Balistreri v. Turner

Plaintiff Joseph Balistreri brought this action against defendants Ed Turner and Richard Burnside to recover damages for assault and battery. Count one of the complaint alleged that defendant Burnside, while acting as the agent of defendant Turner, did wilfully and without provocation strike and injure plaintiff. Count two of the complaint alleged a conspiracy between defendants Turner and Burnside to maliciously assault and injure plaintiff.

Upon the failure of defendant Burnside to appear at the trial, his default was entered. The case then proceeded, before a jury, against Turner as the sole defendant. Upon the conclusion of the trial, verdict and judgment were for plaintiff against defendant Turner. Defendant Turner appeals therefrom.

The evidence shows that plaintiff is a seaman who joined the Marine Cooks and Stewards Union in 1957, after completing a bakery course at its training school. He began “shipping out” in 1958 and, by the fall of 1960, had served tours of duty aboard four different ships, the last of which was the “President Cleveland.” During the period from March until

Defendant Turner had served as secretary-treasurer of the union continuously since January 1957. This office was the highest in the union, and the incumbent served on all committees ex officio. Defendant Turner also possessed certain appointive powers. In July or August 1960, defendant Turner appointed one “Buck” Mercer, whom he had known for some eight or nine years, to the office of “patrolman. ” Mercer had previously been elected a “patrolman” in Seattle and came to San Francisco at the request of defendant Turner. The administration slate included defendant Turner and Mercer, who was running for the office of “Portland Agent. ’ ’

Sometime in October or early November 1960, Richard Burnside, who was a longtime acquaintance of Mercer’s, arrived in San Francisco. Although neither Burnside nor Mercer testified at the trial, the depositions of both were read into evidence. Burnside stated that he came to San Francisco in order to enroll in the training school and thereby qualify for employment through the union. He evinced considerable uncertainty as to the date of his first meeting with Turner. In a deposition taken on March 2, 1961, Burnside stated that he was introduced to Turner shortly after his arrival, and, on November 15, 1960, gave the latter his application to attend training school. In a second deposition taken on November 30, 1962, Burnside stated that he did not meet Turner until some two weeks later, either in late November or early December 1960. Mercer admitted, in a deposition taken on November 15, 1962, that he had encountered Burnside in Los Angeles sometime before the latter came to San Francisco and that he had loaned him five or six dollars at that time. He denied, however, that he had suggested that Burnside come to San Francisco.

Meanwhile, on November 11, 1960, plaintiff completed his tour of duty aboard the Cleveland and began actively campaigning for Robinson. At approximately 3:30 on the afternoon of November 17, 1960, plaintiff was in front of the union hall distributing leaflets opposing the administration. While plaintiff was so occupied, Burnside struck him on the

Burnside, in the earlier of his two depositions, stated that he had spent the morning of November 17, 1960, hanging around the union hall and drinking with one Jordan. At approximately 3:30 in the afternoon, Burnside began to argue with Jordan over certain money which the latter owed him. While the two men were standing in front of the union hall, Jordan stated that he did not intend to pay back the money. Jordan then made a threatening gesture, and Burnside swung at him and struck plaintiff by mistake.

In his second deposition, Burnside stated that this version of the assault was false, and that in actuality “Buck” Mercer had suggested to him that plaintiff needed a beating or “needed the heat put on him,” and he had agreed to do it. When asked whether he had inquired of Mercer why plaintiff needed a beating, he replied that he was not interested in the reason and that he had agreed to do it “ [j]ust like that.” When asked whether Mercer had offered to pay him for this service, he stated that Mercer had mentioned the sum of $20, but “ [w] hether I was offered it out and out for doing it or personal I don’t know.” He further stated that on numerous occasions following the assault, Mercer had loaned him money which he had never repaid. Immediately after his conversation with Mercer, Burnside talked with Jordan, and the two men worked out a plan whereby Jordan would engage plaintiff in conversation and Burnside would pretend to swing at Jordan and strike plaintiff. Following the execution of this plan, Burnside ran around the corner and then met with Mercer, who had previously agreed to wait for him. Since Burnside’s hand was injured, Mercer took him to a doctor, who treated his hand but never billed him for this service.

On November 19, 1960, Burnside was notified that he had been admitted to the training school, which was operated by a corporation of which Turner served as president. Burnside left for school on November 21, 1960, and did not visit San Francisco until some two or three weeks later. On this occasion, he met with Mercer and was told not to worry because

Mercer’s deposition was substantially in accord with Burnside’s as to the manner in which the assault upon plaintiff came about. Mercer admitted that he had pointed plaintiff out to Burnside and had stated that plaintiff “ought to have a head put on him.” When asked whether he had ever informed anyone that he had hired Burnside to hit plaintiff, he stated that he could have done so. He denied having agreed to meet Burnside after the assault and stated that he found him seated in his car in the basement garage of the union hall and thereafter agreed to take him to a doctor.

Both Mercer and Burnside denied that Turner had ever suggested that they assault plaintiff. Turner similarly denied having made any such suggestion.

Plaintiff testified that some two or three weeks after the assault, he encountered Turner in the union hall coffee shop. As plaintiff handed a pamphlet to a man by the name of Rybers, Turner clenched his fists and advanced on plaintiff. When plaintiff told Turner to keep away, he cursed plaintiff and stated that he was going to put him on nonseniority so that he would never ship out of the union hall again. A few months after this incident, plaintiff again encountered Turner in the coffee shop. On this occasion, Turner informed plaintiff that the federal government was looking for him in connection with back taxes. Some three or four days later, plaintiff did in fact hear from the federal government and was required to produce his tax records for the last three years. On yet a third occasion, plaintiff encountered Turner in the elevator at the union hall. Plaintiff testified that Turner cursed him and took off his glasses. When the elevator stopped at the next floor, plaintiff got out and informed Turner that if he wanted to do anything to plaintiff, he could do it in front of witnesses.

Respondent does not seriously dispute the impropriety of the questions we have noted. He does assert, however, that appellant is precluded from urging such error on appeal by virtue of his failure to assign each and every instance as misconduct and to request that the jury be instructed to disregard it. We are not persuaded by this argument. In People v. Wells (1893) 100 Cal. 459 , 462-463 [ 34 P. 1078 ], the court pointed out that where counsel asks questions which he knows to be inadmissible and improper without the expectation of answers and with the clear purpose of prejudicing the jury against the defendant, the harm lies in the mere asking of the questions and the judgment must be reversed unless it appears that the questions could not have influenced the verdict. In Dastagir v. Dastagir (1952) 109 Cal.App.2d 809 [ 241 P.2d 656 ], the court held the asking of such improper questions to constitute reversible error despite the fact that appellant’s counsel failed to object to the questions. In so holding, the court stated, “Unless the court promptly strikes out an improper question and rebukes counsel for asking it the damage is done. If opposing counsel objects and his objection is sustained the jury may well speculate on what the answer would have been. If no objection is made the witness’ denial still leaves the damaging implication or inference of the question in the record. In such circumstances for opposing counsel to object is generally more damaging than to permit it to be answered without an objection.” (P. 819) .

In the present ease, appellant’s continual objections, all of which were sustained by the court, were unavailing to deter respondent’s counsel even momentarily from his ap

Judgment reversed.

Agee, J., and Taylor, J., concurred.

A petition for a rehearing was denied May 29, 1964, and respondent’s petition for a hearing by the Supreme Court was denied July 8, 1964. Schauer, J., and Me Comb, J., were of the opinion that the petition should be granted.