Pohle v. Bolinas Beach Realty Co.

THE COURT.

This is an action for damages for personal injuries sustained in an automobile accident. The jury rendered two verdicts, one in favor of the defendant

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Day’s U-Drive Autos, Ltd., and the other against its co-defendant Bolinas Beach Realty Co. for the sum of $17,500. Judgment was entered accordingly, and subsequently the trial court granted plaintiff’s motion for a new trial as to the defendant Day’s U-Drive Autos, Ltd. From the order made in that behalf the latter has appealed.

The action was instituted against Bolinas Beach Realty Co., appellant, Edward J. Goldstein and certain fictitious parties. The complaint alleged that appellant ivas engaged in the business of renting automobiles, and was the owner of the automobile involved in the accident, in which plaintiff was riding as a passenger for hire; “that on said 26th day of July, 1931, the

defendants

were operating said automobile on the Bolinas road and at a point about one-half way between Stinson Beach and Sausalito in the county of Marin . . . ; that at said time and place the

defendants

carelessly and negligently drove and operated said automobile over a cliff and thereby inflicted upon the plaintiff” certain personal injuries which are specifically described. (Italics ours.) Appellant and the realty company filed separate answers. In its answer appellant admitted that it was engaged in the business of renting automobiles, and that it was the owner of the automobile involved in the accident; also that plaintiff was riding therein as a passenger for hire. The remaining allegations of the complaint were denied. The realty company’s answer denied all of the allegations of said complaint, except the allegation that appellant was in the business of renting automobiles, which was admitted. On January 15, 1932, the action came on for trial. At that time Goldstein’s time for answering the complaint had not yet expired and consequently as to him the cause was not at issue. Nevertheless the parties proceeded with the trial, and, as stated, it resulted in the rendition of the two verdicts above mentioned. On the same date, January 15, 1932, judgment was entered accordingly. Eight days thereafter, and on January 23, 1932, Goldstein filed his answer wherein he denied the allegations of the complaint which are hereinabove quoted. On January 28, 1932, plaintiff served and filed its notice of motion for new trial, and on February 26, 1932, the motion was granted. Among the grounds urged for a new trial were irregularity in the proceedings of the court and on the part of appellant which