ELLISON v. LANG TRANSP CO (1937)

We have before us:

(1) Motions to dismiss the appeals on the ground that appellant has failed to meet the requirements of section 2 of rule VIII (Rules for the Supreme Court and District Courts of Appeal, 213 Cal. xlvii).

(2) Appeals from judgments in favor of respondents after trial before a jury in two actions to recover damages for wrongful deaths resulting from the alleged negligence of appellant.

The actions were consolidated for the purpose of the trial.

I.

October 21, 1937, the date the present motions were filed, section 4 of rule VIII of the Rules for the Supreme Court and District Courts of Appeal read as follows:

“Sec. 4. For any failure to observe this rule the court may, of its own motion, order the proper statement or index to be supplied or strike out the brief or petition, or for the failure of the appellant, dismiss the appeal, or for the failure of the petitioner, deny the petition.” Rule VIII, sec. 4, 213 Cal. xlviii.

Subsequently the judicial council of the state of California emasculated the penal provision above set forth for the violation of a provision of rule VIII and substituted in lieu thereof the following:

“Sec. 4. For any failure to observe this rule the court shall not dismiss the appeal, but may, of its own motion, or on motion of an opposing party, order a proper statement or index to be made, or the transcript or brief to be amended or a supplement thereto to be filed, supplying such omissions and curing such defects as are in violation of this rule. In making the order the court may impose such terms and conditions on the offending party or his counsel as the circumstances appear to justify.”

This latter provision became effective November 24, 1937. Therefore, since the present rule is impuissant and prohibits the dismissing of an appeal for failure to comply with the provisions of rule VIII, respondents' motions to dismiss the appeal must be denied.

II.

Viewing the evidence most favorable to respondents (Patten & Davies Lbr. Co. v. McConville, 219 Cal. 161, 164, 25 P.2d 429), the facts are these:

November 13, 1934, about 2:30 a. m. Claude Ellison was operating an automobile northerly on the Ridge Route between Castaic and Gorman, Cal. In the car with him were Nora Andrade, Rachel Keys, James N. Ellis, and three children. At approximately the time above mentioned Mr. Ellison drove his automobile, while traveling at about 35 miles an hour, into the rear end of one of appellant's trailers loaded with steel, which was moving slowly in a northerly direction on the extreme right–hand side of the highway, without lights on the rear thereof. Claude Ellison and Nora Andrade were both killed in the accident. The present suits were filed by the administratrix and administrator, respectively, of the decedents.

Appellant urges reversal of the judgments on the following propositions:

First. There is no substantial evidence to sustain the findings of fact upon which the judgments were necessarily predicated.

Second. It was error for the trial court to receive in evidence over objection a deputy sheriff's report of the accident.

Third. It was error to permit respondents' counsel to discuss the question of damages before the jury, this subject not having been touched upon by respondents' counsel in their opening argument nor by appellant's counsel in their argument.

Fourth. The trial court committed prejudicial error in (a) instructing the jury, and (b) refusing to give instructions requested by appellant.

Fifth. The damages awarded by the judgments are excessive.

As to appellant's first proposition, an examination of the record discloses there was substantial evidence considered in connection with such inference as the jury may have reasonably drawn therefrom to sustain every material finding of fact upon which the judgments were necessarily predicated. Further discussion of the evidence is unnecessary. Thatch v. Livingston, 13 Cal.App.2d 202, 56 P.2d 549; People v. Groves, 9 Cal.App.2d 317, 321, 49 P.2d 888, 50 P.2d 813; Leavens v. Pinkham & McKevitt, 164 Cal. 242, 245, 128 P. 399.

Appellant's second proposition is untenable. The law is settled that accident reports and reports supplemental thereto which are required to be made under section 484 of the Vehicle Code, St. 1935, p. 172, by drivers and owners of vehicles shall not be used as evidence in any trial, civil or criminal. Section 488, Vehicle Code, St.1935, p. 173. However, in the instant case the testimony discloses that the report which was received in evidence was not a required report but was one made by an officer for the information and benefit of the sheriff's department only, and was admitted on cross–examination of the officer who made it.

Appellant's third proposition is likewise untenable. It is undoubtedly the better practice to limit plaintiff in his closing argument to subjects which he has touched upon in his opening argument or which have been discussed by defendant's counsel in argument; however, in the instant case there is a total absence of any showing of prejudice to appellant resulting from the practice which was actually followed nor is there any showing that appellant asked the trial court for permission to make a reply to respondents' argument on the subject of damages.

The fourth proposition urged by appellant will not be considered by us, because of the failure to observe the provisions of rule VIII, section 3 (213 Cal. xlvii), which provides that, where instructions given to a jury are attacked as erroneous, all other instructions given, bearing upon that subject, must be printed in full in the appellant's brief; also that, if it be claimed that instructions requested were erroneously refused, the refused instructions must be printed in full in appellant's brief and all instructions given bearing upon the subject covered by the refused instructions must be printed in appellant's brief in full or the substance thereof clearly stated with citations to the line and page where such instructions may be found. Rule VIII, sec. 3, supra.

The final proposition of appellant is untenable. The law is settled that the jury's verdict will not be set aside on appeal upon the ground that the damages are excessive, unless the verdict is so outrageously excessive as to suggest at the first blush passion, prejudice, or corruption. Corvin v. Hyatt, 10 Cal.App.2d 107, 108, 51 P.2d 176. Neither the verdict of $12,000 as damages for the death of Claude Ellison nor the verdict of $10,000 as damages for the death of Nora Andrade fall within the provisions of the foregoing rule.

We have examined the other errors alleged to have been committed by the trial court in its rulings on the admission and rejection of evidence but find none which resulted in prejudice to appellant.

For the foregoing reasons (1) the motions to dismiss are denied, and (2) the judgments are and each is affirmed.

I concur in the order of affirmance. In my opinion no error appears in the record which would justify an order of reversal.

McCOMB, Justice.

I concur: CRAIL, P. J.