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District Court of Appeal, First District, Division 2, California.


Civ. 9382.

Decided: December 20, 1934

Hatch & Mahl and C. F. Rafferty, all of San Francisco, and Fitzgerald, Abbott & Beardsley, of Oakland, for appellants. John Francis Neylan and Grove J. Fink, both of San Francisco, and Myron Harris, of Oakland, for respondent.

The petition for a rehearing is denied.

The defendants asked the trial court to give four several instructions. It modified two and gave them as modified. The other two the trial court refused to give. On these rulings they predicate prejudicial error. They assert:

“The actual legal questions answered in the proposed instructions were as follows:

“(a) Did the complaint in Preston v. Herminghaus, [211 Cal. 1, 292 P. 953], state a cause of action before it was amended as a result of the respondent's suggestion?

“(b) What was the legal effect of the evidence given by the witness Brackenridge in response to a certain question; in other words, was the evidence in the Brackenridge deposition before this question was asked legally sufficient to support a verdict for the compensation claimed by the appellants?

“(c) Was there any material conflict in the evidence in the case of Preston v. Herminghaus, as the evidence was disclosed in the reporter's transcript which was in evidence in this case?

“(d) Was the written compensation contract involved in Preston v. Herminghaus, clear and unambiguous upon its face?”

Each question was addressed to issues made by the evidence and not by the pleadings. As to the propriety of refusing to give any one of the requested instructions, the proper rule has been settled by a long list of decisions. “It is undoubtedly error for a court to single out certain issues, or isolated portions of the evidence, thereby intimating that special consideration should be given thereto.” 24 Cal. Jur. 843; Treadwell v. Nickel, 194 Cal. 243, 262, 228 P. 25; Still v. San Francisco, etc., Ry. Co., 154 Cal. 559, 572, 98 P. 672, 20 L. R. A. (N. S.) 322, 129 Am. St. Rep. 177; Estate of Martin, 170 Cal. 657, 672, 151 P. 138; Boa v. San Francisco-Oakland T. Rys., 182 Cal. 93, 101, 187 P. 2; Estate of Clark, 180 Cal. 395, 399, 181 P. 639; Huyck v. Rennie, 151 Cal. 411, 417, 90 P. 929; Kauffman v. Maier, 94 Cal. 269, 283, 29 P. 481, 18 L. R. A. 124; Sullivan v. People's Ice Corp., 92 Cal. App. 740, 745, 268 P. 934. The same rule has been followed generally in the federal and state courts. 64 C. J. 686. The record in the instant case shows no reason for departing from that rule. The deposition of the plaintiff was taken before the trial, and on the trial he appeared as a witness in his own behalf and was examined and cross-examined. Each party called leading members of the bar and propounded to each witness its hypothetical question. Each of those witnesses was examined and cross-examined. No factor in the claim of the plaintiff was excluded when examining said witnesses. No error in ruling on evidence is claimed. If, as defendants now assert, certain services which the plaintiff claimed he rendered were of negligible importance and therefore of negligible value, the defendants had a full opportunity to develop the facts and obtain appropriate rulings on the law when such witnesses were under examination.

The first question (a) is not a correct statement of the question that was before the court. The plaintiff did not contend that the complaint in Preston v. Herminghaus before the amendment did not state a cause of action. He claimed that the amendment was pertinent for the purpose of more specifically defining the subject-matter for which the plaintiff Preston was claiming relief. As to the effect of the amendment, the record discloses that Judge Strother, who permitted the amendment, stated that it made no material change in the pleading. He was the one to decide the point, and his opinion was presumptively correct. The next question (b) was not a question of law, but was one of fact for the jury, and was answered by the testimony contained in the transcript in Preston v. Herminghaus which was in evidence for the information of the jury. Moreover, the subject was fully covered by instruction No. 12, which was given. The next question (c) was also a question of fact for the jury and not one of law. It was answered by the evidence introduced to the effect that Judge Strother, in Preston v. Herminghaus, granted a motion for a directed verdict, which may legally be done only when there is no “material conflict” in the evidence, and his judgment was affirmed on appeal. As to the last question (d) it was also answered by the same ruling.

For each of the foregoing reasons the trial court in the instant case committed no error in refusing to give any of the rejected instructions.