Gilmore

Action by plaintiff for personal injuries alleged to have been sustained by him for and on account of a certain automobile collision due to the alleged negligence of the defendant and on an assignment for damages to the automobile in which the plaintiff was riding. It appears *Page 301 from the transcript that on or about the seventh day of October, 1922, the plaintiff was a passenger in a certain automobile, being driven in an easterly direction by one Clarence Buthenuth upon a certain main public highway in the county of San Joaquin, leading to the town of Modesto, at a point on said highway where it is intersected by a certain other highway known as and called the Atlanta-Ripon road. The complaint sets up two causes of action: first, for the injuries sustained by the plaintiff; secondly, for damages to the automobile in which the plaintiff was riding in the sum of $423.50, alleged to have been assigned to the plaintiff by the owner of the automobile in which the plaintiff was a passenger at the time of the injury. On the part of the appellant it is insisted that the testimony shows that the injuries received by the plaintiff were due solely and exclusively to the negligence of…

Action by plaintiff for personal injuries alleged to have been sustained by him for and on account of a certain automobile collision due to the alleged negligence of the defendant and on an assignment for damages to the automobile in which the plaintiff was riding. It ap *301 pears from the transcript that on or about the seventh day of October, 1922, the plaintiff was a passenger in a certain automobile, being driven in an easterly direction by one Clarence Buthenuth upon a certain main public highway in the county of San Joaquin, leading to the town of Modesto, at a point on said highway where it is intersected by a certain other highway known as and called the Atlanta-Bipon road. The complaint sets up two causes of action: first, for the injuries sustained by the plaintiff; secondly, for damages to the automobile in which the plaintiff was riding in the sum of $423.50, alleged to have been assigned to the plaintiff by the owner of the automobile in which the plaintiff was a passenger at the time of the injury. On the part of the appellant it is insisted that the testimony shows that the injuries received by the plaintiff were due solely and exclusively to the negligence of the…

This matter is before the court on a petition for rehearing. In our former opinion (ante, p. 299 [ 224 Pac. 250 ]) we held that there was no evidence justifying the finding of the trial court that the second causo of action set out in plaintiff’s complaint had been assigned to him. The evidence on this point appearing in the transcript is set out in that opinion.

It is now insisted by respondent that: “An appellate court will assume the existence of facts which were assumed to exist in the court below, notwithstanding the fact that they were put in issue by the pleadings.” To support this statement a number of cases have been cited. The respondent’s statement of the law we readily concede to be *304 correct "but the authorities cited fail to support the application of the principle contained in said statement to the cause at bar. An examination of the cases all show that something was said or done which justified the assumption of the existence of the facts necessary to appear and to be made to appear in order to support the judgment. We only need to cite one case in this state which illustrates this point, National Union Fire Ins. Co. v. Nason, 21 Cal. App. 297, 299 [ 131 Pac.…