Summary
In Luscher v. Jones, supra, and Daniel v. Jones, supra, the decisions do not indicate whether the question of the prior judgment's effect was presented to the trial court, and it cannot be "presumed," as respondent suggests, that the issue was properly presented in the lower court.
Summary of this case from Ponce v. Tractor Supply Co.Opinion
Docket No. 8966.
July 24, 1934.
APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. W. Turney Fox, Judge. Order reversed and judgment modified.
The facts are stated in the opinion of the court.
Carpenter, Babson Fendler, Ingle Carpenter, A.H. Blum and Harold A. Fendler for Appellants.
W.I. Gilbert for Respondent.
MEMORANDUM CASE.
This case was tried with the case of Daniel v. Jones, this day decided ( ante, p. 145 [ 35 P.2d 198]), and the two were submitted to this court on one set of briefs.
Plaintiff is the daughter of Helen Vera Daniel, who was killed in the same accident with Erle P. Daniel, her husband. This action is brought to recover damages for the death of plaintiff's mother. The original complaint was by plaintiff against defendant Jones and defendant corporation, but a nonsuit having been granted as to the corporation, a verdict for $3,000 was returned against Jones and judgment entered thereon. Thereafter plaintiff, both as administratrix of her mother's estate and individually, filed an amended and supplemental complaint against defendant corporation only. Upon trial of the case the jury returned a verdict for plaintiff individually for $3,000 and for her as administratrix for $1125. Defendant corporation made a motion for new trial which was granted on grounds other than the insufficiency of the evidence. From the order granting such motion plaintiff appeals.
[1] Our views on the points urged by respondent as to erroneous instructions, improper rulings and legally insufficient evidence are identical to those in Daniel v. Jones, supra. As to the failure to join Jones as party defendant in the amended complaint, we must assume that the views of the jury as to the bases for the corporation's liability were the same here as in the other case it was trying, and the failure to join the defendant driver would be immaterial.
The order granting a new trial is reversed and the judgment is reduced to conform to the earlier judgment entered against the defendant Jones, to wit, to the sum of $3,000 in favor of plaintiff individually and nothing as administratrix.
Stephens, P.J., and Craig, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on August 23, 1934, and an application by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on September 13, 1934.
Shenk, J., and Spence, J., pro tem., voted for a hearing.