Arnaz

This action was brought to recover damages alleged to have been suffered by the plaintiff by reason of the negligent acts of the defendant in the handling and driving of an automobile. The case was tried before the court without a jury and' judgment entered in favor of the plaintiff. From that judgment defendant appeals. Defendant in his answer pleaded that the plaintiff was guilty of contributory negligence which was the proximate cause of his injuries. The court failed to make a finding upon this plea and that omission constitutes the sole claim for a reversal.

[1] The law imposes upon a trial judge the duty to make findings upon all material issues as to which evidence has been introduced. On the other hand, it is well settled that where the evidence heard does not support the plea of contributory negligence, a finding upon the issue is not necessary to be made. (Winslow v. Gohransen, 88 Cal. 450 , [ 26 Pac. 504 ] ; Maloof v. Maloof, 175 Cal. 571 , [ 166 Pac. 330 ].) The latter case is cited upon the general proposition just announced, without our agreement with the statement made in that decision, to the effect that the omission of the court to find upon an issue made by the…