Huebotter v. Follett ( 1946 )

EDMONDS, J.

I cannot agree with the conclusion reached by Mr. Justice Schauer that where there are two issues of fact, it is prejudicial error justifying a reversal for the trial judge to correctly instruct the juryi in regard to the one upon which the evidence is uncontradicted, if the verdict is consistent with and supported by all of the evidence in the case. An issue upon which there is no contradictory evidence and concerning which only one reasonable inference can be drawn should be ruled upon by the court as a question of law (Bibb v. Allen, 149 U.S. 481, 493 [13 S.Ct. 950, 37 L.Ed. 819]; Upton v. Tribilcock, 91 U.S. 45 [23 L.Ed. 203]; see 16 R.C.L. 189, note 10 and cases cited thereunder; 53 Am.Jur. 150). To submit it to the jury constitutes error (Poncino v. Sierra Nevada Life & C. Co., 104 Cal.App. 671 [286 P. 729]; Stewart v. Erskine-Bolst, 66 Cal.App. 461 [226 P. 644]; Morris & Co. v. Fels & Co., 278 F. 172; see 24 Cal.Jur. 794), but such action is not necessarily prejudicial.

In the present ease, the record shows that the jury was correctly instructed upon the issue as to whether the plaintiff was a passenger or a guest. It must be presumed that the jurors were intelligent persons who correctly applied the instructions of the court to the undisputed evidence and found the plaintiff to have been a passenger. (Henderson v. Los Angeles Traction Co., 150 Cal. 689, 697 [89 P. 976]; Dermer v. Pistoresi, 109 Cal.App. 310, 314 [293 P. 78]; Robinson v. McKnight, 103 Cal.App. 718, 728 [284 P. 1056]; see 24 Cal.Jur. pp. 795, 796.)

The general rule which carries the presumption that, as to each of the facts submitted, the jury found in favor of the verdict is also applicable here. As stated in Shahabian v. Najarian, 14 Cal.App.2d 435, 443 [58 P.2d 396] (petition for hearing denied), in considering an appeal from a judgment based upon a general verdict it must be assumed that the jury passed upon every material issue of fact submitted to them, and that the findings thereon were such as to support the verdict. (In accord: Wladyka v. Gity of Waterbury (1922), 98 Conn. 305 [119 A. 149]; see, also, People v. Gorman, 69 Cal.App.2d 54 [158 P.2d 267]; Cornell v. Hollywood Turf Club, 32 Cal.App.2d 204, 208 [89 P.2d 449]; Mau v. McManaman, 29 Cal.App.2d 631, 636 [85 P.2d 209]; Streicher v. Battles, 29 Cal.App.2d 526, 527 [84 P.2d 1049]; Astor v. Safeway Stores, Inc., 26 Cal.App.2d 163, 166 [79 P.2d 146]; Hamilton v. Ferguson, 26 Cal.App.2d 390, 402 [79 P.2d 427]; Ramsey v. Furlott, 14 Cal.App.2d 145, 148 [57 P.2d 1007].) And submission to the jury of a question of law is harmless error where the jurors followed correct instructions applicable to the issue. (Sutter v. Associated Seed Growers, Inc., 31 Cal.App.2d 543 [88 P.2d 144]; Poncino v. Sierra Nevada Life & C. Co., supra, p. 676; Stewart v. Erskine-Bolst, supra, p. 473; Morris & Co. v. Fels & Co., supra, p. 174; Moore v. People’s State Bank of White Water (1923), 114 Kan. 100 [217 P. 299]; Fordney v. King County (1941), 9 Wn.2d 546 [115 P.2d 667]; Fosgate Co. v. Spokame Valley Grower’s Union, 263 Mass. 15 [160 N.E. 297]; Heaton v. Nelson (1921), 69 Colo. 320 [194 P. 614]; Longcor v. Detroit Homeopathic College (1920), 210 Mich. 575 [178 N.W. 222]; Wladyka v. City of Waterbury, supra; Patten v. Chicago & N. W. R. Co., 32 Wis. 524.)

Accordingly, in my opinion, as the evidence upon the issue of negligence supports the verdict in favor of the defendant and it must be presumed that the jury found Huebotter to have been a passenger at the time of the accident, the assigned error was not prejudicial.