Mendoza v. Enrico

• Court: California Court of Appeals
• Writing for the Court: GRIFFIN; BARNARD, P. J., and MUSSELL
• Citation: Mendoza v. Enrico, 121 Cal.App.2d 392, 263 P.2d 70 (Cal. App. 1953)
• Decision Date: 19 November 1953
• Parties: MENDOZA v. ENRICO et ux. Civ. 4711.

Page 70

263 P.2d 70

121 Cal.App.2d 392

MENDOZA v. ENRICO et ux.

Civ. 4711.

District Court of Appeal, Fourth District, California.

Nov. 19, 1953.

Spray, Gould & Bowers, Robert E. Ford, Los Angeles, for appellants.

Jerome Weber, Los Angeles, for respondent.

GRIFFIN, Justice.

This action was for damages for claimed personal injuries to plaintiff resulting in a jury verdict for defendants. It was tried by Judge Mitchell. The motion for new trial was heard by Judge Deirup and was granted on the ground of insufficiency of the evidence. No transcript of the testimony at the trial was furnished him. Apparently neither counsel for plaintiff nor for defendant knew of Judge Mitchell's absence from the county until the motion came on for hearing. Counsel for defendants who tried the case died prior to the hearing of the motion.

At the hearing it was stipulated by respective counsel that the assigned judge was duly requested and authorized to act in said court; that he had all the powers given by section 5, Article VI of the California Constitution; and that the trial judge was absent from the county and could not hear the motion.

Counsel for plaintiff then asked the court if he might briefly review the facts as presented to the trial court in the light most favorable to the defendants. A map was used in demonstrating what the several witnesses testified to in respect to the collision and resulting injuries. He stated that defendants' car struck a truck in which plaintiff was riding as a passenger. Plaintiff was seated on some boxes in the rear of the truck and defendants' car ran into the back end of the truck while attempting to pass it when both were going in the same direction. Plaintiff was thrown out and sustained injuries.

Defendant Mrs. Enrico's testimony was that at approximately 200 feet from the intersection she decided to pass the truck, started to turn out, and that the truck driver, without any signal, crossed over the center line and the accident happened. Counsel for plaintiff stated that at the trial Mrs. Enrico said she remembered nothing; that she made a very poor witness; and that her story was impossible because the accident could not have happened in the manner she indicated.

Counsel for plaintiff further stated that defendants' car 'laid down heavy skid marks for 144 feet'; that the driver thereof struck the truck and defendants' car traveled about 30 feet more before it came to a stop; that the police cited her for speeding and passing a car within 100 feet of an intersection, and that she pleaded guilty to both charges.

Some testimony was placed before the jury in reference to insurance and Workmen's Compensation Liability Insurance payments about which plaintiff's counsel objects. It is further claimed that the trial court erred in giving certain instructions. There is indication that the jury was confused as to the result of its verdict when it retired from the jury box. It was conceded that plaintiff was not charged with any contributory negligence on his part. The truck driver was not made a party defendant.

No objection was made at the hearing about the assigned judge deciding the motion at the time indicated upon representations made by the respective counsel as to what the evidence of the respective parties showed, and no request was made at that time for a continuance so that the reporter might attend or read his notes or any part thereof under section 660 of the Code of Civil Procedure.

Counsel for defendants then stated that he was somewhat in the same position of the assigned judge in arguing the facts on the motion. He claimed that the truck driver pleaded guilty to operating without a driver's license, and making an illegal left-hand turn. He referred to the diagram in evidence and stated he had reviewed his file in respect to the evidence and that he had a partial transcript of the evidence pertaining to the cross-examination of plaintiff; that although he was not present at the trial 'I have had the advantage as Your Honor has in reviewing the trial, reviewing my file on it * * *'; that moving pictures were taken of plaintiff by defendants in reference to his claimed disability in performing his labors, and that he was 'going to submit it on that basis'. Thereafter the motion was granted.

On this appeal, defendants' ...