Silva v. Market Street Railway Co.

DOOLING, J. pro tem. This is an appeal from a judgment for defendants entered notwithstanding the verdict of a jury in favor of the appealing plaintiffs. The appeal is presented by bill of exceptions and respondents claim that this court cannot consider the sufficiency of the evidence because the bill contains no specification wherein the evidence is insufficient to support the decision. The rule is settled in this state that an error in granting a nonsuit is an error of law which may be reviewed on appeal from the judgment when presented by hill of exceptions without any specification of insufficiency of the evidence in the bill (Donahue v. Gallavan, 43 Cal. 573, 574; Hammond v. Wallace, 85 Cal. 522 [24 Pac. 837, 20 Am. St. Rep. 239] ; Barfield v. South Side [799]Irr. Co., 111 Cal. 118 [43 Pac. 406] ; Martin v. Southern Pacific Co., 150 Cal. 124 [88 Pac. 701] ; Beeson v. Schloss, 183 Cal. 618 [192 Pac. 292] ; Western Calif. L. Co. v. Welch, 41 Cal. App. 435 [183 Pac. 169].) An appeal from a judgment notwithstanding the verdict presents the identical question which is presented by an appeal from a judgment of nonsuit (Ferran v. Southern Pacific Co., 3 Cal. (2d) 350 [44 Pac. (2d) 533] ; Card v. Boms, 210 Cal. 200 [291 Pac. 190]) and if the one presents only an error of law which may be inquired into without a specification of insufficiency so must the other. The dictum of this court in Fuchs v. Southern Pacific Co., 5 Cal. App. (2d) 409 [42 Pac. (2d) 704], stating a contrary conclusion, was announced without a consideration of the cases above cited. Nor is the objection open to respondents that the bill shows no exception to the judgment non obstante, since section 647, Code of Civil Procedure, provides that “the final decision in an action or proceeding ... (is) deemed to have been excepted to.” (Beeson v. Schloss, supra, p. 622.)

Appellants are the mother, father and sister of Joseph Thomas Silva, who was driving the automobile at the time of the collision out of which this action grows. The automobile belonged to the father, Antone P. Silva. Some space is devoted in the briefs to the question whether the negligence, if any appeared, of the driver would be imputed to the three plaintiffs. Since the submission of the case the Supreme Court has decided the case of Milgate v. Wraith, 19 Cal. (2d) 297 [121 Pac. (2d) 10]. Under the authority of that decision the negligence, if any, of the driver would be imputed to Antone P. Silva as owner of the car and the cause of action of his wife, Louise Silva, would apparently be subject to the same defense. (3 Cal. Jur. 10-Yr. Supp., pp. 542, 543.) This defense would not apply to Marie Silva who, from the evidence, was a mere guest and neither had any control over the driver nor interest in the automobile in which she was riding.