Robison v. Leigh

• Decision Date: 11 September 1957
• Citation: 315 P.2d 42,153 Cal.App.2d 730
• Court: California Court of Appeals Court of Appeals
• Parties: W. A. ROBISON, Administrator of the Estate of Miles Scott, deceased, Iva Meigs, Marion Kirkman, Effie Wells, Celia Bolinger and Zora Hamilton, Plaintiffs and Respondents, v. Robert LEIGH, Defendant and Appellant. Civ. 17392.

Page 42

315 P.2d 42

153 Cal.App.2d 730

W. A. ROBISON, Administrator of the Estate of Miles Scott, deceased, Iva Meigs, Marion Kirkman, Effie Wells, Celia Bolinger and Zora Hamilton, Plaintiffs and Respondents, v. Robert LEIGH, Defendant and Appellant.

Civ. 17392.

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

Sept. 11, 1957.

Rehearing Denied Sept. 11, 1957.

Hearing Denied Nov. 7, 1957.

Daniel J. O'Brien, Jr., Daniel J. O'Brien, III, San Francisco, for appellant.

Barbagelata, Zief & Carmazzi, Henry J. Broderick, San Francisco, for respondents.

DOOLING, Justice.

On August 6, 1954, Miles Scott, aged 81 years, was struck by a truck driven by defendant and appellant Leigh, suffering a fracture of the right hip. Scott died on January 16, 1955, aged 82, the immediate cause of death being a myocardial infarction due to coronary arteriosclerosis. Respondent Robison as administrator of Scott's estate sued to recover medical and funeral expenses and the other respondents, five sisters and sole heirs of Scott, sought damages for Scott's death under section 377, Code of Civil Procedure. Judgment was allowed by the court sitting without a jury in favor of the administrator for $4,992.43 (of which $4,438.65 was for medical expenses and $553.78 was for funeral expenses) and in favor of the heirs for $500.

Appellant challenges the finding of the trial court that the injuries inflicted by his negligence on Scott were a proximate cause of Scott's death. A medical witness testified that where an elderly person such as Scott suffers a broken hip which confines him to bed he '* * * cannot be as active as they should be, and I feel, in my opinion, that when an elderly person has suffered such an injury, if their death does take place within the first year or so, it could be considered a contributory cause. * * * I would feel it would be considered a contributory cause. * * * I could not say with certainty, except what I said before, that I do believe that the injuries and the confinement he suffered would be considered a contributory cause.'

Medical witnesses need not testify positively to support a finding of proximate cause. Their opinion of the probabilities is sufficient for that purpose. Travelers Ins. Co. v. Industrial Acc. Com., 33 Cal.2d 685, 203 P.2d 747; cf. Ostertag v. Bethlehem, etc., Corp., 65 Cal.App.2d 795, 806-807, 151 P.2d 647. Tested by this rule the quoted evidence supports the finding.

While he was in the hospital the decedent signed and delivered a full release for which he received a check for $500. This was pleaded as a defense, the release being attached to the amended answer as an exhibit. The due execution of the release was not disputed but on the trial it was proved that subsequently the decedent had attempted to rescind the release, and defendant had refused to accept the rescission. This raised an issue outside of the pleadings as to whether any good ground for rescission existed. The court made no finding on this issue but found instead that it is not true that decedent did release the defendant from liability 'as appears on said 'Exhibit A' which is attached to the first amended answer * * *.'

The finding as made is not supported by the evidence since the release at most was voidable and not void. Respondents argue that it is a finding of ultimate fact from which the fact of rescission may be inferred, but a finding that there was no release does not infer, but contradicts, the fact that there was a release which was later rescinded. There a defense is pleaded in the answer which depends on a written instrument and a copy is annexed the genuineness and due execution are admitted unless the plaintiff files an affidavit denying the same (§ 448, Code Civ.Proc.) but the plaintiff may attack the instrument on other grounds without further pleading (21 Cal.Jur., Pleading, § 114, p. 168). The respondents, however, cannot rely on a rescission of the release to support their judgment in the absence of a finding on that issue, nor can they successfully argue that the right to such finding was waived by the appellant's failure to object to the form of the findings in the lower court. The final decision is deemed excepted to (§ 647, Code Civ.Proc.) and '* * * the insufficiency of the findings to support the judgment may be urged on appeal although appellant neither excepted to the findings nor sought their amendment.' Palpar, Inc., v. Thayer, 82 Cal.App.2d 578, 584, 186 P.2d 748, 751; San Jose Abstract & Title Ins. Co. v. Elliott, 108 Cal.App.2d 793, 803, 240 P.2d 41; Mackay v. Whitaker, 116 Cal.App.2d 504, 509, 253 P.2d...