Kenny v. Trust Oil Co.

SHINN, P. J. On December 20, 1954, Catherine Kenny, as assignee of Morse Erskine, Morse Erskine IT, and J. B. Tulley, lawyers and copartners, commenced an action to recover reasonable compensation for legal services rendered by them to defendants Trust Oil Company, Treasure Company, Samarkand Oil Company, and Empire Oil Company. At the first trial a judgment of nonsuit was granted in favor of defendants with the exception of defendant Trust Oil Company, for whom a favorable judgment was rendered. Plaintiff Kenny appealed from this judgment and this court in reversing the judgment for inadequacy of the findings to determine the issue of liability stated “The company [Trust] does not deny that the attorneys rendered substantial services. It only contends that they were rendered with an understanding that they were to be gratuitous. ... it will be necessary for the court to determine from the direct or indirect evidence, or both, whether the services were rendered under circumstances that imposed a duty upon defendant to pay for them.” (Kenny v. Trust Oil Co., 168 Cal.App.2d 478, 482, 486 [335 P.2d 1008J.)1 On May 1, 1961, the case was retried without a jury pursuant to the terms of a letter stipulation signed by attorneys for both parties, dated March 16, 1961. Said letter provided as follows: “1. The court may set the case for trial as soon as possible after April 15, 1961. 2. At the trial no oral testimony will be presented by either side. 3. In reaching its decision the court will consider: (a) the entire file of the action, including the transcript of the prior trial and any and all exhibits included in said file and the entire record as presented to the District Court of Appeal, (b) Any affidavits submitted by either side which said affidavits shall be submitted to the trial judge upon the date set for the trial and no counter affidavits shall be submitted. Upon presentation to [307]the trial judge of the matters set forth above, the trial judge will decide the matter after hearing such argument as is desired.”

At the trial no oral evidence was presented, both sides having submitted an affidavit or affidavits to the court. The court determined that the plaintiff, Kenny, was entitled to recover from defendant, Trust Oil Company, the sum of $15,054.64 and costs. Its motion for a new trial having been denied, defendant appeals.

Defendant contends that it was deprived of its right to present oral argument at the second trial. It must first be noted that the refusal of a trial court, sitting without a jury in a civil action, to allow a litigant’s counsel to argue the case, is not prejudicial error. (See Larson v. Blue & White Cab Co., 24 Cal.App.2d 576 [75 P.2d 612] ; 38 A.L.R.2d 1431 and the cases cited therein.) Moreover, by virtue of the letter stipulation of March 16, 1961, the parties expressly waived oral argument. Defendant argues against such waiver relying on a statement made by plaintiff’s counsel after the submission of the affidavits,2 and on the last sentence of the letter stipulation. However, it is .clear that both statements refer the question of the necessity of any argument to the discretion of the trial judge. Upon reading the affidavits submitted and the entire file of the action, it is apparent that the trial judge, in the exercise of that discretion, did not require oral argument. We find no error therein. Defendant cites its letter addressed to the trial judge, dated May 24, 1961. Said letter was previous to the judgment and respectfully suggested that the court should properly perm't argument by counsel before rendering decision. However, this letter does not enhance plaintiff’s position and was merely a one-sided appeal to the discretion of the trial judge with respect to the desirability of oral argument.