140 Cal. App. 103 | Cal. Ct. App. | 1934
From a judgment entered on the verdict of a jury against defendants Pickwick Stages System and Pacific Greyhound Lines, Inc., in favor of plaintiff for damages for personal injuries alleged to have been sustained by her while traveling as a passenger on a stage owned and operated by defendant Pickwick Stages System, both defendants have appealed.
Plaintiff and her husband boarded a.stage of defendant Pickwick Stages System at Los Angeles at about 12 P. M. on October 24, 1929, for El Centro. The stage went over what is known as Valley Boulevard, through Pomona, Ontario and Riverside and then over what is called the “Jack Rabbit” trail to Banning and on to Brawley, making many stops along the way. About two miles south of Brawley the driver, without any warning or indication of previous sickness observed by any of the passengers, turned around with a look of pain on his face, threw up his hands and fell over in the seat unconscious. The driverless vehicle angled from the right to the left side of the highway, off the road into a shallow ditch and up on the side of an embankment, where it turned over on its right side. Defendants in their answer denied negligence and pleaded unavoidable accident as a defense, but the jury evidently found against defendants on both issues.
It is true that such failure to deny admitted the definite allegation that said Pickwick Stages System transferred all of its assets to the Pacific Greyhound Lines, Inc., but from such admission' alone an agreement to assume and paj> all of the existing and contingent liabilities of the Pickwick Stages System cannot be implied. (Chase v. Michigan Tel. Co., 121 Mich. 631 [80 N. W. 717]; Luedecke v. Des Moines Cabinet Co., 140 Iowa, 223 [118 N. W. 456, 32 L. R. A. (N. S.) 616].) It is urged, however, that the rest of the allegation, “and assumed all of the existing and contingent liabilities of said Pickwick Stages System”, is an express allegation that the defendant Pacific Greyhound Lines, Inc., assumed such liabilities. The allegation does not so read. The subject of the latter phrase is “Pickwick Stages System”, and the allegation is that such corporation assumed the liabilities of said Pickwick Stages System, not that the Pickwick Greyhound Lines, Inc., assumed them. We may admit that the pleader intended to say that the latter corporation made such assumption and agreement, and that as it stands the allegation is nonsensical, to say the least.
Unquestionably a quasi-public corporation cannot transfer its franchises and assets without legislative authority so to do (City of South Pasadena v. Pasadena Land & Water Co., 152 Cal. 579, 583 [93 Pac. 490]), but such question is not involved here. Such a transfer might be void, but no agreement could be implied therefrom that the indebtedness of the transferor was assumed by the transferee. Nor would such assumption be implied even if the facts showed that the assets in the hands of the corporation receiving them remained subject to the debts of the transferor.
Certain testimony to the effect that the driver had been drinking from two to four hours prior to the time the stage departed and that certain witnesses smelled the odor of liquor on his breath immediately after the accident was admitted over the objection of defendants. There was no evidence at all that the driver was under the influence of intoxicating liquor, and the manner in which the evidence shows the stage was handled, not only on the level pavement but “up over the hill” on the “winding, curving piece of highway” known as the “Jack Rabbit trail”, conclusively opposes any such suggestion. In our opinion, however, no prejudice could have resulted in the face of such evidence and by reason of evidence hereinafter discussed.
The amended complaint having alleged negligence in general terms, it was perfectly proper, under the circumstances of the accident, for the court to give instructions to the jury embodying the doctrine of res ipsa loquitur.
In view of the fact that one day’s jury fee was not deposited ten days prior to the date set for trial, as required by section 631 of the Code of Civil Procedure, it is contended that trial by jury was waived and that the court had no discretion to order it. Section 7 of article I of the Constitution provides that the right of trial by jury shall be secured to all and remain inviolate, “but may be waived in civil actions by the consent of the parties, signified in such manner as may be prescribed by law”. The ten last quoted words “look to actual legislation upon the subject” (Exline v. Smith, 5 Cal. 112), and in section 631 of the. Code of Civil Procedure the legislature has set out the manner in which
In view of the foregoing it is our opinion that the purpose of section 631 of the Code of Civil Procedure is to grant the parties the right to waive a jury trial and not to impose conditions constituting an irrevocable waiver, and that the trial court may use its discretion in determining whether under the circumstances a waiver should actually be implied. No presumption exists that prejudice resulted from trial before a jury (Doll v. Anderson, supra), and a motion for new trial based on this contention was denied by the judge who saw the witnesses, heard the evidence and observed the jury, and we find nothing in the record indicating such prejudice.
A more serious question is whether or not the verdict of $10,000 was the result of passion or prejudice on the part of the jurors, rather than the exercise of an intelligent discretion which finds support in the evidence. Plaintiff did
Dr. Ledyard, a witness for defendants, who examined plaintiff November 4, 1929, testified that her health on that date was “comparatively good to what it is now”—a little more than two years after the first examination. There was other evidence conflicting’ seriously with some of the foregoing which indicated that the injuries were not nearly as serious as the above seems to show, and that plaintiff’s condition at the time of trial, when apparently she had to be helped from the courtroom into the judge’s chambers so that an expert could examine her at the request of defendants, was not due to the injuries resulting from the accident but to arthritis. In our opinion, however, such conflict was for the jury to determine and it did so adversely to such conflicting evidence, and a motion for new trial was denied by the judge who heard the evidence and saw the witnesses, to whom such adverse contention was addressed in the first instance.
In view of such evidence we cannot say that the judgment rendered is “so plainly and outrageously excessive as to suggest, at the first blush, passion or prejudice or corruption on the part of the jury” which we understand is the test to meet before an appellate court can hold the action of the trial court in denying the motion for a new trial to be erroneous and set aside the verdict of a jury. (Hale v. San Bernardino Valley Traction Co., 156 Cal. 713 [106 Pac. 83].)
Judgment reversed as to appellant Pacific Greyhound Lines, Inc., and affirmed as to appellant Pickwick Stages System.
Craig, Acting P. J., and Desmond, J., concurred.