Story v. Green

MELVIN, J.

Action for damages for personal injuries received by plaintiff, who, while riding a motorcycle, was struck by an automobile driven by defendant. From a judgment against him for the sum of three thousand dollars, defendant appeals.

Respondent moves the dismissal of the appeal upon the ground that the reporter’s transcript does not conform to rules 7 and 8 of this court and that the clerk’s transcript was not approved within the time prescribed by law. Although respondent’s motion to dismiss the appeal has been heretofore heard and denied, it is proper to say here that his objection

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is founded principally upon rule 7 as it was before amendment. The transcript was upon paper within the maximum size allowed by that rule. It is objected that the pleadings, proceedings, and transcript are not chronologically arranged in the transcript as required by rule 8. As the contested points on this appeal are few and simple, this fact causes us no inconvenience, and we do not feel that the ends of justice would be subserved by our refusal to consider the transcript. The appeal was taken under the “alternative method” as provided in sections 953a et seq. of the Code of Civil Procedure. Respondent denies the right of a judge to postpone the presentation of a bill of exceptions beyond the time prescribed by section 953a of the Code of Civil Procedure, but we think the contention is without merit. It was shown at the hearing below by the affidavit of a deputy county clerk (which document by direction of the judge was made a part of the transcript) that the Hon. K. S. Mahon, who had presided 'at the trial and who is not a resident of Los Angeles County, was not within said county when the notice required by law was given to the attorneys informing them that the transcript was ready for presentation to the judge who had tried the case. The affiant communicated with Judge Mahon, who appointed a day upon which he would be in Los Angeles and would take up the matter. The hearing was regularly continued by orders of the presiding judge of the superior court of Los Angeles County until the day thus indicated. This was the lawful and proper method of procedure.

The plaintiff called the defendant as a witness, and over objection examined him with reference to his wealth. This was a case where only actual damages resulting from negligence were alleged. There was neither averment nor testimony tending to establish fraud, oppression, or malice, and appellant insists that in such a case as this plaintiff may recover, if at all, only such an amount as will fairly and reasonably compensate him for the injuries received and the detriment caused to him as a result of the defendant’s negligence. It has long been established that the plaintiff may not in such a case introduce proof of his poverty, because the damages are not in any manner dependent upon his financial condition.