Opinion
Rehearing Denied Aug. 13, 1928.
Hearing Granted by Supreme Court Sept. 17, 1928.
Appeal from Superior Court, City and County of San Francisco; E. P. Shortall, Judge.
Action by Charles W. Barrett against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals. On plaintiff’s motion to dismiss the appeal or affirm the judgment. Motion to affirm granted, and judgment affirmed.
COUNSEL
Ford, Johnson & Bourquin, of San Francisco, for appellant.
James F. Brennan, of San Francisco, John J. McMahon, of Los Angeles, and William F. Herron, of San Francisco, for respondent.
OPINION
WARNE, Presiding Justice pro tem.
Respondent made a motion herein to dismiss the appeal or affirm the judgment appealed from "upon the ground that appellant herein has not printed in its brief on file herein, or in any supplement appended thereto, or at all, any portions of the evidence or record herein, and that no evidence is set forth in said brief of appellant sufficient to advise respondent or the court concerning appellant’s ground of appeal or sufficient to justify a reversal of said judgment, or to show any error in any ruling of the trial court, or to show error anywhere in the record and proceedings herein." Respondent contends that appellant has failed to comply with the requirements of section 953c of the Code of Civil Procedure, which contains the following provisions:
"In filing briefs on said appeal, the parties must, however, print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court."
The suit was brought to recover damages against the appellant for injuries sustained when his automobile, in which he was riding in the nighttime within a thick gray fog, collided with a gray-colored stone pier in the middle of the state highway about four miles north of the city of Santa Barbara. The said pier is used to support an overhead bridge which the railroad of the appellant crosses. A jury returned a verdict in favor of respondent, awarding him damages. Judgment was entered accordingly and appellant appeals.
The grounds urged for a reversal of the judgment are as follows:
(1) Plaintiff was guilty of contributory negligence as a matter of law.
(2) That the construction and maintenance of the stone pier in the center of the state highway was duly authorized and did not constitute a public nuisance.
(3) Defendant was not guilty of negligence.
(4) The judgment is excessive.
(5) The court made numerous errors in excluding and admitting testimony and in giving instructions by plaintiff and in refusing practically all of the instructions requested by the defendant.
To properly consider these points on their merit, it was incumbent upon appellant to point out to this court the evidence and portion of the record supporting its contention. The typewritten transcript contains 308 pages of testimony. Appellant’s brief does not contain a single quotation therefrom. Appellant rests content with the filing of an opening brief only, wherein it has stated the testimony favorable to its contention in the form of general statements as to what a witness is claimed to have testified to with scattering references to the pages of the transcript. No pretense is made of quoting the testimony. For instance, appellant says that the verdict was excessive, and in his brief all that is contained on the subject is as follows:
"The verdict in this case is for $67,700. The injuries sustained by the plaintiff, aside from a paralysis of one of the nerves in his tongue, are not such as to warrant any very considerable amount of damage. Plaintiff testified that the trachea was cut, and that he was unable to swallow on account of scar tissue, and that the tongue was paralyzed. This, with the opening statement of counsel to the same effect, no doubt impressed the jury. It appears, however, from the testimony of Dr. L. W. Hotchkiss, the surgeon who attended him, that the injuries as testified to by plaintiff were seriously exaggerated. The trachea was not cut at all, and only the nerve on one side of the tongue was injured."
This is characteristic of the entire brief. Nor have the instructions complained of been printed in the brief. Nor is there any showing that the substance of the requested instructions or the law applicable to the subject upon which the request was made was not fully covered in the court’s charge to the jury. Respondent contends "that the appellant’s brief absolutely misconstrues the testimony"; in other words, that appellant has placed its own construction upon the evidence rather than quote the evidence as it actually stands to allow the court to place the proper construction upon it. An examination of the record would seem to bear respondent out in this respect. In so doing, appellant has not complied with the requirements of section 953c of the Code of Civil Procedure.
In the very recent case of Filmer v. Davis, 266 P. 985, this court said:
"While the precise wording of the section requires the appellant to print such parts of the record as he desires to call attention to, the decisions above referred to, as well as the very nature of the matter, require that appellant print enough of the record to enable the appellate court to determine the merits of the appeal without examination of the typewritten transcript, except perhaps in case of a dispute developed in the briefs as to what the official record actually contains."
From a reading of appellant’s brief, we are unable to say that any error was committed in this case. As was said in the case of Scott v. Hollywood Park Co., 176 Cal. 680, 681, 169 P. 379:
"All presumptions indulged in are in favor of the regularity of the judgment and proceedings upon which it is based, hence it devolves upon appellant to affirmatively show the existence of the error upon which he asks for a reversal."
See, also, Estate of McPhee, 156 Cal. 335, 104 P. 455, Ann. Cas. 1913E, 899; Marcucci v. Vowinckel, 164 Cal. 693, 130 P. 430; McKinnell v. Hansen, 34 Cal.App. 76, 167 P. 887; Miller v. Oliver, 174 Cal. 407, 163 P. 355; Estate of Berry, 195 Cal. 354, 233 P. 330.
In Estate of Berry, supra, at page 359 thereof (233 P. 332), the court said:
"The result is not only that it was the plain duty of appellants to print in their brief or in the supplement thereto all portions of the record necessary to be considered by this court before arriving at a conclusion that the judgment should be reversed, but also that because of their failure so to do, this court would be fully justified in affirming the judgment appealed from without further consideration of the record. Appellants seem to believe that they have performed their duty fully in this respect when they have printed the portions of the evidence upon which they rely. They overlook the fact that in order to determine whether or not the evidence is sufficient to sustain a given finding, we must have before us not only the evidence but also the finding. If we had the finding before us and should conclude that the evidence was insufficient to support it, we still could not determine whether or not such finding was essential to support the judgment unless we had before us the pleadings or at least an accurate statement of the issues framed thereby."
In Jeffords v. Young, 197 Cal. 224, 229, 239 P. 1054, 1056, the court says:
"It has been reiterated approximately one hundred times in the decisions of this court and of the District Courts of Appeal that it is incumbent upon an appellant who relies upon a typewritten transcript to print in his brief or in a printed supplement thereto sufficient of the record to justify a reversal of the judgment or order appealed from. 2 Cal.Jur. 643 et seq. Furthermore, as we pointed out some months ago (Estate of Berry, 195 Cal. 354, 233 P. 330), since the 1923 amendment [St. 1923, p. 748] to the section last cited, an appellant who fails to do this incurs thereby the risk that the order or judgment appealed from may be affirmed upon motion."
We have examined the entire record, and we find that no one of the points made by the appellant is well taken. If the motion to affirm had not been made, the court would have been constrained to have affirmed the judgment.
We are of the opinion that respondent’s motion to have the judgment affirmed should be granted.
The judgment appealed from is affirmed.
We concur: NOURSE, J.; STURTEVANT, J.