Lein v. Parkin

CourtUnited States State Supreme Court (California)
Writing for the CourtSPENCE; GIBSON
Citation49 Cal.2d 397,318 P.2d 1
PartiesJulian LEIN, Plaintiff and Appellant, v. Roy PARKIN, Defendant and Respondent. L. A. 24663.
Decision Date19 November 1957

Pestana & Kidwell, Hollywood, and Hugh R. Manes, Los Angeles, for appellant.

Hill, Farrer & Burrill, Kenneth J. Murphy and Henry E. Kappler, Los Angeles, for respondent.

SPENCE, Justice.

Plaintiff appeals from a judgment entered in favor of defendant in a personal injury action. Plaintiff also purportedly appeals from the order denying his motion for a new trial. The latter order is not appealable and the appeal therefrom must be dismissed. Code Civ.Proc. § 956; Lewis & Queen v. N. M. Ball Sons, 48 Cal.2d 141, 308 P.2d 713.

The trial court, sitting without a jury, found that plaintiff was a 'passenger' in defendant's automobile and that defendant's negligence had caused the injury. However, the court entered judgment for defendant, based upon its finding that plaintiff had assumed the risk of defendant's negligence.

The only issues presented upon this appeal are (1) whether the trial court properly considered the question of plaintiff's assumption of risk when the defendant had not pleaded either that defense or the defense of contributory negligence, and neither defense had been discussed prior to the time that the trial court made its finding of assumption of risk, and (2) whether there was substantial evidence to support the finding of assumption of risk. These issues may be resolved according to California law although the accident occurred in New Mexico. The trial was conducted as if California law applied and the briefs on appeal are also predicated on the applicability of California law. We may therefore conclude that both plaintiff and defendant have agreed to have the issues determined pursuant to the law of California. Cf. Lubin v. Lubin, 144 Cal.App.2d 781, 786, 302 P.2d 49.

In support of the judgment, defendant contends that certain evidence introduced by plaintiff constitutes substantial evidence to sustain the trial court's finding of assumption of risk. Plaintiff testified, on direct examination, that in June 1953, he and defendant were traveling from Los Angeles to New York under an agreement to share the driving of defendant's 1950 Studebaker and the expenses of the trip. Plaintiff stated that defendant had had no prior experience in driving upon desert roads that are frequently convered with sand and dirt, yet he continually drove at speeds above seventy-five miles per hour over such roads. Defendant was 'always in a hurry' and had announced that he intended to reach New York in three or four days. Plaintiff frequently admonished defendant to drive more slowly while, on the other hand, defendant asked plaintiff to drive more rapidly whenever plaintiff was driving. After they had been driving continuously for eighteen hours, plaintiff convinced defendant that they should stop overnight at a motel in Albuquerque, New Mixico. They left that city at 4 o'clock the next morning. Plaintiff testified that he later went to sleep in the back of the automobile, and that he was still asleep when it ran off the side of the road.

The evidence above summarized is sufficient to support the finding of assumption of risk, if such a finding is otherwise proper. The trial court could find and conclude therefrom that defendant was driving in a negligent manner, that plaintiff was well aware of defendant's negligence, and that despite this knowledge he chose to continue with defendant although it would have been more reasonable to have left defendant at Albuquerque. See Bassett v. Crisp, 113 Cal.App.2d 295, 308, 248 P.2d 171; Anderson v. Hawkins, 100 Cal.App.2d 490, 494, 223 P.2d 857; Van Fleet v. Heyler, 51 Cal.App.2d 719, 733-734, 125 P.2d 586.

As ground for reversal, however, plaintiff contends that the finding of assumption of risk was improper because it went beyond the scope of the issues presented by the pleadings. Defendant, on the other hand, claims that this argument is without force because plaintiff himself introduced the pertinent evidence. We have heretofore recognized that in certain situations, findings outside the issues made by the pleadings can be appropriate where the evidence supporting these findings has been introduced without objection. We considered this problem recently in Miller v. Peters, 37 Cal.2d 89, 230 P.2d 803, 806. In that case defendant had pleaded that only one plaintiff was contributively negligent. The evidence introduced in support of this allegation, however, was sufficient to prove that both plaintiffs were contributively negligent. We nevertheless reversed the judgment, holding that defendant's introduction of such evidence, although without objection, did not authorize the giving...

To continue reading

Request your trial
22 cases
  • Reich v. Purcell
    • United States
    • United States State Supreme Court (California)
    • October 30, 1967
    ...... Such complex cases elucidate what the simpler cases obscured, namely, that the forum can only apply its own law. (See Lein v. Parkin, 49 Cal.2d 397, 318 P.2d 1; Grant v. McAuliffe, 41 Cal.2d 859, 264 P.2d 944, 42 A.L.R.2d 1162; W. W. Cook, The Logical and Legal Basis of ......
  • Lewis v. Lewis
    • United States
    • United States State Supreme Court (California)
    • November 19, 1957
  • Courtell v. McEachen
    • United States
    • United States State Supreme Court (California)
    • February 2, 1959
    ...acquiesced in such trial as if the issue had been made by the pleadings. Ortega v. Cordero, 88 Cal. 221, 227, 26 P. 80; Lein v. Parkin, 49 Cal.2d 379, 400-401, 318 P.2d 1. The plea must set forth the facts on which the defense of contributory negligence is predicated and not merely state th......
  • George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd., AFL-CI
    • United States
    • California Court of Appeals
    • September 30, 1986
    ...an issue not presented. [Emphasis added.]' (Freeman v. Gray-Cowan, Inc., 219 Cal. 85, 87 [25 P.2d 415].)" (Accord Lein v. Parkin (1957) 49 Cal.2d 397, 400-401, 318 P.2d 1; see also Inouye v. Pacific Gas & Elec. Co. (1959) 53 Cal.2d 361, Considerations of due process of law therefore require......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT