Burnett v. Reyes

118 Cal.App.2d Supp. 878 (1953) HOWARD E. BURNETT, Appellant,

v.

GERARD F. REYES et al., Respondents.

California Court of Appeals.

Apr. 23, 1953. J. R. Lamoreaux for Appellant.

Fred Fischer and Vincent P. DiGiorgio for Respondents.

LAMBERT, P. J.

In this case the appellant brought an action against the above-named defendants, respondents here, seeking to recover damages to his automobile caused by running into a cow which had strayed on United States Highway 399 in Kern County. The complaint was cast in two counts: the first count alleged negligence in all of the defendants except Brown and Smith in that they negligently maintained two head of cattle and permitted them to stray on the highway; the second count alleged that Brown and Smith had been negligent in burning a fence enclosing the pasture in which the cattle were kept and allowing them to escape from pasture and wander unattended upon said highway. The defendants denied negligence and also pleaded contributory negligence on the part of plaintiff. While it is not material here the first group of defendants cross-complained against the second group of defendants. The decision was against the plaintiff and in favor of all the defendants.

[1] It may be worth-while to state a few of the fundamental rules which govern this court in passing on appeals brought here. In the first place in this case findings of fact were waived (Code Civ. Proc., 632), and though the exact basis upon which the case was decided for the defendants does not appear in the record adequate proof under any theory would be sufficient as it must be assumed when findings are waived that all issues are resolved by the trial court in favor of respondent. (U Drive & Tour, Ltd. v. System Auto Parks, 28 Cal.App.2d Supp. 782 [71 P.2d 354].) [118 Cal.App.2d Supp. 880]

[2] The consideration of an appeal from the municipal court by the appellate department of the superior court is governed by exactly the same rules that control appeals from the superior court to the Supreme Court and the District Court of Appeal. The appellate court has no power to weigh conflicting evidence to determine the credibility of the witnesses or decide upon which side the evidence preponderates. It is also elementary that evidence in such circumstances must be viewed in the light most favorable to the respondent, and the respondent is entitled to the benefit of all reasonable inferences in his favor (Hamilton v. Pacific Elec. Ry. Co., 12 Cal.2d 598 [86 P.2d 829]). [3] It is not necessary to recite any of the evidence. We have read the record and of course the burden was upon the plaintiff to prove his case by preponderance of the evidence, and the burden was upon the defendants to prove contributory negligence by preponderance of the evidence--and preponderance of the evidence means that the greater probability lies in favor of the decision. Section 423 of the Agricultural Code provides among other things. "In any civil action brought by the owner, driver or occupant of a motor vehicle, or by their personal representatives or assignees, or by the owner of live stock, for damages caused by collision between any motor vehicle and any domestic animal or animals on a highway there is no presumption or inference that such collision was due to negligence on behalf of the owner or the person in possession of such live stock. (Enacted 1933: Amended by Stats 1935 ch 265, 1, p 951)." Therefore, the burden was upon the plaintiff to prove his case and he also had to prove it without the benefit of any inference of negligence, and if the evidence, contradicted or uncontradicted, supports the judgment, the judgment must be affirmed.