Aced v. Hobbs-Sesack Plumbing Co.

• Citation: 55 Cal.2d 573,12 Cal.Rptr. 257
• Decision Date: 06 April 1961
• Docket Number: HOBBS-SESACK
• Parties: , 360 P.2d 897 James P. ACED, Respondent, v.PLUMBING CO. (a Partnership), Appellant. * S. F. 20188.
• Court: United States State Supreme Court (California)

Page 257

12 Cal.Rptr. 257

55 Cal.2d 573, 360 P.2d 897

James P. ACED, Respondent, v. HOBBS-SESACK PLUMBING CO. (a Partnership), Appellant.^*

S. F. 20188.

Supreme Court of California, In Bank.

April 6, 1961.

Crist, Peters, Donegan & Brenner and John M. Brenner, Palo Alto, for appellant.

Ropers, Majeski & Kane and Eugene J. Majeski, Redwood City, for respondent.

GIBSON, Chief Justice.

This is an appeal by cross-defendant Hobbs-Sesack Plumbing Company (hereafter called Hobbs) from an order granting a new trial to cross-complainant Aced, who was doing business under the fictitious name of Functional Construction Company.

Aced contracted with plaintiff owners to build a home with a radiant heating system installed in a concrete slab floor. Hobbs, as subcontractor, agreed with Aced to furnish the necessary labor and material for the system, and the installation was completed by the end of January 1953. Numerous leaks developed in the tubing, and in 1955 the entire system had to be replaced. In September 1956 the owners of the home brought this action against Aced for damages, and on February 11, 1957, Aced filed an answer and cross-complaint which named Hobbs as a cross-defendant. Aced stipulated with the owners that judgment might be entered against him for $7,715.54, and the trial proceeded upon Aced's cross-complaint against Hobbs.

It appears that the job of installing the heating system was done in a workmanlike manner, and Aced stipulated that he was relying solely on the theory that there had been a breach of an implied warranty of merchantability. The court found that there was a sale of the tubing by Hobbs to Aced under a written agreement giving rise to an implied warranty of merchantability but that there was no breach of the warranty because the leaks could have been produced by several causes and Aced had failed to prove that they were due to unmerchantable quality of the tubing. The court also concluded that Aced's cause of action was barred by the four-year limitation of section 337, subdivision 1, of the Code of Civil Procedure. Judgment was entered in favor of Hobbs on the cross-complaint, and Aced moved for a new trial on the grounds that errors in law had occurred at the trial, that the evidence was insufficient to justify the decision, and that the decision was against law. The court made an order in writing which stated that the motion 'for a new trial upon the issues set forth by the cross-complaint is granted.'

A preliminary question is presented as to whether the court's order may properly be treated as granting a new trial upon the ground of insufficiency of evidence. Section 657 of the Code of Civil Procedure sets forth the grounds for a new trial and provides that when a new trial is grnated for insufficiency of the evidence 'the order shall so specify this in writing and shall be filed with the clerk within ten days after the motion is granted; otherwise, on appeal from such order it will be conclusively presumed that the order was not based upon that ground. * * *' If this provision is not complied with, the appellate court is precluded from considering insufficiency of the evidence as justification for the order unless the evidence is insufficient as a matter of law and is without conflict on any material point. Adams v. American President Lines, 23 Cal.2d 681, 683, 146 P.2d 1; Sheets v. Southern Pacific Co., 212 Cal. 509, 512, 299 P. 71; Phillips v. Powell, 210 Cal. 39, 41, 290 P. 441; Yoakam v. Hogan, 198 Cal. 16, 20, 243 P. 21; Biaggi v. Ramont, 189 Cal. 675, 677, 209 P. 892; Read v. Pacific Electric Ry. Co., 185 Cal. 520, 521, 197 P. 791.

Section 657 discloses an intent that the required written specification be made in some unmistakable way (Dempsey v. Market Street Ry. Co., 23 Cal.2d 110, 115, 142 P.2d 929), and this intent will obviously be frustrated if an order for a new trial is sustained upon the ground of insufficiency of the evidence where the language of the order is vague or ambiguous. Whenever the order is in general terms, mentioning no ground, or specifies grounds not including insufficiency of the evidence, we must assume that it was not based on that ground. See also Malloy v. Fong, 37 Cal.2d 356, 376, 232 P.2d 241; City and County of San Francisco v. Tillman Estate Co., 205 Cal. 651, 654-655, 272 P. 585. It is preferable, of course, that the statutory language be used. Some departure in terminology may be permissible, however, if the intention of the court is clear. For example, it has been held that a sufficient specification is made by an order 'granted on all the grounds stated in the notice of intention to move for a new trial,' the theory being that the grounds stated in the motion, including insufficiency of the evidence, were incorporated by reference. Lewis v. Southern California Edison Co., 116 Cal.App. 44, 49-50, 2 P.2d 419, 421; Beckley v. Harris, 84 Cal.App. 557, 559, 258 P. 428. Several cases decided by the District Courts of Appeal have held, contrary to the views we have expressed, that a declaration in the order that a new trial is granted as to 'all issues,' or as to all issues made by the pleadings, adequately specifies the ground of insufficiency of the evidence. Legg v. Mutual Benefit H. & A. of Omaha, 136 Cal.App.2d 887, 890-892, 289 P.2d 550, 290 P.2d 87, 290 P.2d 87; Bayley v. Souza, 42 Cal.App.2d 166, 169-172, 108 P.2d 725; Lucerne Country Club v. Beal, 21 Cal.App.2d 121, 124-128, 68 P.2d 408; see Piru Citrus Ass'n v. Williams, 95 Cal.App.2d 911, 914-916, 214 P.2d 426. These cases rely in part upon the general principle that the correctness of a court's order will be presumed, and they express the view that if the language used is susceptible of being interpreted as showing an intent to included insufficiency of the evidence as a ground, it should be so interpreted. This reasoning, however, is improper where a statute requires that the order 'shall so specify' the ground and that, if it does not, the absence of the ground 'will be conclusively presumed.' A reference merely to the issues raised by the pleadings fails to meet the requirement, because the pleadings, considered alone, do not disclose whether the evidence to be introduced at trial will present any substantial question as to sufficiency or weight of the evidence. The decisions of the District Courts of Appeal cited in this paragraph are disapproved insofar as they are inconsistent with the views expressed herein.

We are not concerned here with the cases which have held that an order granting a new trial with respect to the issues of excessiveness or inadequacy of damages constitutes a proper specification of the ground of insufficiency of the evidence as to those issues. E. g., Sinz v. Owens, 33 Cal.2d 749, 760-761, 205 P.2d 3, 8 A.L.R.2d 757; Kralyevich v. Magrini, 172 Cal.App.2d 784, 787 et seq., 342 P.2d 903; People ex rel. Department of Public Works v. McCullough, 100 Cal.App.2d 101, 104-105, 223 P.2d 37 (valuation); Cox v. Tyrone Power Enterprises, 49 Cal.App.2d 383, 389-390, 121 P.2d 829; cf. Secreto v. Carlander, 35 Cal.App.2d 361, 364-365, 95 P.2d 476. These cases, correctly or incorrectly, rely upon the theory that an order granting a new trial for excessive or inadequate damages necessarily includes a specification that the evidence is not sufficient to support the judgment. No such problem, of course, is presented here. We are likewise not concerned here with cases which hold that where the sole ground for new trial stated in the motion is insufficiency of the evidence, an order for new trial made without statement of any ground is adequate to show that it was granted on the ground of insufficiency of the evidence. E. g., Ice-Kist Packing Co. v. J. F. Sloan Co., 157 Cal.App.2d 695, 697-699, 321 P.2d 840; cf. Van Ostrum v. State of California, 148 Cal.App.2d 1, 4, 306 P.2d 44.

It follows from what we have said that the order of the trial court did not amount to a specification of insufficiency of the evidence as a ground for granting a new trial. However, in view of the fact that before we could reach this conclusion it was necessary to disapprove of cases upon which both the trial court and counsel may have relied with respect to the form of the order, we feel that we should not refuse to consider the ground of insufficiency of the evidence as a basis for the order. While it is true that ordinarily an overruling decision is deemed to state what the law was from the beginning and is therefore generally given retroactive effect, an exception has been applied in several instances with respect to procedural matters. In re Bine, 47 Cal.2d 814, 818, 306 P.2d 445; Phelan v. Superior Court, 35 Cal.2d 363, 371-372, 217 P.2d 951; see County of Los Angeles v. Faus, 48 Cal.2d 672, 680-681, 312 P.2d 680; cf. People v. Kitchens, 46 Cal.2d 260, 262-263, 294 P.2d 17; Barcelone v. Melani, 156 Cal.App.2d 631, 632-633, 320 P.2d 203; Parrott v. Furesz, 153 Cal.App.2d 26, 30-32, 314 P.2d 47. Under the circumstances of the present case it would be unfair to apply section 657 so as to deprive Aced of the possibility of having the order for a new trial sustained upon the ground of insufficiency of the evidence.

Hobbs contends that the order granting a new trial must be reversed because, it asserts, as a matter of law no decision may properly be reached other than the one originally made by the trial court. As separate reasons for this conclusion it argues that under the circumstances of this case there was no implied warranty of merchantability, that even if such a warranty existed there is no substantial evidence that it was breached, and that Aced's action is barred by the statute of limitations.

In determining whether there was an implied warranty of merchantability we must first consider whether, as found by the trial court, the transaction between the parties was a sale, in which event the warranty provisions of the Uniform Sales Act (Civ.Code, §§ 1734-1736)...