Armer v. Dorton

California Court of Appeal Mar 11, 1942 No. Civ. 2674Published

Before: Schottky

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Holding. The court held that the defendants' denial of the alleged damages for loss of use constituted a negative pregnant, thereby admitting the value of the loss, and that the evidence supported the finding of concurring negligence regarding the speed of the vehicle.

Issues

Whether a denial of a specific sum of damages in an answer constitutes a negative pregnant admitting any lesser amount.
Whether the evidence supported a finding of concurring negligence based on the speed of the vehicle at a blind intersection.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“Under the authorities it must be held that a denial in such form is a negative pregnant, so far as the value of the loss of use is concerned, and that appellants’ answer must be taken as an admission that the reasonable value of the loss of use was any sum less than $105.”

“the trial court was certainly justified in holding that the excessive speed at which appellant Knafla was traveling proximately contributed to the collision which resulted in the rear of the truck striking respondent’s automobile”

[414]

SCHOTTKY, J. pro tem.

In an action by respondent against defendant Dorton and defendants and appellants Knafia and Mohawk Petroleum Corporation, respondent recovered judgment against all three defendants for damages to his automobile and for the loss of the use thereof. Appellants appeal from such judgment.,

Truxton Avenue, in Bakersfield, runs east and west and contains in the center a parkway protected by a cement curb. The parkway is 25 feet 6 inches wide and the pavement on each side is 28 feet 8 inches wide. B Street runs north and south and is 54 feet 10 inches wide. The parkway on Truxton Avenue does not extend to the extended curb line of B Street but stops 14 feet from it on each side. The parkway is grown up with trees and shrubs and the intersection is a so-called "blind” intersection.

According to the evidence, appellant Knafia was operating the truck of appellant Mohawk Petroleum Corporation easterly along Truxton Avenue, and defendant Dorton was operating his automobile in a westerly direction on said avenue. Respondent’s automobile was parked at the south curb of Truxton Avenue, close to the corner of B Street and in front of Mercy Hospital. As appellant Knafia was proceeding across the intersection of B Street and Truxton Avenue, the front of defendant Dorton’s automobile came in contact with the right rear side of the truck, just ahead of the rear wheels. As a result of the impact the driveshaft and brake line controlling the hydraulic brakes on the truck broke and the rear of the truck swung around to the south in an arc and before it came to rest it struck the parked automobile of respondent, causing damage to it.

The trial court found that the damage to respondent’s automobile was caused by the combined and concurring negligence of defendant Dorton and appellant Knafia, and awarded respondent judgment against all three defendants for $312.58 damages and $105 for loss of the use of the automobile.

Appellants contend that there is no evidence supporting the judgment in any sum for the loss of the use of respondent’s automobile. It must be conceded that the only evidence in the record on this point, not stricken out by the trial court, was that respondent had to travel 39 miles to and from work each day, that he was deprived of his automobile for six weeks while it was being repaired, that he

Armer v. Dorton

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