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Peterson v. La Salle

123 Cal. App. 639 Court Second Appellate District, Division Two. Decision date 1932-05-23 Docket Civ. No. 8124 English

Delivered by CRAIG, Acting P. J.

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p. 639
[Civ. No. 8124.
Second Appellate District, Division Two.
May 23, 1932.]
OLE PETERSON, Respondent, v. FRANK LA SALLE, Appellant.
Warren L. Williams and Seymour S. Silverton for Appellant.
Earl Curtis Peck for Respondent.

The defendant appealed from a judgment entered upon a verdict of a jury awarding to the plaintiff compensation for alleged work, labor and services.

Portions of the testimony of each of the respective parties set forth in the briefs are equally positive and concededly contradictory as to the fact of employment, and other evidence upon that issue is admittedly absent.

The appellant first contends that respondent’s services were terminated prior to the date alleged by the latter and as found by the jury. The sole basis for such conten

p. 640
tion consists of evidence of various demands and refusals of wages from time to time, of the respondent in person. Upon a review of the record in the instant case it cannot be said that an appellate court would be authorized to judge as to the credibility of witnesses nor to question the verdict and judgment without holding that in the very nature of things the respondent’s testimony could not have been true. We feel that such ruling here would invade the province of the jury. (Wilson v. Kestenholz, 113 Cal. App. 13 [ 297 Pac. 954 ].)

It is insisted that an instruction merely that if the jury should find from the evidence that the plaintiff was employed by the defendant, at the wages, and for the period of time, as alleged, their verdict should be in his favor, was insufficient in that their conclusion might have been different had the trial court also directed that they be governed by a preponderance of the evidence. No such instruction was requested, nor was the fact of rendition of services disputed. Hence appellant cannot complain on appeal.

The judgment is affirmed.

Thompson (Ira F.), J., and Frieke, J., pro tern., concurred.

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