Opinion
Rehearing Denied Dec. 9, 1929
Hearing Granted by Supreme Court Jan. 8, 1930
Appeal from Superior Court, City and County of San Francisco; T.I. Fitzpatrick, Judge.
Action by Oriente Baroni against B. Rosenberg and another, wherein the Continental Casualty Company joined as intervening plaintiff and lien claimant. Verdict for defendant, and, from an order granting a new trial, defendant Rosenberg appeals. Reversed, with directions.
COUNSEL
Louis V. Crowley and Cooley, Crowley & Gallagher, all of San Francisco, for appellant.
Daniel A. Ryan, of San Francisco (George F. Snyder, of San Francisco, of counsel), for respondent.
OPINION
NOURSE, J.
Plaintiff sued the defendant Rosenberg for damages for personal injuries. The Continental Casualty Company, the carrier through which the plaintiff’s employer was insured under the Workmen’s Compensation Act (St.1917, p. 831, as amended), joined as intervener plaintiff and lien claimant. The cause was tried before a jury and resulted in a verdict for defendant. Upon plaintiff’s motion a new trial was ordered and the defendant has appealed on typewritten transcripts.
The grounds urged on the motion for a new trial were that the verdict was against the weight of the evidence, and that the defendant was guilty of prejudicial misconduct. In the order granting the motion the insufficiency of the evidence was not specified as one of the grounds, and that point cannot, therefore, be urged in support of the order. Code Civ.Proc. § 657.
The claim of misconduct arises from the colloquy of counsel for plaintiff and defendant during the examination of the plaintiff as a witness. Defendant’s counsel asked the witness if he was receiving "workmen’s compensation" at the time of the trial. Plaintiff’s counsel said he would object to the question unless the jury was instructed that such compensation would have to be paid back out of any verdict obtained. The jury was so instructed and the witness answered in the affirmative, and then volunteered the information that he was receiving $20.83 a week. So far in the examination of this witness everything was done with the consent of plaintiff’s counsel. He joined in the discussion with the court and defendant’s counsel of the legal questions arising under the provisions of the Workmen’s Compensation Act and of the liabilities of the plaintiff and the intervener toward each other under that act. So far no misconduct was assigned and none can be asserted at this late date. Mohn v. Tingley, 191 Cal. 470, 490, 217 P. 733.
After the plaintiff had volunteered the information as to the amount of compensation (and this is all that is declared inadmissible in evidence by the act) the counsel continued their discussion, each expressing different views as to how long these payments would continue. Counsel for plaintiff disagreed with the opinion expressed by his adversary, assigned it as misconduct, but did not ask the court to instruct the jury to disregard it. The trial judge voluntarily instructed the jury to disregard the opinions of both counsel. The position of counsel for plaintiff is not easy to understand. In his complaint and in his proof he insisted that plaintiff’s injuries were permanent and would result in permanent disability. The insurance carrier took the same position. The Compensation Act, § 9, subd. (b) 2, (5), St.1917, p. 836, as amended by St.1925, p. 642, § 1, provides that the employee shall receive the compensation payments during the remainder of life if the injuries result in 70 per cent. or more of total disability. During the controversy counsel for plaintiff stated that these payments would not be permanent, and when his adversary said they would continue to the plaintiff "as long as he lives" this was assigned as misconduct. There is nothing in the briefs to indicate upon what this claim of misconduct is based, but if it were misconduct it was certainly all invited by plaintiff and any prejudice was removed by the court’s instruction. Murphy v. Zwieg (Cal.App.) 279 P. 1062, where cases are cited.
In respondent’s brief on this appeal he has, for the first time, raised the point that the new trial should have been granted because of errors in instructions given or refused. Criticism is made of the instruction given reading in part: "It must further appear to you from the whole evidence in the case that the plaintiff was not guilty of negligence, etc." It is argued that this instruction threw upon the plaintiff the burden of proving that he was not guilty of contributory negligence. This instruction did not relate to the matter of the burden of proof; it merely gave to the jury the settled rule of law that a plaintiff may not recover if on "the whole evidence in the case" the plaintiff was shown to have been guilty of contributory negligence.
Further criticism is made of the instruction given relating to section 122 of the California Vehicle Act (St.1923, p. 557). After reading a portion of the section the jury was told that, if they found that the defendant was obeying the law at the time of the accident, it could not find him guilty of negligence "by reason thereof." It is argued that this instruction required the jury to find for the defendant if he was driving on the right side of the highway nowithstanding any carelessness in his manner of driving. The instruction is not open to this criticism. It merely advised the jury that the defendant was not guilty of negligence merely by following the law. The question of negligence generally was fully covered in other instructions.
Complaint is also made of the refusal to give certain instructions requested by the jury. We find no error in the action of the trial judge. The instructions requested were either instructions on the very issues of fact which the jury was to determine or were fully covered by other instructions.
The respondent has failed to show any legal ground upon which the order granting him a new trial can be sustained. The record discloses a case which was fully and fairly tried before the jury. The jury brought in its verdict in favor of the defendant, and the trial judge, by his order granting the new trial, approved the verdict so far as the evidence was concerned. With no error to sustain the order granting a new trial, that order must be reversed.
Order reversed, with directions to enter judgment for defendant on the verdict.
We concur: KOFORD, P.J.; STURTEVANT, J.