Dermer v. Pistoresi

California Court of Appeal Nov 1, 1930 No. Docket No. 4006.Published

Before: Thompson

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Holding. The court held that Section 141% of the California Vehicle Act is not retroactive and therefore does not apply to accidents occurring before its enactment, and that counsel's incidental disclosure of indemnity insurance during cross-examination for impeachment purposes did not constitute prejudicial misconduct.

Issues

Whether Section 141% of the California Vehicle Act of 1929 applies retroactively to guest injury claims arising from accidents occurring before its effective date.
Whether the disclosure of the defendants' indemnity insurance during jury selection and witness cross-examination constituted prejudicial misconduct requiring reversal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It now appears to be the settled law of California that section 141% of the California Vehicle Act is not retroactive in its application”

“A plaintiff may not be deprived of the benefit of legitimate rebuttal to a pretended defense against a charge of negligence even though it may disclose the fact that a surety company is interested in the outcome of the action.”

[312]

MR. JUSTICE THOMPSON (R. L.) Delivered the Opinion of the Court.

This is an appeal from a judgment rendered upon a verdict of $3,500 secured as damages on account of the death of plaintiff’s son, which resulted from an automobile casualty while the boy was riding in the machine as a guest.

On November 25, 1928, at 7 o’clock P. M., Simon Dermer, Jr., the son of plaintiff, aged nineteen years, was riding as a guest with the defendant August Pistoresi along the highway near Madera, in the Chevrolet automobile belonging to the defendant Creuffe Pistoresi. The machine was running at the rate of speed of about 30 miles an hour. It was dark. The headlights illuminated the highway 150 feet ahead of the car. Reaching a turn in the roadway, which the driver failed to see, the machine ran into the embankment at the side of the highway and overturned. Regarding this inattention and failure to observe the curve in the roadway the driver testified: “I could have seen it, but I didn’t see it. ... I knew it was there, but I did not know I was there with the car yet.” Simon Dermer, Jr., was caught beneath the overturned car and sustained fatal injuries, from which he died two days later. An action for damages was instituted. A jury trial resulted in a judgment of $3,500 in favor of the plaintiff.

A reversal of the judgment is sought upon two grounds. It is asserted that section 141% of the California Vehicle Act of 1929 is retroactive in its effect and that it, therefore, precludes the recovery of damages from the owner or driver of a machine for death or injury of a guest who was riding therein, except upon proof that the death or injury was sustained as a result of the “intoxication, wilful misconduct or gross negligence” of the owner or driver of the vehicle. It is also claimed the attorney for plaintiff was guilty of prejudicial misconduct by disclosing to the jury in the course of the trial the fact that the defendants were protected against loss from such an accident by indemnity insurance.

It now appears to be the settled law of California that section 141% of the California Vehicle Act is not retroactive in its application, and that the former doctrine of negligence applies to all actions for damages for death or injury of a guest while riding in an automobile which

[313]

Dermer v. Pistoresi

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