Harlan v. Taylor

STURTEVANT, J. The plaintiff, as the surviving mother of Jessie Slone, commenced an action against the defendant to recover damages for the injury and death of her daughter while riding in an automobile owned by the defendant. The jury returned a verdict in favor of the defendant, and from the judgment entered thereon the plaintiff has appealed.

On the eighth day of September, 1930, Jessie Slone and the defendant Alice Taylor left Oakland in a Ford coupe intending to go by Dublin Pass to Modesto. At a point between Livermore and Dublin the automobile left the highway, ran across a ditch and turned over. As a result of the accident Jessie Slone was killed. The plaintiff al-[32]legecl that her daughter was riding as the guest of the defendant and that the defendant by gross negligence and wilful misconduct so operated the automobile that the accident occurred. The defendant in her answer denied the allegations about the operation of the automobile by her and affirmatively alleged that at the time of the accident Jessie Slone was doing the driving and that the defendant had no control over the automobile. During the trial the respective parties introduced evidence on the issues so framed.

After the jury had retired to deliberate upon its verdict the trial court took up the trial of another action. In about an hour the jury called the bailiff and directed him to notify the trial court that the jury desired additional instructions. The court sent word back that it was engaged in the trial of another case and would comply with the jury’s request as soon as convenient. In a few minutes the bailiff returned, stating that the jury had reached a verdict. Soon thereafter the jury was called in. Neither the court nor counsel adverted to the request for additional instructions, but the court proceeded in the usual manner to receive and have recorded the verdict of the jury. In her first point the plaintiff calls attention to the foregoing proceedings and predicates thereon prejudicial error. We think that the point has no merit. When the jury was brought in and before it announced its verdict, if the plaintiff considered that additional instructions should be given the plaintiff should have made-the point at that time. It could then have been ascertained whether the jury still desired the additional instructions or had abandoned its request therefor. In that manner the trial court could have cleared the record of any possible claim of error. Under the facts we think the irregularity, if any, was waived by both parties. (Murphy v. Zwieg, 100 Cal. App. 266 [279 Pac. 1062].) But the plaintiff says that case involved misconduct in the argument of counsel. That is true, but the principle involved in that case is the same as in this case— if error occurs, or is about to occur, in the trial of an action, he who would claim error on appeal must first call the matter to the attention of the trial court.