Hooper v. Byron Jackson Pumps, Inc.

BISHOP, J. pro tem.* The issue on this appeal is quite simple: Did the trial court err in reading to the jury sections 525.1 and 551 of the Vehicle Code? The facts of the ease did not bring those sections into play, and we have concluded that, in this particular case, the error in giving the instructions was prejudicial.

Before dealing with the question of the instructions we dispose of respondents’ contention that plaintiff’s appeal should be dismissed because she failed to comply with rule 4(b), Rules on Appeal. This was an action, tried before a jury, for damages resulting to the plaintiff personally when her automobile was bumped by one driven by the individual defendant in the business of the defendant corporation. The jury returned a verdict in defendants ’ favor, and a judgment that plaintiff take nothing followed. Plaintiff filed a notice of appeal from the adverse judgment, together with a request “. . . for a partial reporter’s transcript of the proceedings on April 6, 7, 8 and 9, 1959 during the trial, which shall include everything except the medical testimony of plaintiff’s doctors and the argument of counsel at the conclusion of the trial. A transcript of the proceedings wherein the jury requested additional instruction after beginning deliberation, is explicitly requested, including all the remarks of the Court and counsel.”

This request for a partial transcript was not accompanied by a statement of the points to be raised by the plaintiff on appeal, a condition imposed by rule 4(b) on the right to order a partial transcript. The defendants objected to a partial transcript, without a statement of the points to be raised; their objection ivas sustained by the trial court; plaintiff filed, August 6, 1959, Points to be Raised on Appeal. Whether these points are sufficiently sharp to satisfy the purpose of the rule, we need not determine, for the defendants did not, as the respondents did in Haskins v. Crumley (1957), 152 Cal.App.2d 64 [312 P.2d 276] and in Marshallan Mfg. Co. v. Brack (1959), 172 Cal.App.2d 22 [342 P.2d 26], move for a dismissal of the appeal. The appellate court, in those cases, indicated that a dismissal would be ordered unless the appellant took advantage of the opportunity given, to file the missing statement. Now that the briefs are in, in this case, the defendants are more fully informed as to the points the plaintiff “intends” to present than they would be if the statement required by the rule had been furnished. Beyond [653]doubt the 300-page reporter’s transcript is quite adequate fairly to present the points that are raised, without the doctor’s testimony or the argument of counsel to the jury. If the latter would have been of any benefit to the defendants, they should have moved to obtain it within a reasonable time after the filing of plaintiff’s opening brief, March 17, 1960. This is not a game in which a party is to be declared “out” just because he fails to touch a base as he passes.