Connor v. Johnson

MILLER, J.,

pro

tem.

This is an appeal from a judgment of nonsuit. At the outset objection is urged to the consideration of appellant’s brief upon the ground that, inasmuch as appellant relies upon a typewritten transcript, and is required by section 953c of the Code of Civil Procedure to print in his brief, or in the printed supplement thereto, sufficient of the record to justify a reversal of the judgment or order appealed from, and, appellant having failed to comply with the requirement, this court should decline to consider the brief of appellant. And while it is true that under the rule and under the circumstances herein related, this court might, with propriety, decline to consider the brief, we have, nevertheless, read the entire record to the end that we may pass upon the merits of the case, it appearing to be a ease that should properly be determined upon its merits.

It appears from the record that on September 14, 1931, appellant and respondent were on their way from Marysville to Chico. Before starting on the trip, appellant, who was to be respondent’s guest, went to the home of respondent in preparation for the trip. There they each had' two highballs composed of whisky and ginger ale. That was the extent of the liquor that appellant had, and that was all the liquor that he saw respondent consume. They left Marysville at between 6 and 6:30 P. M. in respondent’s automobile, which respondent was driving. Shortly after

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leaving Marysville, appellant noticed that respondent was driving recklessly, was going at about seventy miles an hour, and had a drowsy, groggy appearance, and appellant became satisfied that respondent was intoxicated. Appellant became alarmed, and before they had proceeded a great distance turned off the ignition on respondent’s automobile, and when the car came to a stop, respondent got out to see what was the matter with his engine, whereupon appellant moved over into the driver’s seat and told respondent that the car was all right, that he had cut off the ignition, whereupon respondent demanded to know what the big idea was, and appellant, not wishing to anger respondent, stated that he had never driven that machine and wanted to operate it, to which respondent consented. As respondent walked around the machine to the right side, he held onto the machine, which apparently prevented him from staggering. For the next twenty-five or thirty minutes appellant drove the automobile, and respondent appeared to be asleep, but, upon awaking he complained of the slowness of the speed at which they were traveling (they were then making forty-five miles an hour), declared they would be late, and that he could coax more miles than that out of the car, and that he would drive his own machine, whereupon appellant, not wishing to start an argument with respondent, who seemed inclined to be quarrelsome, surrendered the wheel and they proceeded on their trip with respondent driving fast, whereupon appellant told him not to drive so fast, and then devoted himself to memorizing a song he was preparing to sing at a meeting the two of them were to attend at Chico, . .en a sudden lurch of the machine attracted appellant’s attention, and the ear rolled over several times, and both he and the respondent were injured. Appellant brought suit against respondent for the injuries he sustained as the result of the accident. He testified at the time he surrendered the wheel to respondent he thought “he was perfectly all right”. But notwithstanding his testimony that he thought that he was “perfectly all right” when he relinquished the wheel to him, he testified, “I would never have got in the car when he took the wheel, only I was under the impression if anything went wrong I could stop the car as I did the first time.”