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District Court of Appeal, Fourth District, California.

URE v. MAGGIO BROS. CO., Inc., et al.

Civ. 2105.

Decided: September 15, 1937

Hugh B. Rotchford, of Los Angeles, and Loyal C. Kelly, of Riverside (Robert E. Ford, of Los Angeles, of counsel), for appellants. Kenneth E. Schwinn, of Riverside, for respondent.

This action was instituted by plaintiff, a woman 79 years of age, to recover damages for the alleged wrongful death of her adult daughter. Trial of the action resulted in the rendition of a judgment in plaintiff's favor in the amount of $10,881.23 of which the sum of $10,000 was awarded to plaintiff as general damages. Thereafter the defendants presented a motion for a new trial, which was denied, and defendants thereupon perfected an appeal from the judgment and the order denying their motion for a new trial. The opening brief of appellants was duly filed and respondent now moves this court to dismiss the appeal or affirm the judgment under the provisions of subdivision 3 of rule V of the rule of this court on the grounds that the appeal has been taken only for delay and that the question involved in the appeal is so unsubstantial as to require no further argument.

Examination of appellants' opening brief discloses that it is there contended that the trial court's findings are lacking in evidentiary support and that the amount awarded by way of general damages is excessive. Respondent's memorandum of points and authorities submitted in support of the motion for dismissal or affirmance contains numerous references to the transcript on appeal. Inspection of appellants' opening brief fails to produce a conviction that the questions involved in the appeal are so unsubstantial as to demand immediate affirmance of the judgment without consideration of the record. In accordance, therefore, with the settled policy of this court in a situation of this character, respondent's motion must be denied. City of Los Angeles v. Los Angeles–Inyo Farms, 126 Cal.App. 61, 14 P.(2d) 339; Brown v. Gow, 126 Cal.App. 113, 14 P. (2d) 322: Losleben v. California State Life Insurance Company, 128 Cal.App. 221, 17 P,(2d) 155; Nelson v. National Guaranty Life Co., 128 Cal.App. 341, 17 P.(2d) 155; Henry H. Cross Co. v. Prentice, 137 Cal.App.497, 499, 30 P. (2d) 1017.

Respondent's motion to dismiss the appeal or to affirm the judgment is denied.

JENNINGS, Acting Presiding Justice.

I concur: MARKS, J.

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