Tomlinson v. Kiramidjian

Plaintiff, as guardian ad litem of Betty Daslyne Brown, a minor, brought suit against defendants for damages arising out of the death of the father of the minor, who was killed while riding in an automobile as the guest of the defendants. George Christian was operating the automobile with the consent of defendant Kiramidjian, the owner. The cause was tried before a jury, which rendered a verdict for the plaintiff. Prior to submitting the matter to the jury, defendants moved for a directed verdict. This motion was denied. After verdict, and before entry of the judgment, motion was made to vacate and set aside the verdict of the jury and enter a judgment for defendants notwithstanding the verdict. The motion for judgment notwithstanding the verdict was made in the alternative form asking therefor, and reserving, if that be denied, the right to apply for a new trial. On motion for new trial judgment on the verdict was set aside and judg

The motion for a directed verdict and motion for judgment notwithstanding the verdict were made on the ground of the insufficiency of the evidence to justify the verdict “because it appears from the whole evidence in the case that the negligence of the deceased, plaintiff’s ancestor, proximately contributed to his death”.

It appears from the evidence that at about 1 o’clock on the afternoon of August 25, 1930, the deceased met defendants and served them with beer; that the three of them drank a couple of bottles apiece between that time and 3 o’clock. At about 3 o’clock defendants left in an automobile and drove to a place about two miles distant. The deceased did not go with them. Upon arrival they drank more beer, returning about 4 o’clock, where they again joined deceased. It does not appear that deceased knew of their drinking at this other place. All three again drank beer, either a glass or a bottle apiece. They also had lunch. At about 5 o’clock they left for deceased’s home, the defendant Christian driving, with all three sitting in the front seat. Christian drove some distance and at the request of deceased stopped at a place, where he got two bottles of beer, putting them in the car. While there they each drank another glass. They re-entered the automobile with the same seating arrangement, Christian driving, and did not stop again until the accident occurred. On passing an automobile, Christian, while driving between fifty-five and sixty miles an hour, turned and waved his hand at the occupants of the other car. While he was so engaged the automobile he was driving swerved onto the left-hand side of the road, he glanced forward, turned it back to the right, it went off the highway and overturned, causing the death of deceased. The car was going about fifty-five miles an hour at the time of the accident.

The defendant Kiramidjian gave the following testimony: “Q. Now, was Christian driving a little fast at any time prior to the accident? A. I don’t know—at certain times. Q. Did Mr. Brown say anything to you or to Mr. Christian about his driving? A. He did once, he made a remark. Q. What did he say? A. Well, he told me—he.asked me to take the wheel. He said if I didn’t he thought Mr. Chris

The defendant Christian, when called as a witness, gave substantially the same story as Kiramidjian and when asked whether he felt any different on the day of the accident than on other days, answered, “Oh, yes, why sure, I felt better because I had been drinking beer. I felt happy and things like thát. You are bound to feel different. I wasn’t intoxicated, I had been drinking beer but not intoxicated.” Over plaintiff’s objection a traffic officer who came on the scene shortly after the accident and saw the physical conditions surrounding the accident and smelled liquor, testified that he “thought it was a drunken party”. He heard one of the defendants talle, did not know which one it was, but thought it was Christian. Some broken bottles were found at the scene of the accident. The three witnesses whose evidence we have reviewed were the only ones who testified as to what happened before or after the accident in respect to the drinking and condition of defendants and of the deceased.

The trial court has power to enter a judgment notwithstanding the verdict when it could and should have in the first instance directed a verdict (Code Civ. Proc., sec. 629), and the court’s right to direct a verdict is “absolutely the same as the right to grant a nonsuit”. (Perera v. Panamar-Paeijic International Exposition Co., 179 Cal. 63 [ 175 Pac. 454 , 455].) Applying these rules to the facts and to the conclusions which we have drawn therefrom, we are of the opinion that the trial court did not have the right to determine from the whole evidence that a verdict for the defendants should have been directed in the first instance, and therefore did not have a right to enter a judgment notwithstanding the verdict.

It is urged that a reversal of this ease results in a final judgment for plaintiff. This is not the law. Upon a

The judgment is reversed. It is directed that judgment upon the verdict be entered.

Barnard, P. J., and Marks, concurred.

A petition by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on September 21, 1933.