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District Court of Appeal, First District, Division 1, California.


Civ. 13953.

Decided: February 04, 1949

Dana, Bledsoe & Smith, of San Francisco, for appellant. Waldier & Truce, of San Carlos, for respondent.

This appeal is from a judgment for personal injuries. The jury returned a verdict in favor of defendants Charles W. Renshaw and Charles A. Langlais and in favor of plaintiff against defendants Harold Dyer and Jack M. Edmonds in the sum of $6000. The latter two defendants appeal.

Defendant Harold Dyer urges one point not applicable to Jack Edmonds; namely that his motion for nonsuit should have been granted on the ground that the relationship of Harold Dyer to the driver of the vehicle was not proved. Connected with this subject of insufficiency of the evidence is a claimed error in one of the instructions to the jury.

Defendants Dyer and Edmonds contend that the verdict and judgment are excessive and that this is due to the reference to the plaintiff's financial condition which was made by plaintiff's attorney during argument.

Defendant Edmonds was driving a truck and trailer in a southerly direction on the westerly side of the Bayshore highway. A Langlais Company pickup truck entered the highway and started toward the south. The vehicle in which plaintiff was riding, driven by one Dias, was proceeding north in the easterly lane. There was some confusion in the passing operations of the Langlais and the Edmonds trucks resulting in an impact with the Dias automobile. As the sufficiency of the evidence against Edmonds as the driver of a truck is not attacked, the above narrative is adequate to proceed to a discussion of the points presented collectively by Harold Dyer and Jack M. Edmonds.

Defendants note that two medical bills amounted to $9 and that only one day's work was lost by plaintiff as a result of the accident. From these facts it is argued that the judgment for $6000 is excessive. The evidence shows that as a result of the accident plaintiff has suffered a cartilage injury to the knee, residual headaches and a facial scar. The cases cited by appellant are not identical in all facts. The amount fixed by the jury and approved by the trial judgment should not be disturbed on appeal unless the amount awarded was the result of passion and prejudice. Couch v. Pacific Gas & Electric Co., 80 Cal.App.2d 857, 183 P.2d 91; Brown v. Boehm, 78 Cal.App.2d 595, 178 P.2d 49.

It appears that the attorney for the plaintiffs in his closing argument informed the jury that he did not bring a certain doctor to testify because plaintiff could not afford the expense. Other physicians testified sufficiently to prove by a preponderance of the evidence that injuries had occurred. The remark to the jury was improper and could have implanted a germ of prejudice against defendants in finally fixing the amount of the verdict. Apparently it was a casual remark, with no effort at repetition and was met promptly by the trial judge, not only in directing the jury to disregard the statement but in reprimanding the attorney with an admonition to confine his remarks to evidence introduced in the case. Any other error which may appear in the record is not pertinent to the failure of plaintiff to call the doctor and should not be considered therewith. Under all the circumstances it may not be held that the remark contributed to the amount of the verdict. Accordingly it did not constitute prejudicial misconduct against either Harold Dyer or Jack M. Edmonds.

Defendant Dyer did not testify. Edmonds testified as follows:

“Q. Jack Edmonds, you have heard the testimony of Charles Renshaw, that on November 18th, 1946, you were present at the time of an accident involving a three quarter ton Chevy pickup operated by Charles Renshaw and another passenger car operated by Robert Dias, and is it true you were present at the scene of that accident? A. Yes, sir.

“Q. You were then and there, at that time and place, immediately previous to and immediately after this accident operating a truck, semi trailer unit? A. Yes, sir.

“Q. At that time by whom were you employed? A. Deyer trucks.

“Q. Deyer trucks of Corcoran, California? A. Yes, sir.

“Q. For how long a time had you been in their employ? A. Over five years.” This testimony was given at the trial by Edmonds without objection by any defendant. If Edmonds was liable as an employee of Dyer Trucks, the latter, if a party to the action, would also be liable. In addition Edmonds as the driver of the truck is personally liable. The judgment against Edmonds must be affirmed.

The additional ground of claimed error to the prejudice of Harold Dyer may now be considered. The original complaint listed as defendants several “Does”. Paragraph three, when filed, read: “That at all times herein mentioned, said defendant, Jack M. Edmonds, was the agent and employee of defendant, First Doe, and/or Dyer Trucking Company, a corporation, and at all times herein mentioned, was acting in the course and scope of his said employment and said agency.” Approximately four weeks before the appealing defendants, Dyer and Edmonds, filed their joint answer plaintiff filed an amendment to the complaint which was as follows: “Upon filing the complaint, plaintiff being ignorant of the true name of a defendant, having designated him in the complaint by the fictitious name, First Doe, and having discovered the true name to be Harold Dyer, doing business as Dyer Trucks, hereby amends his complaint by inserting such true name in the place of such fictitious name wherever it appears in said complaint.” Code of Civil Procedure, Sec. 474 Nine months before trial defendants Harold Dyer and Jack M. Edmonds filed an answer denying the allegations of paragraph three of the complaint that Jack M. Edmonds at the time of the accident was acting within the course and scope of his employment. At the conclusion of plaintiff's case defendant presented the following motion: “If the Court please, the defendant Harold Dyer moves a non suit on the ground no evidence has been shown here to connect this defendant in any way with the case. The complaint alleges that Jack Edmonds, the driver of the truck, was an agent and employee of the defendant, First Doe, and/or Dyer Trucking Company, a corporation, and at all times was acting in the scope of his employment. In paragraph 5 of the Complaint it says: ‘on information and belief the vehicle being driven at the time of the accident by Jack Edmonds, was owned by First Doe, and/or Dyer Trucking Company, a corporation, and at the time of the accident was being driven with the consent of the owner.’

“Now we have appeared for Harold Dyer purportedly sued herein as a doe because he has not been named or served and our answer denies those allegations of the Complaint. So we have nothing to prove that Harold Dyer or the Dyer Trucking Company was either the owner of that truck or the master of the driver of the truck.” Plaintiff called attention to the fact that the complaint had been amended “to show that the person designated therein by the fictitious name of First Doe was discovered to be Harold Dyer, doing business as Dyer Trucks”, whereupon the defendant's attorney stated, “So far as the amendment is concerned, I haven't seen or heard of that amendment to the Complaint. I don't know when it was filed, it was never served on us.” Thereafter the attorney for the plaintiff stated, “Amended and filed March, 1947; I submit to you a copy of the Amended Complaint and you will note it has the stamp of the clerk of court by June Lynch, deputy clerk.” The answer of defendants Harold Dyer and Jack M. Edmonds is signed by Cooley, Crowley, Gaither & Dana followed by an affidavit of Leighton M. Bledsoe averring “That he is a member of the law firm of Cooley, Crowley, Gaither & Dana, which law firm has its offices at 206 Sansome Street, San Francisco, California; that said Cooley, Crowley, Gaither & Dana are the attorneys for the defendants Harold Dyer and Jack M. Edmonds.” If there was no prior service of the amendment to the complaint on Mr. Bledsoe's firm of attorneys the service in open court was sufficient. No request was made for time to answer the amendment. On the contrary, the defendants proceeded with the presentation of evidence in which Mr. Bledsoe participated. The circumstances show that Harold Dyer, doing business as Dyer Trucks, failed to file an answer and hence the allegations of the complaint as amended are admitted by the pleadings.

The court instructed that “While there are several defendants in this action, two (2) of them, Charles A. Langlais and Harold Dyer, have been sued herein because, as has been established, they were the principals for whom defendants Charles W. Renshaw and Jack M. Edmonds, respectively, were acting as agents, and within the scope of their authority, at the time of the events out of which the accident occurred. It follows, therefore, that if the agents are liable, the principals are liable.” In view of the record that Dyer failed to file an answer other than as Harold Dyer, the allegations of the complaint established the agency of Edmonds.

The judgment as entered against each defendant is affirmed.

WARD, Justice.

PETERS, P.J., and BRAY, J., concur.