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


Civ. No. 12482.

Decided: December 22, 1943

Treadwell & Laughlin, of San Francisco, for appellant. John J. Taheny, of San Francisco, for respondent.

There is no merit to the petitioner's point that the parties did not plan to have a trial in the absence of Gonzales or his deposition. It should be noted that both parties took the risk that Gonzales' testimony would not be available and planned accordingly. At least the evidence before the trial court upon the motion for the continuance is susceptible of that inference, which inference must be accepted for the purposes of this appeal.

Petitioner's contention that a material omission was made in the statement of facts in not stating that it repeatedly requested attorneys for plaintiff to give it the written cross–interrogatories is without merit. From the statement of facts the plaintiff took from April 6 to April 28 to prepare the cross–interrogatories. It also appears that on April 17, 1942, petitioner agreed to the setting of the cause for trial on May 25, 1942, before it had received the cross–interrogatories. The statement of facts in the opinion is, perhaps, favorable to the trial court's determination; but, as stated in the opinion, 143 P.2d 349, the issue before the court on diligence was a question of fact and on appeal such rulings are not disturbed if supported by substantial evidence. This substantial evidence is stated in the opinion clearly.

On appeal the evidence most favorable to the jury's verdict must be accepted as true. Although there is no direct evidence that Gonzales did not trip or make an effort to keep the container from falling, Jennings testified that he was watching Gonzales and that he did not see him do any of these things from which it can be inferred that Gonzales did not do them. Therefore the statement in the opinion is not erroneous.

The question arises as to what effect is to be given the recital contained in the paper dated February 24, 1942: “My end of the container slipped from my hands. The container slipped from my hands. * * Jennings, as I let the container drop let his end go. * * * The surface of the container was slippery and I was using my bare hands. Jennings had more success with the ice hooks.” The defendant calls attention to the fact that the evidence produced was a writing signed in New York by Gonzales on February 24, 1942. It argues that the trial court should have construed said writing, and it cites Code of Civil Procedure sections 1858 and 2102. But the record shows affirmatively that the paper was admitted in evidence on the joint stipulation of counsel. The trial court was not asked to construe it and the trial court did not refuse to do so. The point is not presented by the record.

The petition for a rehearing is denied.

STURTEVANT, Acting Presiding Justice.