and Nonsuit, § 43, pp. 269–70);  however, one vice is that a motion for nonsuit midway through the defense case in chief is that it forecloses the possibility of the plaintiff developing evidence in his favor by cross-examination of the defense witnesses before the court is called upon to rule whether it will direct a verdict.

5.   A surface street about two and one-half miles north of Santa Monica Freeway.

6.   Additional testimony favorable to plaintiff was also developed after the motion was granted.

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