139 Cal.App.2d 777, 16533, Boynton v. Mckales

Docket Nº:16533
Citation:139 Cal.App.2d 777, 294 P.2d 733
Opinion Judge:[10] Nourse
Party Name:Boynton v. Mckales
Attorney:[7] Vernon W. Humber and John Wynne Herron for Appellants. [8] Barfield & Barfield and Alexander, Bacon & Mundhenk for Respondents.
Case Date:March 12, 1956
Court:California Court of Appeals

Page 777

139 Cal.App.2d 777

294 P.2d 733

CHARLES BOYNTON et al., Appellants,


McKALES (a Corporation) et al., Respondents.

Civ. No. 16533.

California Court of Appeal, First District, Second Division

March 12, 1956

Page 778

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Page 779

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Page 780


Vernon W. Humber and John Wynne Herron for Appellants. Barfield &amp Barfield and Alexander, Bacon &amp Mundhenk for Respondents



Charles Boynton, then a minor 20 years of age, was seriously injured when standing at night next to his parked car in the traveled portion of the Great Highway in San Francisco. He was hit by the car of defendant Brooks, who at that time was returning home from a banquet given by his employer, McKales, a corporation, to its senior employees. Charles and his father obtained verdicts against both Brooks and McKales. Brooks had pleaded guilty to a charge of violation of section 501 of the Vehicle Code (illegally causing bodily injury when driving under influence of liquor). McKales' motions for nonsuit, directed verdict and judgment notwithstanding the verdict, based on the contention that Brooks as a matter of law was not acting within the scope of his employment when the injury occurred, were denied. Both defendants moved for a new trial on several grounds, those of defendant Brooks including "newly discovered evidence," those of defendant McKales not. Both motions were granted by one order on the ground of "newly discovered evidence." The plaintiffs' notice of appeal from said order mentions the granting of the motion of defendant Brooks only. Both defendants cross-appealed as will be stated hereinafter. The plaintiff in singular will herein mean the plaintiff Charles Boynton.

1. Plaintiffs' appeal as to defendant Brooks and Brooks' cross-appeal.

Although plaintiffs' main argument on this appeal is that the court had no discretion to grant a new trial on the ground

Page 781

of "newly discovered evidence" because no affidavit made any showing of diligence in endeaving to discover the evidence before the trial, two other grievances must be reviewed first.

It is contended that Brooks' motion for a new trial was filed after the expiration of the statutory time. Said time is governed by section 659 of the Code of Civil Procedure, which as amended in 1951 reads in part: "The party intending to move for a new trial must, either (1) before the entry of judgment and, where a motion for judgment notwithstanding the verdict is pending, then within five (5) days after the making of said motion, or (2) within ten (10) days after receiving written notice of the entry of the judgment, file with the clerk and serve upon the adverse party a notice of his intention to move for a new trial ..." On April 1, 1954 defendant McKales made a motion for judgment notwithstanding the verdict but defendant Brooks did not file any such motion. Brooks filed his motion for a new trial in accordance with the first alternative of section 659 before the entry of judgment, but did not file it within five days after McKales made its motion for judgment n.o.v. (McKales filed its motion for a new trial within said five days.) The question is therefore presented whether the requirement of filing within five days applies to all parties to an action if any of them has made a motion for judgment n.o.v. or only to those parties to whom the verdict to be disregarded relates. The question has not been decided before. It would seem that the latter construction is well within the language of the statute as the words "where a motion for judgment notwithstanding the verdict is pending" need not include the pendency of a motion with respect to a verdict or a part of a verdict which does not relate to the party moving for a new trial and independent of which a judgment with respect to the latter party could be entered under sections 578 and 579 of the Code of Civil Procedure. A decision as to Brooks, the direct actor, is possible, independent from a decision as to the liability of McKales under the doctrine of respondeat superior. (Cf. Zibbell v. Southern Pac. Co., 160 Cal. 237, 248 ; Fearon v. Fodera, 169 Cal. 370, 377 [Ann.Cas. 1916D 312].) It seems then more reasonable to restrict the requirement of filing within the above five days' period to the party who made the motion for judgment n.o.v. and the adverse party or parties to it as mentioned in section 629 and 659 of the Code of Civil Procedure. In this case Brooks could not be considered

Page 782

to have an interest adverse to McKales' motion for judgment n.o.v.

It is also contended that the affidavits filed by Brooks in support of his motion for a new trial on the ground of "newly discovered evidence" could not be considered at all because they were filed three days late and that the relief granted by the court from said default under section 473 of the Code of Civil Procedure was ineffective. Notice of appeal was filed also with respect to the order granting said relief. The contention is without merit. Section 659a of the Code of Civil Procedure expressly permits the extension by the court of the 10 days' period for filing the affidavits for an additional period not exceeding 20 days. The 10-day period is then clearly not jurisdictional. In contrast to the period for filing the motion for a new trial the extension of which is expressly prohibited by section 659, the 10-day period for filing affidavits is not so limited. Hence the trial court can grant relief from default under section 473 at any rate to the extent to which it could have granted extension in advance. (See Faeh v. Union Oil Co., 107 Cal.App.2d 163, 169 .) "In the absence of any express provision to the contrary, the court has power to grant relief from such a default under the broad provisions of section 473." (Lane v. Pacific Greyhound Lines, 30 Cal.2d 914, 917 ; see also 3 Witkin, California Procedure, 2099.) The order granting relief will be affirmed.

However, the affidavits filed were fatally defective in that they did not make any showing of diligence. The following language of Slemons v. Paterson, 14 Cal.2d 612 at pages 615-616 is applicable: "While the granting or denial of a motion for a new trial upon the ground of newly discovered evidence is generally a matter within the discretion of the trial court, and such an order will be affirmed unless a clear abuse of discretion is shown, this rule has no application where the affidavit or other evidence upon which the order is made furnishes no basis for the exercise of such discretion. Such is the situation in the case at bar. The affidavit ... is so lacking in essential particulars that it afforded no basis for the exercise of the discretion of the trial court in granting the motion. ... It is a matter of public interest that there be an end to litigation and that a new trial should not be granted for the purpose of enabling a party to produce further evidence unless he has shown some legally justifiable excuse for not having produced such evidence at the former


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