*1 alleged unfounded, the cause of action herein and it follows appellants’ respondents’ complaint demurrer to should sustained; any have bеen appear nor does it cause possibly could be stated in the here presented. situation respondents It attempted should be notеd not ‘‘ distinguish their from envelopes any order blanks and com- advertising handbill, mercial handbill distributed for merchandise,” purpose advertising any terms as these usеd in question; clear, the ordinance in it is both apparent from purpose respon- ordinance from allegations distribution, dents’ as to manner оf that such a distinction possible. is reversed and the cause remanded with
directions the court below to sustain the demurrer posed by thereupon judgment in defendants and enter of defendants. White, J.,P.
York, Respondents’ petition hearing Supreme Court April 16, 1942. was denied No. 12814. Feb. Dist., Second Div. Two. 1942.]
[Civ. BARR, MARY MOUNTJOY Respondent, v. JEANNETTE al., Appellants.
et *2 Thomas Appellants. F. MeCue for for Respondent. Paul Palmer (J. E.), pro tem. damages
STEPHENS J. Action resulting from collision between an driven Mountjoy and plaintiff, pedestrian. Defendant Holton C. Mountjoy is the husband of Jeannette Mountjoy, complaint alleges and the operating “that said automobile as aforesaid acting said agent as the and for on behalf the other defendants named herein.” only appearing served or herein than the driver is the husband-. trial was before jury without and resulted in defendants. statu- upon all the made a motion
Plaintiff testimony setting filed an affidavit tory grounds and аlleging witness, given by an absent which would have reciting cir- testimony, upon his relied had claiming “accident present and to be cumstances his failure guarded ordinary could not prudence the acci- testimony witness concerned against.” of this alleged agency or bearing upon itself and had dent liability. with connecting defendant husband other facts argument the court filed. After answering No by both trial, appeal is taken motion for new order. from this defеndants before transcript proceedings reporter’s is no
There therein an transcript which includes us, only the clerk’s but appears record it engrossed exceptions. Prom the 1939, 6:35 at about September occurred the accident Cahuenga Boule- Hollywood and m., at the intersection p. signal system Angeles. traffic city of Los vards signals “Go” at the operation was in southerly in the marked walk plaintiff started to appearing side wеst Hollywood *3 on the Boulevard pedestrian lane across the same at Cahuenga. of Defendant “ ” northerly signal, drove with the Go complianсe in and a left and made into the intersection Cahuenga Boulevard in lane, hesitating after the pedestrian turn the into of in front pass to automоbile a southbound section to allow of her bumper or fender the front pedestrian lane In her. the causing injuries of. plaintiff, the car struck plain- thаt neither the court found findings fact In of its that guilty negligence, of was driver nor defendant tiff unavoidable accident. anwas the collision driving her Mountjoy “was dеfendant state that personal her own busi- owned separately own complaint hereto- allegation in the the that ness,” and declare agency is untrue. to fore referred hearing on motion for new trial conclusion At the “he had come to the conclusion that judge announced the trial against law, in he had made an was decision that the bear, in of failing mind that the conduct in in law error entering plain- zone while pedestrian the in driver regardless of whether or not defen- located, tiff was there negligence per se on the plaintiff, constituted driver saw dant Thereupon the court caused a driver.” part of
43 for new trial minute be the motion entered move "upon the of intention to stated notice herein.” new filed granted upon specify As the order did not that it ground the the insufficiency of of evidence to sustain the (Code ground decision this eliminated. Civ. must of course be Proc., 657.) justified upon any sec. If can the be of in sus other stated notice of motion it must be the given by tained. While the reasons court its (Power Fairbanks, immaterial 146 Cal. 615 v. 1075]), does indicate that the court failed statement decision, to consider an this element that is vital to the amounts to error law. requires
Sеction of the California Vehicle Code right driver of yield way an of pedes automobile to using trian crosswalk, and defendant failure to driver’s do so negligence per (Nicholas Leslie, constituted se. Cal. ; Coursault App. (2d) 590, Schwebel, 761] App. 259, con this, Whether sidered with present case, all cirсumstances required holding against plaintiff court to Clearly, however, determine. it was an element to considered court, and its failure to sodo сonstituted error in justifying law the order granting a trial.
It is to be noted also that the affidavit based accident court; might was before the and while it not appear to this court that the dili shows gence on part to obtain presence or to witness seek continuance when he this did not appeаr, primarily was addressed court, to the discretion of the trial and action thereon will except not be disturbed where abuse of discretion is shown.
Aрpellants contend that event new trial as husband is not in view of the findings. Respondent court’s replies having that the court time wife, taken the view who driving, *4 not liаble, question of whether the husband share liability, her if liable, she Respondent had been became moot. is testimony indicating claims there car pur with сommunity chased community asset; funds a and was and also that the wife was an errand the benefit of husband the time of the accident. No further discussion aрpears in the briefs several upon based, is and there granting a new trial order
which the be deter- it can upon which before ns nothing the record husbаnd order, far as the so or not said mined whether or more of these upon any one concerned, was grounds. a new of an order presumptions
All are in it affirm to make appellant is trial, and the burden order by record atively appear proper Co., 118 Cal. Oil (Stoneburner v. is erroneоus. Richfield Conner, 12 Cal. 436].) In Laumann v. App. (2d) Pac. [5 from Power 1225], quoting App. (2d) 631 in favor of “We must assume Fairbmhs, supra, it was said: trial for a new motion court that the the action of trial legal upon some more was based one or the action showing made warrant sufficient us does regard The record before court in thereto. trial App. also, Nunes, 136 Cal. contrary.” See, Petr show the off Powell, Phillips v. 293], motion new trial is affirmed. order Moore, P. . judgment. Concurring (W. I cоncur J.),
WOOD by record that the shown appellants have not prosecuted was erroneous. appeal is from which the judgment and exceptions repeats bill for a new intention to move notice of sets insufficient) in wholly (which opinion my is an affidavit exceptions The bill of of the motion for new trial. support in which the “memorandum for decision” also contains the “unavoidable,” and the accident was judge states that new trial. judge upon grаnting the by made the statement any reference the evi- exceptions is barren of rulings the course during made dence may aught appears in the record For the trial. occurring during of errors because condition, being in this trial. The record course of affirm the order. open us other than to