Commercial Transfer Inc. v. Daigh & Stewart

BRUTON, J.,

pro tem.

This is a damage action which arose out of a motor truck accident. The trial was had before the court sitting without a jury, and from the court’s judgment for plaintiff and against defendant Lusk, the defendant Lusk has appealed.

The action came on for trial on October 6, 1937, at which time a jury was present. Upon objection by counsel for defendants Daigh and Stewart the jury was dismissed, the plaintiff having demanded a jury and posted his fees less than ten days before the date set for trial. Prior to the dismissal of the jury, counsel for defendant Lusk, who had made no demand for a jury, announced he was ready for trial. Upon the dismissal of the jury a continuance of the case was had on motion of counsel for Daigh & Stewart for reasons which are not here involved.

The cause next came on for trial on December 28, 1937. However, on November 15, 1937, the defendant Lusk filed his demand for a jury and posted the necessary fees. At the time of trial, that is, December 28, 1937, the court refused defendant Lusk’s demand for a jury, and the case proceeded before the court'.

Upon the conclusion of plaintiff’s case counsel for plaintiffs and defendants Daigh and Stewart stipulated judgment for Daigh and Stewart on plaintiff’s complaint, and for plaintiff on Daigh and Stewart’s cross-complaint, and further stipulated that no consideration had passed or was to be-passed in satisfaction of their respective claims or otherwise. Defendant Lusk then moved the court for a nonsuit, upon the denial of which the case proceeded against Lusk, resulting in judgment for plaintiff against Lusk for the injuries complained of.

Upon the conclusion of the trial defendant Lusk moved the court for leave to amend his answer to allege the stipulated judgment in favor of Daigh and Stewart, who were charged

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as joint tort-feasors with Lusk. The court denied the motion for leave to amend.

The facts as disclosed by the evidence are in substance as follows: A truck and semitrailer belonging to plaintiff, Commercial Transfer Incorporated, and driven by plaintiff Gar-man was traveling south at a lawful rate of speed on the Golden State highway in Merced County on March 27, 1937, at about 2 o’clock P. M., when it was passed by a car going in the same direction, driven by a Mr. Russell. After the Russell car had passed plaintiff’s truck it swung back to its right side of the highway, whereupon a car driven by defendant Lusk cut in ahead of the Commercial Transfer truck and took position between the truck and the Russell ear. At this moment Russell, having given the signal for a right-hand turn, proceeded to turn off the highway to the right. Lusk thereupon, without giving the signal required by law, and to avoid hitting the Russell car, suddenly brought his car nearly to a stop. Garman, the driver of the Commercial Transfer truck, upon seeing the Lusk car suddenly decrease speed, applied his brakes. Seeing that he was about to collide with the rear of the Lusk car and in order to avoid doing so, Garman turned his truck sharply to the left, there being a bridge abutment on the right, and crossed the highway and entered an orchard on his (Garman’s) left side of the highway. While this was going on, a truck belonging to the defendants Daigh and Stewart was approaching at a lawful rate of speed upon his right-hand side of the highway from the opposite direction. As the Commercial Transfer truck passed across the highway and into the orchard the Daigh and Stewart truck collided with the rear portion of the Commercial Transfer semitrailer. The two trucks were partially destroyed by fire; the driver of the Daigh and Stewart truck was killed and Garman was injured.