OPINION Counsel for respondent has filed a petition for a rehearing upon the ground; among others, that we did not dispose of respondent's motion to dismiss the appeal.
1. This case was set for oral argument on June 18, last, on which day counsel for respective parties *Page 362 appeared in court. Counsel for appellant made his opening argument on the merits, whereupon counsel for respondent argued the case upon the merits. At the conclusion of his argument, counsel for respondent stated, according to the notes of the court reporter and our memory: "There was a written notice to dismiss the appeal from the judgment. I won't argue it." No further allusion was made to it by either counsel. Thereupon counsel for appellant made his closing argument, and the case was ordered submitted.
In this situation, the court naturally assumed counsel for respondent had waived his motion to dismiss the appeal. It has always been the practice to make and argue a motion to dismiss, when one was insisted upon, prior to the argument on the merits, and the general understanding by the court has been that if not done before argument on the merits, it is waived, though the notice of motion be given in apt time. Respondent must be held to have waived his right to insist upon his notice of motion to dismiss.
Respondent also seems to contend that we did not dispose of the finding of the trial court to the effect that the steering gear of the defendant's car was defective and contributed to the accident. We covered this finding to our entire satisfaction, and think it unnecessary to add more to what was said on this point.
2. It is contended that under the rule stated in the case of Ireland v. Marsden, 108 Cal. App. 632, 291 P. 912, a rehearing should be granted. As to this contention, whatever else might be said, it appears that there is no allegation in the complaint bringing the case within the doctrine of res ipsa loquitur. The cause of action set forth in the complaint is predicated upon specific acts of negligence only, and was tried upon that theory only. As said in Connor v. Atchison, T. S.F. Ry. Co., 189 Cal. 1,207 P. 378, 22 A.L.R. 1462:
"The general rule is that, where the plaintiff in his complaint gives the explanation of the cause of the accident, that is to say, where the plaintiff, instead of relying upon a general allegation of negligence, sets *Page 363 out specifically the negligent acts or omissions complained of, the doctrine of res ipsa loquitur does not apply."
See, also, Marovich v. Central Cal. Traction Co., 191 Cal. 295,216 P. 595; 19 Cal. Jur. p. 713, sec. 127.
Such is the well-recognized general rule. 45 C.J. p. 1225. The point is not well taken.
3. It is said we should not have ordered the dismissal of the case; that in so doing the court acted only upon the record before it, and has not undertaken to delve into any equities dehors the record. It is a common practice to order a dismissal of a case when it appears that no case is made out, nor can be made. From a consideration of the record, it appears no stronger case can be made. Equities such as suggested cannot be considered now or at any other time.
Rehearing denied.