Leblond v. Townsley

CARY, P. J.

Plaintiff brought this action to recover damages caused by a collision between his automobile and one driven by defendant’s daughter. The answer pleaded contributory negligence. The court, sitting without a jury, found for plaintiff and gave him judgment in the sum of nine hundred dollars.

Appellant urges as grounds for reversal that the court made no finding on the issue of contributory negligence and that, under the evidence, the only finding possible would be one sustaining that defense.

Where such defense is interposed the court must make a finding with reference thereto.

(Tucker

v.

United Railroads,

171 Cal. 702, 704 [154 Pac. 835];

Maxwell

v.

Western Auto Stage Co.,

46 Cal. App. 548, 551 [189 Pac. 170];

Huntington

v.

Vavra,

36 Cal. App. 352, 355 [172 Pac. 166].) Respondent contends, however, that the findings as made fully cover the issue. Among the allegations in the complaint are the following: “That on said day the plaintiff, with due care and diligence and with due regard for the safety of others, was driving,” etc., and.“that while the plaintiff was so driving and operating his said Buick automobile at said time and place with due care and regard for the safety of others,” etc. Respondent argues that

[83]

since there is a general finding that all the allegations of the complaint are true, the contributory negligence of plaintiff is impliedly negatived, citing

Arrelano

v.

Jorgensen, 52