Thompson v. Boyer

This is a motion to dismiss the appeal or affirm the judgment on the grounds that the appeal is taken for delay and that the questions presented for the decision of this court are so unsubstantial as not to require further argument. The motion is made under section three of rule V of the Rules for the Supreme Court and District Courts of Appeal.

Respondent was injured in an automobile accident in Fresno County and recovered a substantial judgment. Appellant has presented two grounds upon which he urges a reversal; first, that the damages awarded are so excessive that they were obviously the result of sympathy for respondent and of passion and prejudice; and, second, that the trial court, at the request of respondent, gave certain prejudicially erroneous instructions which caused the jury to render the excessive verdict.

In the case of City of Los Angeles v. Los Angeles-Inyo FarmsCo., 126 Cal.App. 61 [14 P.2d 339, 340], this court announced its understanding of the purpose and application of the rule in question as follows: "Until a different interpretation of the rule is given us, we have concluded that ordinarily we should examine and carefully consider all papers filed on the hearing of the motion and the appellants' opening brief. If, after so doing, in the ordinary case, we are satisfied that the appeal is without any merit, the motion should be granted; otherwise, it should be denied. The court may then put the case on the `Ready for Submission Docket.' The following cases have been decided under this new rule: Dalton v. Los Angeles College of Chiropractic,125 Cal.App. 196 [13 P.2d 546]; Thomas v. Caine,125 Cal.App. 201 [13 P.2d 548]; Sumner v. Edmunds, 125 Cal.App. 478

[13 P.2d 1046]." (See, also, Brown v. Gow, 126 Cal.App. 113 [14 P.2d 322].)

[1] We have carefully examined the moving papers filed by respondent, including her authorities in support of her motion; the brief of appellant in reply to the motion; appellant's opening and respondent's reply briefs on the appeal. This has led us to the conclusion that a decision of the question of whether or not certain instructions given by the trial court at the request of respondent were erroneous, and prejudicially so, requires us to carefully review the entire record, including the reporter's transcript of the evidence. Therefore, the questions presented for our decision are not so unsubstantial as to justify us in dismissing the appeal.

Motion denied.

Barnard, P.J., and Jennings, J., concurred.