Boynton v. McKales

• Decision Date: 12 March 1956
• Citation: 294 P.2d 733,139 Cal.App.2d 777
• Court: California Court of Appeals Court of Appeals
• Parties: Charles BOYNTON and Robert Boynton, Plaintiffs and Appellants, v. McKALES, a corporation, and Arthur Brooks, Defendants and Respondents. Civ. 16533.

Page 733

294 P.2d 733

139 Cal.App.2d 777

Charles BOYNTON and Robert Boynton, Plaintiffs and Appellants, v. McKALES, a corporation, and Arthur Brooks, Defendants and Respondents.

Civ. 16533.

District Court of Appeal, First District, Division 2, California.

March 12, 1956.

Hearing Denied May 9, 1956.

Vernon W. Humber, John Wynne Herron, San Francisco, for appellant boynton.

Barfield & Barfield, San Francisco, for respondent McKales.

Alexander, Bacon & Mundhenk, San Francisco, for respondent Arthur Brooks.

NOURSE, Presiding Justice.

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 of 'newly discovered evidence' because no affidavit made any showing of diligence in endeavoring 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 fo 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 respondent superior. Compare Zibbell v. Southern Pacific Co., 160 Cal. 237, 248, 116 P. 513; Fearon v. Fodera, 169 Cal. 370, 377, 148 P. 200. It seems then more reasonable to restrict the requirement of filing within the above 5 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 sections 629 and 659 of the Code of Civil Procedure. In this case Brooks could not be considered 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 ten day period is then clearly not jurisdictional. In contrast to the period for filing the motion for a new trial the extension of with 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, 236 P.2d 667. '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, 187 P.2d 9, 11; 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, 96 P.2d 125, 127, 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 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 trial. Sec. 657, subd. 4, Code Civ.Proc. The affidavits supporting the motion must show that there has been no lack of diligence. [citations.]' The same rule was applied in reversing an order granting a new trial in Mowry v. Raabe, 89 Cal. 606, 609-610, 27 P. 157; Edwards v. Floyd, 96 Cal.App.2d 361, 215 P.2d 117; Henningsen v. Howard, 117 Cal.App.2d 352, 355, 255 P.2d 837.

In our case no affidavit whatever by either defendant or by any attorney of defendants or by any agent of defendants or their attorneys was filed. The only two affidavits filed were by two persons who stated that they arrived at the place of the accident immediately after it took place and who relate certain observations they made conflicting with some of the evidence received at the trial. The affidavit of one of them contains also the following language on which respondent relies as showing diligence in investigating the evidence: 'After the accident, I dismissed the same from my mind and thought nothing more of it until I read an article in one of the local newspapers describing the accident and incident on the Great Highway.' Evidently this statement is wholly without value in showing diligence. Not only does it not state the relation of the time of the reading of the newspaper article, or the time the witness came into contact with respondent, with the time of the trial, but it does not give the slightest indication that respondent or his attorney did not know the affiant, who was present at the time of the accident or could not have timely obtained his name (which was known to the police, but not stated in the report on the accident). Compare Gaskill v. Pacific Electric Ry. Co., 30 Cal.App. 593, 597, 159 P. 200.

Respondent Brooks contends that reply affidavits offered by him but stricken by the court on motion of plaintiffs and not part of the record should be considered to aid in supporting the order granting the new trial on the ground of newly discovered evidence. We do not agree. The record shows that the plaintiffs continuously took the position that the affidavits offered by Brooks were fatally defective in not showing diligence, but that when the court seemed disinclined to deny Brooks' motion on that ground they filed counter affidavits for the purpose of showing that by due diligence defendants could have known of the affiants in time to hear them as witnesses at the trial, and for the purpose of rebutting the factual statements in their affidavits. Respondent then offered reply affidavits for the alleged purpose of rebutting new matter contained in the counter affidavits. Said affidavits of respondent were not offered as supplements to the original affidavits because the 20 days permissible extension period of section 659a, supra, had already...