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eBook details

• Title: Wulfjen v. Dolton
• Author : Supreme Court Of California In Bank
• Release Date : January 15, 1944
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 60 KB

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[24 Cal2d Page 879] CURTIS, J. -- This is an appeal from an order granting a nonsuit, duly entered in the minutes of the court. Such [24 Cal2d Page 880] an appeal may properly be taken because the order granting the nonsuit amounted in legal effect to a judgment of nonsuit. (Cole Civ. Proc., ? 581; Brown v. Sterling Furniture Co., 175 Cal. 563 [166 P. 322]; McColgan v. Jones, Hubbard & Donnell, Inc., 11 Cal. 2d 243 [78 P.2d 1010]; Lewis v. Hammond Lumber Co., 114 Cal. App. 390 [300 P. 49]; Spinner v. Los Angeles Ry. Corp., 52 Cal. App. 2d 679 [126 P.2d 940].) In reviewing the record herein, regard must be had for the rules of law which apply to cases of nonsuit and which are clearly stated in Borger v. Lane, 190 Cal. 443, 452-453 [213 P. 45] as follows: ""Every favorable inference fairly deducible and every favorable presumption fairly arising from the evidence adduced must be considered as facts proved in favor of the plaintiffs. Where evidence is fairly susceptible of two constructions, or if one of several inferences may reasonably be made, the court must take the view most favorable to the plaintiffs. If contradictory evidence has been given it must be disregarded. (Estate of Arnold, 147 Cal. 583 [82 P. 252].) The plaintiff must also be given the benefit of every piece of evidence which tends to sustain his averments, and such evidence must be weighed in the light most favorable to plaintiffs' claim. (Anderson v. Wickliffe, 178 Cal. 120 [172 P. 381].) Evidence, whether erroneously admitted or not, if relevant to the issues joined, must be given the credit and benefit of its full probative strength, and any question arising from the fact of variation between the evidence of the witnesses cannot be raised or considered. The evidence must be taken most strongly against the defendant, and if the plaintiff has introduced proof sufficient to make out a prima facie case under the allegations of his complaint the motion, if made upon the close of the case, should be denied. (Bush v. Wood, 8 Cal. App. 647 [97 P. 709]; Estate of Daly, 15 Cal. App. 329 [114 P. 787]; Wassermann v. Sloss, 117 Cal. 425 [59 Am. St. Rep. 209, 38 L.R.A. 176, 49 P. 566]; Lassen v. Southern Pac. Co., 173 Cal. 71 [159 P. 143]; Kleist v. Priem, 51 Cal. App. 32 [196 P. 72].)"" See, also, Bosqui v. City of San Bernardino, 2 Cal. 2d 747, 760 [43 P.2d 547]; Angelus Socurities Corp. v. Ball, 20 Cal. App. 2d 423, 434-435 [67 P.2d 152].

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