Worthington Corp. v. El Chicote Ranch Properties, Limited

• Decision Date: 23 October 1967
• Citation: 255 Cal.App.2d 316,63 Cal.Rptr. 203
• Court: California Court of Appeals Court of Appeals
• Parties: WORTHINGTON CORPORATION, etc., Plaintiff, Cross-Defendant and Respondent, v. EL CHICOTE RANCH PROPERTIES, LTD., etc., et al., Defendants, Cross-Complainants and Appellants. Civ. 813.

Page 203

63 Cal.Rptr. 203

255 Cal.App.2d 316

WORTHINGTON CORPORATION, etc., Plaintiff, Cross-Defendant and Respondent, v. EL CHICOTE RANCH PROPERTIES, LTD., etc., et al., Defendants, Cross-Complainants and Appellants.

Civ. 813.

Court of Appeal, Fifth District, California.

Oct. 23, 1967.

Allen & Fasman, by Michael J. Fasman, Beverly Hills, for appellants.

Young, Wooldridge, Paulden & Self, by Joseph Wooldridge, Bakersfield, for plaintiff-respondent.

CONLEY, Presiding Justice.

The failure of the appellants to furnish this court with a complete transcript of evidence to support the positions taken by them permeates the entire appeal. As developed during this opinion, if all of the evidence received by the trial court had been incorporated in the reporter's transcript, it is possible that a different view of one or more of the issues would have been developed to the extent of requiring a reversal of the judgment, but the failure of appellants to procure an adequate transcript makes requisite an affirmance.

Plaintiff pump company sued the ranch partnership, together with the general partners, in two causes of action. The first was on a specific written contract for the installation of a pump on the defendants' ranch in San Luis Obispo County; this count was dismissed on motion of appellants at the close of respondent's case on the ground that there had been a complete payment under the agreement alleged.

The second cause of action was a common count for goods, services and materials furnished by the plaintiff to the defendants at their request. The amount claimed to be due in the pleading was $12,562.75, plus interest at seven percent per annum from November 1, 1962, being for goods and services furnished while installing a pump for the development of a well on the San Luis Obispo property. The defendants filed a cross-complaint, which, in due course, was amended; the cross-complainants were 'The points sought to be raised by Appellants on this appeal are as follows:

Richard D. Walker, Jack O. Nutter, W.A.F.A. Corporation, and Owanu, Inc., as general partners of El Chicote Ranch Properties, Ltd. Negligence of the plaintiff and cross-defendant was alleged and damages in the sum of $36,301.15 were sought for loss of the well. The jury found in favor of plaintiff and against 'defendant, counter-claimant, and cross-complainant, El Chicote Ranch Properties, Ltd.,' for the amount of $9,566.84, this being the exact amount billed in detail by the plaintiff on one occasion. Pursuant to the requirement of section 664 of the Code of Civil Procedure, the county clerk, within 24 hours thereafter, filed a judgment based on the verdict for $9,566.84, plus costs in the amount of $282.60. Two days later, the trial judge filed a document entitled 'Judgment by Court Upon the Jury Verdict,' in which it was stated that the jury had rendered a verdict in favor of plaintiff in the amount of $9,566.84, and that judgment was granted to the plaintiff against the defendants for that amount, together with interest accumulated from November 2, 1962, in the additional amount of $3,063.60, and for costs. In connection with the appeal, the appellants did not request an entire reporter's transcript. On the contrary, although the case lasted several days, the only portion of the reporter's notes which the appellants sought to have transcribed were the 'oral proceedings [255 Cal.App.2d 319] had in the courtroom when the jury brought in an incomplete verdict on December 6, 1966.' At that time, the appellants complied with the requirement of rule 4(b) of the California Rules of Court by stating in their request for a partial reporter's transcript:

'1. The verdict is against the law, in that the Jury made no finding whatsoever on the Cross-Complaint and failed to make findings of any kind as to all of the Defendants to the Complaint.

'2. Prejudicial error occurred through misconduct of counsel for Plaintiff during argument to the Jury.

'3. The Court erred in awarding prejudgment interest, the only cause of action tried in this case being in Quantum Meruit.'

This reservation of points served only to keep open the contention of the appellants that the trial court erred in allowing interest, but obviously the reservation of the point did not serve to supply this court with evidence to establish the point.

The three major contentions made by appellants on this appeal are the three points quoted above.

One contention is that prejudicial error was committed when counsel for appellants accused certain witnesses for respondent of perjury; it is said by appellants that, in addressing the jury, the attorney for respondent expressed 'great indignation that counsel for appellants should impute perjury to the said witnesses,' and that after respondent's counsel had repeated the word 'perjury' for the third time, appellants' counsel objected, and the court instructed respondent's attorney to refrain from further remarks of such nature. The attorney for the appellants says, 'It was improper conduct and unmistakably an appeal to the passion and prejudice of the jury.' After the judgment was entered, Michael J. Fasman, attorney for defendants, filed an affidavit in which he stated that, as attorney, he had made fair comment to the jury with respect to the employer-employee relationship between the plaintiff and the witnesses, and that counsel for the respondent in rebuttal incorrectly said that Mr. Fasman had accused those witnesses of perjury. As already stated, there is no reporter's transcript, except for a small part of the proceedings which did not include the arguments of counsel at the trial.

We approve of what was said in Van Cise v. Lencioni, 106 Cal.App.2d 341, 349--350, 235 P.2d 236, 241:

'Appellants have not presented a proper record on appeal that will permit this court to consider this assignment of error. Under the Rules on Appeal it is incumbent The appellants next complain that the verdict did not cover the issues made by the counterclaim or by the amended cross-complaint and the answer thereto; they contend that in a case of this kind the jury must specifically find on each issue and allege that there is no finding at all relative to the cross-complaint. It is pointed out that the sheet of paper containing the verdict has a single caption and appellants complain that the court failed to find on material issues raised by any of the pleadings except the complaint and the

upon the appellant to present a proper record to the appellate court. The oral arguments are not included in the reporter's transcript unless specially requested. If counsel desire to urge error in the oral argument it is essential that he order the argument included in the transcript. In the absence of such a record it must conclusively be presumed that no error in the argument occurred. (Rule 52 of the Rules on Appeal; (Citations).) For these reasons, there being no proper record before us, this claimed error cannot be considered by this court.'

answer thereto. The verdict is as follows: 'IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF KERN

'WORTHINGTON CORPORATION, a corporation,

Plaintiff,

v.

EL CHICOTE RANCH PROPERTIES LTD., a corporation, et al,

Defendant.

No. 87683

VERDICT

'We, the jury impanelled to try the above-entitled cause, find in favor of the plaintiff, WORTHINGTON CORPORATION, doing business as WINTROATH PUMP COMPANY, and against the defendant, counter-claimant and cross-complainant, EL CHICOTE RANCH PROPERTIES, LTD., and assess plaintiff's damages in the amount of $9566.84.

'DATED: December 6, 1966.

'/s/ Joe Reynolds

Foreman'

Thus, in the verdict El Chicote Ranch Properties, Ltd. is particularly described as defendant, counter-claimant and cross-complainant, and it states that the jury finds against such partnership on all three specifications. This is a sufficient answer to appellants' claim. In paragraph II of the first amended cross-complaint for negligence filed by the general partners of this limited partnership, it is said:

'That cross-complainant is informed and believes and upon such information and belief * * *,'

obviously, thus showing that the cross-complaint itself contained, at times, a composite word standing for the limited partnership. Even though other paragraphs of the pleadings use the term cross-complainants in the plural, the first paragraph shows that the cross-complainants are the general partners of El Chicote Ranch Properties, a limited partnership, and have executed and published the certificate required in such circumstances by the Civil Code. Section 388 of the Code of Civil Procedure states that:

'When two or more persons, associated in any business, transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; and the judgment in the action shall bind the joint property of all the associates, and the individual property of the party or parties served with process, in the same manner as if all had been named defendants and had been sued upon their joint liability.'

Furthermore, no objection was made to the form of the verdict prior to its submission to the jury, although counsel for the appellants was shown the verdict form several days before the case was submitted to the jury, and there was no objection made by him to the use of this form or any of the others. No objection was made to the form of the verdict at the time the jury first returned to court with it or when the trial court again sent the body out to complete their verdict through the insertion of the amount of the award in the appropriate blank provided therefor. (Brown v. Regan, 10 Cal.2d 519, 524, 75 P.2d 1063.)

It is our view that the verdict included the adverse finding of the jury on the counterclaim and cross-complaint, as well as on the issues made by the...