Department of Water and Power v. Anderson

• Decision Date: 22 March 1938
• Docket Number: No. 8420.,8420.
• Parties: DEPARTMENT OF WATER AND POWER OF CITY OF LOS ANGELES v. ANDERSON.
• Court: U.S. Court of Appeals — Ninth Circuit

95 F.2d 577 (1938)

DEPARTMENT OF WATER AND POWER OF CITY OF LOS ANGELES v. ANDERSON.

No. 8420.

Circuit Court of Appeals, Ninth Circuit.

March 22, 1938.

COPYRIGHT MATERIAL OMITTED

Ray L. Chesebro, City Atty., S. B. Robinson, Chief Asst. City Atty., J. M. Stevens, Asst. City Atty., and Fairfax Cosby, G. Ellsworth Meyer, and Mark A. Hall, Deputy City Atty., all of Los Angeles, Cal. (A. S. Henderson, of Las Vegas, Nev., of counsel), for appellant.

Guy E. Baker, Harold M. Morse, C. D. Breeze, and Chas. M. Butts, all of Las Vegas, Nev., for appellee.

Clarence S. Hill, Charles E. Taintor, and Ford Hendricks, all of Los Angeles, Cal., amici curiae.

Before GARRECHT, MATHEWS, and HANEY, Circuit Judges.

HANEY, Circuit Judge.

Appellant seeks to set aside a judgment for $21,904 rendered against it in an action brought by appellee to recover damages for personal injuries sustained by him in a collision of the automobile in which appellee was riding as a guest passenger, with an automobile, belonging to appellant, which was being driven by one Nicoll, one of appellant's employees.

After briefs were filed by both parties hereto, and oral argument of counsel, with our permission, a brief of amici curiae was filed wherein it is suggested that counsel (the city attorney of Los Angeles, and his deputies), who appeared for appellant in the Nevada state courts and petitioned for and secured removal therefrom, who thereafter filed an answer on behalf of appellant in the court below, and who tried appellants' cause in that court and who thereafter petitioned for and perfected this appeal and thereafter before us briefed and argued this appeal, were without authority to represent appellant.

Opportunity has been granted by us for appellant to repudiate such of its counsel, but it has not done so.

The city attorney has filed a brief in answer to that of amici curiae, nowhere even intimating his lack of authority to appear for appellant, but therefrom it is patent that the cause was referred to him for attention by the executive officers of the Bureau of Power and Light of the appellant.

We will assume that members of the bar formally appearing for litigants before us and in other federal courts are authorized to so appear (Hill v. Mendenhall, 88 U.S. 453, 21 Wall. 453, 454, 22 L.Ed. 616), and will continue to indulge in that assumption until the litigants or such attorneys formally and under oath challenge the truth of such assumption, or proof is submitted challenging the truth of such assumption, sufficient to warrant inquiry regarding such authority.

In view of the failure of appellant or its attorneys to deny the authority of such attorneys, we think the suggestion here does not justify such inquiry. 7 C.J.S., Attorney and Client, 882, § 74.

We note that some, if not all of counsel appearing for appellant in the state court, the court below, and before us, are members of the bar of this court.

It does not appear that the appearances, defenses, and appeals herein are unauthorized. If it did so appear, we would dismiss this appeal.

We will disregard the suggestions of amici curiae and dispose of this cause on the merits.

Nicoll was employed by appellant to patrol certain territory in which appellant maintained a power transmission line. His hours were from 8 o'clock in the morning to 5 o'clock in the evening, except Saturdays, when he worked until noon. He did not work on Sundays, but he was subject to be called to work at any time. Appellant provided Nicoll with an automobile for the patrol work.

On Friday, September 15, 1933, Nicoll spent the night at his home. The next morning he worked until about 11 o'clock. He then decided to go to Las Vegas, Nev., to visit some friends, and to buy some shirts, a shoeshining outfit, some stamps, and some writing paper, for his own use. He drove appellant's automobile to Las Vegas and made his purchases. Immediately thereafter he engaged in, as appellant says, "what, with charity, may be termed a personal frolic." He was in various degrees of inebriacy from about that time until the time of the collision. He spent Saturday and Sunday nights at a roadhouse some 70 miles from his home. He arose about 3 o'clock on Monday morning and started to drive to his home for the purpose of eating breakfast there at 6 o'clock. After driving about 27 miles the collision occurred. The time of the collision was about 4 o'clock a. m. Appellee sustained injuries.

Appellee brought an action against Nicoll and appellant in a Nevada state court. It was removed to the court below. Appellee contends that two acts of negligence were alleged. The first is that the injury, sustained by him, was proximately caused by Nicoll's negligence, for which appellant was liable. Appellant now concedes that Nicoll was negligent and that his negligence was the proximate cause of appellee's injuries, but denies any liability therefor. Whether the second act of negligence is properly pleaded is disputed.

Appellee contends that he pleaded that appellant was negligent in intrusting its automobile to Nicoll. The allegations in question are: "That at all the times hereinafter mentioned, defendant Nicoll, had permission and authority from his said employers * * * to use and operate said * * * automobile upon the public highways of the State of Nevada, notwithstanding, that at all said times, the managers, superintendents, and foremen of said employers * * * who were directly over him, and had control of said automobile, and who gave him such permission and authority, well knew that the said Daniel Nicoll was a careless, reckless and incompetent driver of an automobile, and was addicted to the excessive use of intoxicating liquor."

It was also alleged that Nicoll, at the time of the accident was "grossly intoxicated."

It was further alleged:

"That said collision occurred wholly and solely by and through the negligence of the defendants * * * and that the negligence of the defendants consisted among other things of the following, to-wit:

"1. In then and there failing to have and keep said * * * automobile under proper and reasonable control, so as not to endanger the life and limb of the plaintiff * * *

"3. In failing to take every, or in fact any, reasonable precaution to avoid collision with the automobile in which plaintiff was riding. * * *"

Appellant specifically denied each of the quoted allegations. In a first affirmative defense, appellant alleged that the proximate cause of the accident was the negligence of the operator of the automobile in which appellee was riding. As a second affirmative defense, appellant alleged that "no claim or demand on the part of appellee * * * was made upon, or rejected by, the appellant * * * as required in Section 376 of the Charter of the City of Los Angeles," but did not otherwise plead the provisions mentioned.

Appellee offered no evidence that he had presented a claim to appellant. Appellant did not offer the charter provision in evidence. During presentation of appellee's case, he moved to strike the second affirmative defense. The motion was granted. At the conclusion of the evidence appellant moved for a directed verdict, which motion was denied.

The trial court instructed the jury that an automobile in the possession of and driven by a person under the influence of intoxicants was a dangerous instrumentality; and, in effect, that if appellant or its general foreman knew or should have known that Nicoll was addicted to the use of intoxicating liquor and was a reckless driver, appellant was liable for his tortious acts.

The jury returned a verdict for appellee in the sum of $21,904.00 on November 28, 1935. Appellant moved for judgment notwithstanding the verdict about January 2, 1936, and at the same time moved for a new trial. Appellant submitted with the motions an affidavit of one of the jurors disclosing conduct of the jury in its consideration of the verdict, and containing a statement tending to show that the jury had an erroneous conception as to the basis of appellant's liability.

On May 27, 1936, the court below denied the motions and ordered entry of the judgment. The judgment was entered on June 5, 1936. A petition for a stay of execution and fixing the amount of the supersedeas was filed and granted on July 28, 1936. The supersedeas and cost bond on appeal was approved by indorsement of the court below on July 29, 1936. A petition for appeal and order granting the same was filed on September 2, 1936.

Appellee has filed a motion to dismiss the appeal, contending that the judgment must be considered as having been entered on the day the motion for new trial was denied (May 27, 1936), and, therefore, the petition for appeal, filed on September 2, 1936, was filed 6 days too late. The motion, we believe, must be denied for two reasons. First, because "the approval of the appeal bond was, in legal effect, an allowance of the appeal," as said in Crescent Wharf & Warehouse Co. v. Pillsbury, 9 Cir., 93 F.2d 761, January 4, 1938, and, since that approval was made within 90 days, computed from either May 27, 1936, or June 5, 1936. Second, although, under the District Court's rules, a judgment could have been entered prior to the filing of the motion for a new trial or immediately after the denial of that motion, the fact is that it was not so entered. Until it was entered, the 3-month period allowed for taking an appeal did not commence to run. 28 U.S.C.A. § 230.

Appellant contends that the trial court had no jurisdiction over it because it was not subject to suit anywhere but in the county in which it resides. Appellant is subject to be sued the same as any private person. 18 Cal.Jur. 1121, § 366; see, also, 44 C.J. 1453, § 4649.

Section 394 of the California Code of Civil Procedure, as amended by St.1933, p. 1838, provides in part: "Whenever an action * * * is brought against a * * * city, in any county * * * other than that in which the defendant is...