National Automoble Insurance Co. v. Cunningham

MARKS, J.

This is an appeal from a judgment entered in favor of defendant after the trial judge had granted her motion for a nonsuit, and also an attempted appeal from such order.

The rules governing the granting of a motion for non-suit are clearly set forth in 9 California Jurisprudence, 551, as follows:

“A motion for nonsuit involves the legal effect of admitted facts. When made at the close of plaintiff’s case it in purpose and effect operates as a demurrer to the evidence, and must therefore assume that all the evidence in favor of the plaintiff, if relevant to the issues, is true. It is, therefore, well settled that upon a motion for nonsuit, particularly when made at the close of plaintiff’s case, all the evidence must be construed most strongly against the defendant. Every favorable inference, fairly deducible, and every favorable presumption fairly arising from the evidence produced must be considered as facts in favor of the plaintiff. If the evidence is fairly susceptible of two constructions, or if either of several inferences may reasonably be made, the court must take the view most favorable to the plaintiff. All the evidence in favor of the plaintiff must be taken as true, and if contradictory evidence has been given it must be disregarded. On such motion the court has nothing to do with the question of the credibility of the witnesses, nor with the testimony tending to create a conflict.” (See,

Gomez

v.

Lindberg,

11 Cal. App. (2d) 730 [54 Pac. (2d) 1153].)

[830]

The sole question presented is this: Is there any substantial evidence or reasonable inferences to be drawn from such evidence that would support a judgment for plaintiff?

John Thurman Ellis was employed by Louis D. Mortora who was transacting business under the name of San Bernardino Provision Company with his principal place of business in the city of San Bernardino. On January 5, 1938, there had been a mistake in a delivery to a customer in Pomona and another in a delivery made in Glendora. Mortora sent Ellis to correct these mistakes. He left San Bernardino at about 5:30 that evening. He was killed while on this business of his employer in an automobile collision which happened at about 6 o’clock on the Valley Boulevard about seven miles east of Ontario and about twenty-two miles west of San Bernardino. The accident happened on the direct route between San Bernardino and Pomona which lies westerly from the former city.