Duff v. Schaefer Ambulance Service, Inc.

This appeal is the aftermath of three actions for the recovery of personal injury and property damages arising out of an interseetional vehicular collision.

The accident occurred at the intersection of Hope and Temple Streets in Los Angeles on the evening of March 6, 1952, between the hours of 8:30 and 9 o ’clock. The vehicles involved were a 1953 Ford automobile owned and driven by defendant Arywitz and an ambulance belonging to the Schaefer Ambulance Service, Inc. (hereinafter called Schaefer), which wás being operated by defendant Carl A. Bellanzi. Plaintiffs Matelie Duff and Callie Williams, both of whom

Mrs. Duff (hereinafter termed appellant) instituted this action on the theory of negligence for the recovery of damages from defendants Arywitz, Schaefer, Bellanzi, the International Ladies’ Garment Workers Union (hereinafter designated Union), and two of its members, Samuel Otto and John Ulene. It was alleged that appellant was a passenger in the Arywitz car and that Arywitz was the agent of both the Union and the two named members and was acting within the scope of his employment when the accident occurred. Appellant’s husband was joined as a coplaintiff to recover for loss of consortium. Callie Williams likewise filed an action for damages based on the alleged negligence of the above named defendants. A third action, restricted to property damage resulting from the accident, was brought by Schaefer against Arywitz alone. Among the defenses interposed by Arywitz and the Union to appellant’s complaint was the claim that appellant was a guest in the Arywitz car and that Arywitz was neither intoxicated nor guilty of wilful misconduct at the time of the impact. The answer of defendants Schaefer and Bellanzi, so far as is here material, denied negligence in Bellanzi’s operation of the ambulance.

The three cases were consolidated for trial before a jury and resulted in verdicts in favor of all the defendants in the Duff and Williams personal injuries actions. Appellant Duff’s motion for a new trial was denied. In the property damage action, Schaefer prevailed against Arywitz. The judgment in this latter action, and the judgment adverse to Callie Williams are now final. Mrs. Duff is the sole appellant. She assigns as prejudicial error (1) various rulings on the admissibility of evidence; (2) the giving of certain instructions and the refusal to give others requested by her; and (3) the court’s misconception of its duty in ruling on the motion for new trial. Her contentions cannot be sustained.

Background Facts

The evidence shows that appellant was a resident of South San Gabriel, a suburb of Los Angeles. She was employed

Appellant testified that when she became committee chairman in 1943 she informed one Louis Levy, since deceased, but then an officer of the Union, that she did not drive a car and would have difficulty in returning home late at night from Los Angeles. Levy, she stated, assured her that transportation would be provided either to her home or to the Pacific Electric Railway Terminal in Los Angeles when she was required to remain in, or come to Los Angeles on behalf of the Union.

Arywitz testified that he occupied the position of director of the education and public relations committee of the Union. He was employed directly by the International Union in New York City, from whom he received a salary of $85 a week. His job was to formulate and carry out a program of educational and recreational activity. This entailed the organization of classes, holding institutes, publishing a Union newspaper, and planning dances, parties and picnics. His duties brought him in contact with defendant Ulene, an officer of Local 266 and manager of the Union’s Joint Sportswear Council, and with committee members of the local unions with whom he had occasion to discuss his projects. He sometimes met with officers of Local 266 to apprise them of his contemplated programs. He worked under the supervision of the Pacific Coast Regional Director of the International Union, in whose headquarters his own office was located. He was not subordinate to any official of the local unions or of any of the executive committees.

Arywitz testified that he kept fairly regular office hours— normally from about 9 :30 a. m. to 6 p. m. He spent about

On February 27, 1952, a week before the accident, appellant and Mrs. Williams attended a meeting of delegates to the Sportswear Joint Council where defendant Ulene announced that on March 6th a dinner and lecture would be given at the Case Hotel in downtown Los Angeles by an organization known as the Religion and Labor Council. Dinner was to be served at 7 p. m. and the speaker’s address was scheduled for 8 p. m. Reservations for the dinner were required by noon on March 5th. The Joint Council voted that delegates who attended would be reimbursed for the dinner charges of $2.00 by the Union upon submission of a voucher. Appellant made no reservation to attend. It was established that the Religion and Labor Council is an independent organization with its own' headquarters and officers, and conducts meetings periodically on various subjects throughout the city. It was affiliated with the American Federation of Labor and 1he Union.

Appellant and Mrs. Williams attended Union meetings on March 6th at the close of their working day, and, at about 7 p. m., they joined Mrs. Bayer for the drive to the TV studio in the latter’s car. Mrs. Bayer testified that she drove to work about three days a week, and parked her car near the Union office when attending Union meetings. For about the last three years, she had received $5.00 a week from the Union “not as a car expense but parking expense.” She testified that in connection with the allowance of this parking expense she was never told that it was to include the cost of carrying personnel in her car. She stated that the fact that she received a parking allowance from the Union did not motivate her in taking appellant and Mrs. Williams to the TV studio on March 6th. The record shows also that Mrs. Williams owned a car, but did not drive. She and her daughters lived in El Monte, and they all worked in downtown Los Angeles to which they drove daily, one of the daughters driving. They customarily parked in a parking lot between 8th and 9th Streets on Hill Street, and the car was parked there on the day of the accident. On that day Mrs. Williams planned to meet her daughters at the Olympic Theatre, on 8th Street between Hill and Broadway, at about 10:30 p. m. As appellant and Mrs. Williams and Mrs. Bayer drove to the studio, appellant was informed of, and accepted, the plan to have dinner in Hollywood following the TV broadcast before returning downtown.

By the time the broadcast ended, a heavy rain was falling. This disrupted the ladies’ prearranged plan to dine in Hollywood. Mrs. Bayer was willing to drive appellant and Mrs. Williams back to downtown Los Angeles. However, it was suggested that perhaps she might be spared the trip if another ride downtoivn could be arranged. Arywitz was approached by the three women and asked if he were going downtown. He replied affirmatively and agreed to give appellant and Mrs. Williams a lift. Arywitz and the two women thereupon entered his car and started off. Arywitz’s destination was a parking lot adjacent to the Case Hotel at 11th and Broadway, Avhere he had arranged a date with a lady. En route, a discussion was had as to where the ladies were to leave the car. It ivas finally decided by them that they would alight at 8th and Hill Streets, Avhere Mrs. Williams wished 1o obtain refreshments. After dinner, since it Avould be still too early for the 10:30 p. m. appointment at the theatre Avith Mrs. Williams’ daughters, the ladies decided they would look in at the Case Hotel meeting at the Religion and Labor Council, instead of spending the intervening time sitting in

In the Goldanski case, supra, the court, in a cogent analysis of the trend of recent decisions, points out that “even though the purpose of a trip is pleasure or social, the rider may be a passenger if the driver actually receives for the trip something intended as compensation.” (P. 47.) However, it was there held, upon abundant authority, that where the ride is offered for mutual pleasure or as an act of hospitality, such mere exchange of social courtesies is not a benefit amounting to compensation so as to make a rider a passenger and not a guest (p. 49). That conclusion, of course, comports with the fundamental policy underlying guest statutes, which is to prevent recovery for ordinary negligence by a guest in an automobile who has accepted the hospitality of the driver. (Kruzie v. Sanders, 23 Cal.2d 237 , 241 [ 143 P.2d 704 ].) Where, as here, wilful misconduct or intoxication on the part of the driver is not involved, the occupant of the car has the burden of proving that he was a passenger rather than a guest. (Kroiss v. Butler, 129 Cal.App.2d 550 , 556 [ 277 P.2d 873 ]; Gosselin v. Hawkins, supra.)

The law relating to the question of whether at the time of the accident Arywitz was acting in the service of his employer has found expression in numerous cases considering the relationship of principal and agent, master and servant, and in cases arising under the workmen’s compensation act. In general, where it is established that the driver of a car was the servant or agent of defendant employer and that his use of the vehicle was a contemplated incident of his agency, before liability is fastened on the employer the plaintiff must show that at the time of the injury complained of the servant was engaged in performing a service for the master or some act incidental thereto. (Kish v. California State Auto Assn., 190 Cal. 246 , 248-249 [ 212 P. 27 ]; Clough v. Allen, 115 Cal.App. 330 , 332 [ 1 P.2d 545 ]; Hall v. Puente

Nonliability of Arywitz and the Union

Applying the foregoing rules, it is clear that the evidence amply sustains the implied findings of the jury that appellant was a guest in Arywitz’s car and that Arywitz was not acting within the scope of his employment at the time of the collision. The evidence obviously accepted by the jury shows that on the day in question Arywitz had finished his day’s work and had gone home, with no further duties for the Union on his schedule. His time thereafter was his own, to use as he pleased. His presence at the ICTTV program was the result of private choice, because of his interest in its sociological content and was dissociated from any duty he owed the Union arising out of his employment. He was neither expected to attend such meeting nor, being there, to engage in any functions connected with his job. Furthermore, there is no evidence to show any obligation on Arywitz’s part to supply transportation to appellant to downtown Los Angeles. Arywitz’s prearranged activities for the evening called for him to keep a date with a lady near the Case Hotel. Appellant, on the other hand, was not sent to the KTTV program as a Union representative or delegate. She had left her home on the morning of March 6th without even knowing what type of broadcast she would attend and later fell in with her friend’s plans to have dinner in Hollywood after the broadcast. It was simply

Clearly the jury could reasonably have found that the Avork for the Union had no part in creating the necessity for Arywitz’s trip, which he would have made in all events and which had no possible connection with the duties he owed the Union. Also, they could have found that appellant was in Arywitz’s car merely as a guest accepting an act of courtesy and accommodation extended to her by a friend going her way. That no benefit tantamount to compensation passed to Arywitz nor motivated him in taking appellant on the trip he was making is fully supported by the evidence. (Brandis v. Goldanski, supra, p. 49.)

Appellant urges in support of her position that her uncontradicted testimony was that the late Mr. Levy assured her, almost ten years before the accident, that she would always get transportation to the Pacific Electric terminal Avhen on Union business. She emphasizes also that Arywitz was receiving an expense account for the use of his ear from the Union. But neither of these factors compels the fastening of liability on those defendants. In connection with her first point, two principles should be borne in mind. The first is that uncorroborated testimony as to an oral declaration of a deceased person is the weakest form of evidence and is open to suspicion; but, where admissible, it will be Aveighed by the trier of facts the same as other evidence and may be disregarded where shown to be unconvincing or insubstantial. (Estate of Emerson, 175 Cal. 724 , 727 [ 167 P. 149 ].) The second is that the trier of fact may reject the uncontradicted testimony of a witness provided he does not act arbitrarily. (Hicks v. Reis, 21 Cal.2d 654 , 659-660 [ 134 P.2d 788 ].) Among the relevant considerations in this respect are the character of the evidence, the motives of the witness, and his interest in the result of the case. (Hicks v. Reis, supra; Huth v. Katz, 30 Cal.2d 605 , 609 [ 184 P.2d 521 ]; American Trust Co. v. Fitzmaurice, 131 Cal.App.2d 382 , 388 [ 280 P.2d 545 ].) The jury was not compelled to accept the testimony of appellant as to LeAr,y’s alleged promise, either because of the weakness of this type of evidence or because it was not satisfied with

Rulings on the Evidence

Appellant makes multifarious attacks upon the ruling of the court in the admission and exclusion of evidence. In order properly to evaluate these rulings it is necessary to bear in mind, at least so far as the liability of defendant Arywitz and the Union is concerned, that the character of the transportation venture by which Arywitz undertook to drive appellant and Mrs. Williams from the telecast in Hollywood to downtown Los Angeles and his relation to the Union during such venture, are crucial. The person in the best position to testify on this subject was Arywitz, for he had primary knowledge of his own purpose and intention, and the extent of his agency. While his statement, of course, would not be conclusive, it was nevertheless competent, contrary to appellant’s assertion, for him to testify that he attended the telecast as a private individual and not as a representative of the Union (Hirshfeld v. Dana, 193 Cal. 142 [ 223 P. 451 ]), and that providing transportation downtown for appellant and Mrs. Williams was not within the scope of his employment but rather a personal matter, “as an act of friendship.” (Kast v. Miller & Lux, 159 Cal. 723 , 727-728 [ 115 P. 932 ].) It was likewise competent for him to testify that his day’s work was finished at 6 p. m. Appellant’s objections to questions which developed the above testimony were properly overruled. Appellant, however, argues that the court unduly restricted the cross-examination of Arywitz respecting his interest in attending Union activities

Appellant complains that she was not permitted to testify relative to transportation furnished her prior to the accident by various Union members. The following question was propounded: “I wonder if you could tell the jury the various methods of transportation you have had in private passenger cars insofar as members of the Union are concerned?” Clearly this was immaterial to any issues here involved. Counsel, however, suggested he would establish that the persons who gave her rides were on expense accounts with the Union. This would not render such testimony material since there was no showing or offer to show that

Appellant also complains that she was not permitted to testify that “prior to the collision she was present in the automobile of Arywitz because of- Union activities on numerous occasions. ’ ’ Here again there was no showing of any basis for binding the Union in connection with any of these isolated rides. In an apparent effort to establish such a basis, counsel for appellant examined Arywitz under section 2055, Code of Civil Procedure, relative to each of these asserted rides. Counsel was not able, however, to tie the Union into any of them. In fact, Arywitz denied having taken appellant on most of these trips. On infrequent occasions when he did give her a ride it was done solely as an act of friendship.

Appellant claims -to be aggrieved because the court excluded evidence of (1) previous rides in Mrs. Bayer’s car; (2) a voucher of the Union indicating payment of automobile expense to Mrs. Bayer; and (3) transportation charges of $2.00 assertedly paid by the Union to Mrs. Bayer for each member of the education committee she carried to an institute at Mar Vista. We perceive no error in the rulings on these matters. In this connection it will be recalled that although Mrs. Bayer was an official of the Union she was not a paid employee of the Union. She testified she received “no car expense” for the use of her automobile but the Union allowed her $5.00 a week for “parking expense.” It is thus clear that under this arrangement the Union was not paying for the rides that Mrs. Bayer gave appellant. The voucher that was excluded (Plaintiff’s Exhibit No. 4 for identification) was drawn in favor of Mrs. Bayer for $5.00 under date of August 31, 1951. There was a notation for car expense. This may well have been a receipt for one of her weekly payments for parking expense or pay for some special use of her car. In either event it was not here material. It was likewise immaterial whether Mrs. Bayer received $2.00 for each passenger transported to an institute at Mar Vista on some prior occasion. Special arrangements made for particular transportation could not have any bearing on the issues in this case.

Finally, the question of whether Mrs. Bayer was receiving compensation for transporting appellant and Mrs. Williams from downtown Los Angeles to the telecast in Hollywood

Evidence that appellant attended the annual convention of the Union as a delegate and as such was provided transportation was properly rejected. There is no parallel between official representation of the Union at its annual convention and attending the telecast at KTTV which was not sponsored by her Union but by another organization and which she attended voluntarily and not in any official capacity.

It was not error to exclude testimony that the Union had defrayed transportation expenses of appellant on other occasions such as meetings of the Union held at Asilomar and visits to the City of Hope since such evidence had no probative value to establish that on the night in question Arywitz was providing transportation for her on behalf of the Union or that compensation was given therefor. It must be remembered that the testimony of appellant herself affirmatively established that it was only by the merest circumstance that she had ridden with Arywitz that night. In order to save Mrs. Bayer the drive downtown in the rain the ladies sought other transportation for appellant and Mrs. Williams. Arywitz was contacted and agreed to accommodate the two ladies since he was going downtown anyway to pick up his “date.”

It was not error, as appellant asserts, to admit in evidence the minutes of the board of directors of the Sportswear Joint Council showing that the Union’s representation at the TV program was to be restricted to two members, and that she was not included. These minutes were prima facie evidence of the facts stated therein. (Corp. Code, § 832.) They were not self-serving declarations in any sense of the word but were routine minutes representing action taken at a time when no litigation was contemplated. Appellant, however, claims error in the exclusion of testimony by Director Roberts purporting to contradict recitals in the minutes with respect to the designation of two persons to attend the telecast. There was actually no contradiction for her statement was: “I don’t remember the number two ever having been mentioned ...” This witness sought to volunteer on two occasions that they were all invited to attend this broadcast. This statement was not in response to any question and was therefore stricken by the court as not re

Appellant contends that the court erred in excluding (1) conversations between her and Mrs. Williams respecting their contemplated attendance at the dinner meeting at the Case Hotel at 7 o’clock on the evening of the accident; (2) evidence that such affairs were customarily tardy in getting started; and (3) her explanation of the nature of this affair. The rulings were correct. The conversations were hearsay and there was an absence of any foundation to establish authority on the part of these two ladies to bind the Union by such conversations. The practice of not getting such dinners started on schedule was not material to any issue in this ease. This is made obvious by the testimony of witness Carstens, who was head of the Beligion and Labor Council which put on the dinner, that it started, as scheduled, at 7 o’clock and was over by 9 p. m., which was only a few minutes from the time the accident occurred. In connection with this dinner, it should be noted that appellant received the same invitation that was extended to the entire joint council. She was not delegated to attend the affair. With this factual background it was not error, as appellant asserts, to strike her explanation of the nature of the dinner-meeting at the hotel.

Appellant charges prejudice (1) in the admission of the contents of a signed statement by Mrs. Williams which was used to impeach the latter’s testimony; (2) in the refusal to allow Mrs. Williams to explain the circumstances under which the statement was signed; and (3) in rejecting her statement that she did not understand certain expressions used therein. At the time the impeaching statement of Mrs. Williams was admitted the court did not limit it in any way to Mrs. Williams’ case, since she, also, was a witness for appellant. However, the error, if such there was, in any aspect of the ruling, was cured by instruction “L” which reads as follows: 1 ‘ There has been offered by defendant Union and received in evidence a statement in writing signed by plaintiff Callie Williams upon the ground that the same was an admission by her against her own interest. ■ It may therefore be considered by you as evidence in the case against plaintiff Callie Williams.

“With reference to the written statement of plaintiff Callie Williams [just] mentioned, you are instructed that the same shall not be considered by you as prejudicing the rights of

It may have been error, insofar as Mrs. Williams’ own case was concerned, not to permit her to explain her lack of understanding of certain terms used in the statement she signed and not to allow her to explain the circumstances under which she signed it but she is not appealing the decision in her case. However, such limitation on her testimony could not in any event be prejudicial to appellant’s case in view of the instruction quoted above.

During the course of Mrs. Williams’ testimony she referred to the person who took her statement as “a man from the insurance company of the Union.” Because of this reference the Union and Arywitz requested, and the court gave, an instruction that the jurors should not speculate about or discuss whether or not there was insurance in the case; that this was a subject with which they were not concerned and that it should not enter into their deliberations “in any manner.” In view of Mrs. Williams’ observation, it was entirely proper to advise the jury that it should not be concerned with whether there was insurance involved. Appellant, however, claims the inclusion in the instruction of the quoted phrase was prejudicial in that it took from the jury’s consideration any bias or interest on the part of this man and how such matters affected him in preparing the statement. There is no merit in this argument, particularly in view of instruction “L” which advised the jury that the Williams’ written statement should not be considered as prejudicing the rights of, or “binding” upon, appellant.

No Prejudicial Error in the Instructions

Appellant claims prejudice in the giving of certain instructions captioned “D,” “F,” “ G-,” “H,” and “I.” We perceive no merit in this contention. She assigns as error in Instruction “D” the statement that no liability would attach to Arywitz and the Union unless the jury found “that (1) compensation was given for the transportation from KTTV to Los Angeles; (2) that in providing the transportation Mr. Arywitz was the agent of the Union in so doing; and (3) was acting within the course and scope of his employment in providing such transportation; . . . ” Appellant claims that point (1) of the instruction requires her to show that she had given compensation for the ride. This is

Appellant challenges the propriety of instructions “G” and “I.” These instructions are, perhaps, not worded, as felicitously as might be desired. However, an examination of the instructions shows that, in essence, they accurately stated the law that compensation would be present if the trip served to accomplish a purpose of, or was of benefit to, the Union, but that it would be lacking if the motivating influence for the ride was merely the extension of a personal courtesy or an accommodation solely for appellant’s convenience. (Humphreys v. San Francisco Area Council, Boy Scouts, 22 Cal.2d 436 [ 139 P.2d 941 ]; Brandis v. Goldanski, supra.) Basically, they left for the jury to determine whether appellant was simply a guest or whether compensation in the statutory sense was rendered or received for the journey. (Gosselin v. Hawkins, 95 Cal.App.2d 857 , 861 [ 214 P.2d 110 ].)

The court gave to the jury Instruction “F” in the following language: ‘ ‘ The fact that defendant Arywitz may have been allowed car expense as part of his compensation does not of itself prove that it was part of his job to transport the plaintiffs from one place to another. Such evidence is to be considered only as one of the facts and circumstances bearing upon the question of the nature and extent of Mr. Arywitz’s employment and the scope of his duties to be performed on behalf of the Union.” Appellant claims that the instruction charged upon a matter of fact. The first sentence of the instruction is a correct statement of the law. (Kish v. California State Automobile Assn., supra.) There

Appellant attacks Instruction “H” which reads as follows: “Plaintiffs Duff and Williams claim that at the time of the accident they were enroute to the Case Hotel at 11th and Broadway to attend a meeting of the Religious and Labor Council. The burden is on plaintiffs to prove this fact by a preponderance of the evidence, and unléss they maintain such burden of proof your verdict must be in favor of Arywitz and I.L.G.W.U. If at the time of the accident their destination had no connection with any meeting at the Case Hotel, your verdict would be against said plaintiffs as to said defendants.” This attack is unwarranted when read in relation to the charge as a whole. The jury was fully instructed on the subject of “guest” and “passenger” and the matter of “compensation” had been thoroughly defined and explained. The doctrine of respondeat superior had likewise been covered. However, it was appellant’s contention that when the collision occurred she was en route to the meeting at the Case Hotel. It was respondent’s contention that Arywitz’s riders were going to a restaurant at or near Eighth and Hill to eat and then wait for Mrs. Williams’ daughters to leave the movie theatre. The criticized instruction was not a formula instruction purporting to embody all the elements of liability but, in conjunction with other instructions, advised the jury that unless appellant’s destination was the Case Hotel on the business of or at the behest of the Union she could not recover. The instruction as a whole had a natural basis in the evidence. Clearly, if appellant was going directly to a downtown eating-place rather than to a Hollywood restaurant because of an unanticipated change of plans, and if Arywitz was taking her there merely as an act of courtesy, neither Arywitz nor the Union would be liable. Under other instructions given, the jury could decide whether appellant’s presence at the telecast was on a Union mission, whether it wished to believe appellant’s testimony that a deceased Union official promised she would always have transportation “either home or back to the P.

Appellant contends that the court erred in refusing two instructions offered by her. The first one reads: “You are instructed that section 403 Vehicle Code, and commonly known as the guest law, whereby a person carried in a vehicle without reward is deprived of the right to recover damages for injuries caused by the breach of ordinary care, is in derogation of the common law and must be construed strictly against the change of the former law which authorized recovery prior to the enactment of such guest law.” It will be noted that as proposed the instruction reads that section 403 [of the Vehicle Code] was to be “construed strictly against the change of the former law.” (Italics added.) Assuming the proffered proposition of law to be a proper subject of instruction to the jury, its wording is of such a nature as would strongly tend to mislead and confuse the jury. As the Union points out, if section 403 is to be strictly construed, it is simply the language of said section which is to be so construed; it does not mean, in the inept language of the requested instruction, that it is to be strictly construed against any former law or “against the change of the former law.” Equally without merit is the claim that the refusal to give another instruction was prejudicially erroneous. This read as follows: “In determining whether there is an agreement by defendant Union to provide plaintiff Matelie Duff with transportation in connection with the performance of her activities on behalf of defendant Union, you are instructed that said agreement may be implied from the circumstances and uniform course of conduct of the parties.” While the instruction is unobjectionable as a statement of law, it is unsupported by the record in the form requested. Appellant was not relying on an implied understanding between herself and the Union. Her contention throughout the trial was that there was an express agreement that she was to have transportation to her home or to the Pacific Electric Station when on Union business. Her testimony as to other rides represented an effort to establish the existence of such an agreement. It was never appellant’s theory that there was an implied agreement. In addition, the language of the instruction tells the jury categorically that there was a “uniform course of conduct by the parties.” This was clearly obnoxious in the state of the record. The function of instructions is to give the jury the law which it shall apply to the facts

Appellant assigns as error the refusal to give an instruction embodying the doctrine of res ipsa loquitur. A reading of that reported instruction shows that it assumes Arywitz was the Union’s agent at the time of the accident. The court manifestly could not so instruct the jury as a matter of law. In any event, its refusal clearly was nonprejudicial since in the Schaefer case Arywitz was found to have been negligent, which is the maximum effect an instruction on res ipsa loquitur would have achieved. Similarly, without prejudice was the refusal of two requested instructions on sections 510 and 676 of the Vehicle Code in view of the finding in the Schaefer case that Arywitz was guilty of negligence, which is all appellant could have accomplished by the giving of those instructions. It is elementary that a reversal is not warranted unless it appears probable that a different result would have obtained had the refused instructions been given. (Horrell v. Santa Fe Tank & Tower Co., 117 Cal.App.2d 114 , 121 [ 254 P.2d 893 ].)

The Schaefer-Bellanzi Judgment

By way of prelude to á consideration of appellant’s assignments of error with respect to the judgment in favor of Bellanzi and Schaefer, the events leading up to the accident will be briefly recited. Bellanzi was driving the Schaefer ambulance easterly on Temple Street; the prevailing visibility enabled him to see from a point just east of the Temple-Figueroa intersection to beyond the Temple-Hope intersection, or about two city blocks; his siren was in full operation for a number of blocks before he arrived at the point of impact at the Temple-Hope intersection; the red lights on the ambulance were burning before and at the time of the collision. Bellanzi was operating the ambulance in second gear at a speed of about 15 to 20 miles an hour from the intersection of Flower and Temple, one block west of Hope, up to the time of the crash. As he passed Flower Street, he let his siren down to about the “one-half mark” and the siren again attained its highest pitch just before reaching Hope Street. An independent witness named King testified that when he was immediately east of the intersection of Temple and Hope, he heard the siren sound when the ambulance was about two

Appellant complains of the refusal of the court to give instructions 150-B, 150-C, and 138-A. The first two of these instructions were requested not by appellant but by defendant. However, the content and substance of all three of these instructions were embraced in instruction 151 (N), given at appellant’s request. This instruction reads: “It is the duty of the driver of any vehicle using a public street or highway to exercise ordinary care to avoid placing himself or another person in dangerto use like care to avoid an accident from which injury might result; to be vigilant at all times, keeping a lookout for traffic and other conditions to be reasonably anticipated; and to keep the vehicle under such control that, to avoid a collision with any person or with any other object, he can stop as quickly as might be required of him by eventualities that would be anticipated by an ordinary prudent driver in like position.” Appellant argues, however, that she was deprived of the benefit of instruction 151 (N) by the giving of instruction 215-D, which read: “In connection with instructions that will follow concerning negligence, the duties of drivers of vehicles on a highway, and laws regulating the driving of vehicles and the use of highways, you will keep in mind that they have no application to the driver of the emergency vehicle involved in this case if you should find facts which, under the Court’s instructions, entitled him to the exemption heretofore mentioned, and if you should further find that he was not guilty of an arbitrary exercise of the privileges included in that exemption.” Such instruction was clearly necessary and was couched in proper language. The instructions given immediately after 215-D

Appellant’s final argument is that the trial judge had an erroneous understanding of his duties in passing on her motion for a new trial. She relies on a colloquy that took place between her counsel and the court at the opening of argument on her motion. Counsel drew the court’s attention to the opinion of the Chief Justice in People v. Robarge, 41 Cal.2d 628 [ 262 P.2d 14 ], relative to the trial court’s duty on a motion for a new trial to independently evaluate “. . . the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict [p. 633].” The trial judge stated he had read the opinion. There is nothing in the judge’s comment indicating he did not understand the case, or his duty in the premises, as therein stated. In fact, the inference is quite to the contrary for he pointed out that in considering the facts on a motion for a new trial the court might arrive at a result different from that of the jury. Finally, it must be presumed “That official duty has been regularly performed.” (Code Civ. Proc., § 1963, subd. 15.) Appellant’s position on this point is completely lacking in merit.

Our examination of the record discloses that during the two weeks’ trial plaintiff had a full and fair opportunity to get her evidence before the jury and that the jury was adequately and fairly instructed on the applicable legal principles. Even if a miscroscopie culling of the record discloses some incidental error, we are satisfied it was of an inconsequential character and could have no bearing on the ultimate result. We find nothing in the record indicating a miscarriage of justice. Under such circumstances the judgment may not be reversed. (Calif. Const. art. VI, § 4½.)

The judgment is affirmed.

Moore, P. J., and McComb, J„ concurred.

A petition for a rehearing was denied May 17, 1955, and appellants’ petition for a hearing by the Supreme Court was denied June 29, 1955.