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

Gary B. WILLIAMS, Plaintiff and Appellant, v. ROBINSON VAN LINES et al., Defendants and Respondents.

Civ. 16382.

Decided: July 22, 1955

Robert A. Kaiser, Oakland, for appellant. Clark & Heafey, Schofield & Hannegan, Oakland, Gerald P. Martin, Oakland, of counsel, for respondents.

This is an action to recover damages for personal injuries. Plaintiff was employed by one Hirsch with four other men as caretakers of a number of race horses being transported from Arcadia, California, to Pleasanton under contract between the owner of the horses and the trucking corporations. By agreement the owner of the horses was permitted to send five caretakers along with the horses without extra charge. The complaint alleges that through the negligence of the ‘defendants' the door of the truck in which plaintiff was riding was not locked and that plaintiff fell through the open door to the pavement causing the injuries. The reference to the defendants is to the two names of the trucking concern. Hirsch, the owner of the horses, and the employer of the caretakers was not sued.

The cause was tried to a jury and resulted in a verdict for the defendants. Plaintiff's motion for a new trial was denied. The appeal is from the judgment alone. The record discloses a most peculiar situation. There is not a word of evidence tending to prove the most essential element of the case—the negligence of any of the defendants. The agreed statement relates to the evidence offered by one of the defendants—the shipper—of his contract with the owner of the horses relating to his obligations and liability—to the owner—for injuries incurred by the horses in the course of the shipment. In the settled statement it is recited that there was sufficient evidence introduced to support a verdict for either party. But nowhere does it appear what that evidence was. There is nothing in the record tending to show how the plaintiff was injured, whose duty it was to see that the doors of the van were kept locked, or who was to blame for the door being open. Nor was there any evidence showing the extent of the injuries claimed by plaintiff.

The only attack made by the appellant relates to the refusal of the trial court to give his proposed instruction relating to the contract between the defendants and the shipper relieving the defendants from liability to the owner of the horses for injuries to the owner's employee. These proposed instructions would merely inform the jury that the contract between the two defendants and Hirsch was not binding on the plaintiff. This is a mere commonplace. No one is bound to a contract to which he is not a party unless he voluntarily assumes liability under it. The instances where a liability is implied by the circumstances of the particular case are not present here. The contract merely freed Hirsch from liability to the named defendants—the two carriers. It was of course not binding upon the plaintiff. But the plaintiff did not sue Hirsch, hence any matter relating to Hirsch's negligence was not within the issues.

For these reasons we conclude that the admission of the contract in evidence as well as the refusal to give the proposed instruction was not prejudicial.

Judgment affirmed.

I dissent. The Rules on Appeal are designed to encourage the use of short records wherever possible. See Alkus v. Johnson-Pacific Co., 80 Cal.App.2d 1, 11 et seq, 181 P.2d 72. Here the only question argued by appellant concerns the effect of the contract between respondents and the shipper and the refusal of the court to give an admittedly proper instruction that such contract could not relieve respondents of liability to appellant for their negligence. To present this question the evidence of respondents' negligence was not necessary so long as the record showed in some fashion that the evidence was sufficient to support a judgment for appellant. The settled statement, which is not attacked by respondents, does this by the recital that there was sufficient evidence introduced to support a judgment for either party. With this recital in the record we are thwarting the purpose of the Rules on Appeal to encourage the use of short records by holding the record insufficient in this particular. (See particularly Rule 52.)

NOURSE, Presiding Justice.

KAUFMAN, J., concurs.

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Docket No: Civ. 16382.

Decided: July 22, 1955

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

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