Roth v. Keene

• Decision Date: 07 December 1967
• Citation: 256 Cal.App.2d 725,64 Cal.Rptr. 399
• Court: California Court of Appeals Court of Appeals
• Parties: Olga ROTH, Plaintiff and Respondent, v. Robert L. KEENE, doing business as Silverlake Termite Control Company, Defendant and Appellant. Civ. 31262.

Page 399

64 Cal.Rptr. 399

256 Cal.App.2d 725

Olga ROTH, Plaintiff and Respondent, v. Robert L. KEENE, doing business as Silverlake Termite Control Company, Defendant and Appellant.

Civ. 31262.

Court of Appeal, Second District, Division 1, California.

Dec. 7, 1967.

Joseph W. Jarrett, Frank W. Woodhead and Henry F. Walker, Los Angeles, for appellant.

Brody & Grayson, Los Angeles, for respondent.

FOURT, Associate Justice.

This is an appeal from a judgment in favor of plaintiff in an action for personal injuries.

Plaintiff instituted this action against several defendants. A motion by Keene doing business as Silverlake Termite Control for a directed verdict was denied. A 10-to-2 jury verdict was returned in favor of plaintiff against Keene and against Donald Gurwell, doing business as A-1 Fumigating Company, and against plaintiff in favor of defendant, Beller. Judgment on the verdict was entered March 31, 1966. Keene filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. A new trial motion was ordered granted unless plaintiff consented to a remission of all damages in excess of $4,500 and was ordered denied if such consent be filed. Within the time prescribed plaintiff filed her consent to such remission and Keene's new trial motion was denied. Keene appealed from the judgment, the denial of his motion for judgment notwithstanding the verdict and the denial of this motion for a new trial. No appeal was taken by plaintiff from the judgment in favor of defendant Beller. No appeal was taken by defendant Gurwell from the judgment in favor of plaintiff.

The facts are set forth in appellant's brief in considerable detail and length. Under the circumstances we see no need to give more than a brief idea of the facts as recited in the brief. Mrs. Roth was injured on Saturday, June 30, 1962, while hanging some clothing in a closet of an apartment into which she was moving when she stepped into a trap-door hole in the closet floor. The lid or cover of the trapdoor was leaning against the wall of the closet.

Keene had done some maintenance work on the premises; however the trap-door lid, or cover, was in place over the trap-door hole as of June 29, 1962, and Keene had completed his work on the premises. Apparently after Keene's work was finished the fumigator, Gurwell, came to the premises on June 29, 1966, to do his work. There was no agency relationship between appellant and any other defendant to the action. As stated in appellant's brief, 'In short, there is no evidence of any negligence, personal or imputed, on the part of appellant Keene proximately causing respondent's injury' and 'From the facts heretofore stated, it is seen that plaintiff's action is based upon the claim that the lid or cover of the closet trap-door negligently had been removed os as to leave the hole uncovered and that as a proximate result she received injury when she fell in the uncovered hole. Yet, there is no evidence upon which to impose legal responsibility upon appellant for the condition which thus existed.' Further, the brief sets forth, 'He (appellant) completed the portion of the work he was able to do by June 26, 1962, prior to the June 30th accident. There is no evidence that appellant thereafter engaged in any work on the premises either personally or through anyone for whom he could be vicariously liable. The burden rested on plaintiff to establish otherwise, if such be her claim.'

The trial judge refused to give an instruction ¹ submitted by appellant. Appellant now urges that the jury was confused as to the law with reference to appellant's responsibility and that the giving of the instruction would have settled the confusion under which the jury was laboring.

Respondent has not seen fit to submit a brief in this case. The clerk of this court, pursuant to Rule 17(b) of the Rules on Appeal, notified respondent, in effect, that the case would be submitted for decision on the record, and on the appellant's opening brief, unless respondent filed a brief. No brief has been forthcoming.

This court said in Mann v....