Sholar v. Barker

HERNDON, J.

This appeal is taken by defendant from a judgment entered in favor of plaintiff in a wrongful death action following a non jury trial. Findings of fact and conclusions of law were waived and no motion for a new trial was made. Appellant presents only two assignments of error for our consideration: (1) that the evidence does not support the judgment; and (2) that the judgment is excessive in amount.

The second assignment of error deserves no consideration for the reason that it long has been a settled rule in Cali

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fornia that the point that damages are excessive cannot be raised for the first time on appeal, but must be presented to the lower court on a motion for a new trial.

(Bate

v.

Jolin,

206 Cal. 504, 508 [274 P. 971] ;

Reid

v.

Gillespie,

87 Cal.App.2d 769, 771 [197 P.2d 566], and

Jenkins

v.

Dahnert,

202 Cal. App.2d 567, 568 [21 Cal.Rptr. 15].) It cannot be appellant’s contention that the issue he meant to raise is that no damage at all was shown by the evidence

(Roche

v.

Casissa,

154 Cal.App.2d 785, 787 [316 P.2d 776]) for the testimony set forth in his own brief on this subject indicates that evidence of substantial damage was presented.

Turning then to appellant’s assignment regarding the sufficiency of the evidence to support the judgment in favor of respondent, the record reveals that this action was brought by respondent following the death of her son. The evidence shows that deceased was a passenger in an automobile driven by appellant. At approximately 11:30 p. m. on April 30, 1959, appellant’s car was observed on Highway 101 near Oxnard, California, traveling 80 miles per hour and following “bumper to bumper” behind a car driven by a friend of appellant. In this fashion the two cars passed other vehicles on the highway on both the left and right-hand sides in the two southbound lanes of the highway until appellant’s car went out of control, skidded for some considerable distance on the highway and on the dirt divider strip, rolled over, and finally came to rest right side up. Appellant had been drinking.