Bray v. Rosen

• Decision Date: 06 February 1959
• Citation: 335 P.2d 137,167 Cal.App.2d 680
• Parties: Stewart BRAY and Retha Bray, Plaintiffs and Respondents, v. Julian H. ROSEN, Defendant and Appellant. Civ. 5965.
• Court: California Court of Appeals Court of Appeals

Page 137

335 P.2d 137

167 Cal.App.2d 680

Stewart BRAY and Retha Bray, Plaintiffs and Respondents, v. Julian H. ROSEN, Defendant and Appellant.

Civ. 5965.

District Court of Appeal, Fourth District, California.

Feb. 6, 1959.

Miller, Nisson, Kogler & Wenke, Santa Ana, for appellant.

Jacobs, Jacobs, Hayden & Nelson, Santa Ana, for respondents.

SHEPARD, Justice.

This is an appeal by defendant from an order granting a new trial on the subject of damages alone. Plaintiff Retha Bray claimed whiplash injuries resultant from defendant's car striking the rear of the car in which she was riding. Defendant admitted liability but contested the amount of damages. A jury awarded damages in the amount of $5,000 to plaintiff against defendant. Plaintiff moved for a new trial on damages alone.

The notice of intention to move for a new trial gives as the grounds upon which said motion will be based:

'1. Misconduct of the jury.

'2. Inadequate damages, appearing to have been given under the influence of passion or prejudice.

'3. Insufficiency of the evidence to justify the verdict and judgment and that they are against the law.

'4. Error in law, occurring at the trial and excepted to by the party making the application.'

The court granted the motion and the only order appearing of record reads as follows:

'Motion for new trial having been taken under advisement and the Court having studied same, the Court now grants motion for new trial on damages only.'

There is no transcript of the argument on motion for a new trial.

Defendant in his appeal contends that the order is erroneous in that there was no misconduct of the jury and there was no error in law occurring at the trial and excepted to by the party making the application. The ground listed as inadequate damages appearing to have been given under the influence of passion or prejudice is not a ground separately recognized by our statutes as independent of the ground of 'insufficiency of the evidence to justify the verdict and judgment and that they are against the law.'

Plaintiff offered no affidavit in support of the ground of alleged misconduct of the jury. In her brief she does not point out any instances of such misconduct. This court's examination of the record does not disclose to us any such misconduct.

The plaintiff has not pointed out any 'error in law, occurring at the trial and excepted to by the party making the application', and we have been unable to find any such error of a prejudicial character in our perusal of the transcript of the proceedings.

The ground set forth as 'inadequate damages, appearing to have been given under the influence of passion or prejudice' is not in accordance with the statute and may be reached only under the ground of 'insufficiency of the evidence to justify the verdict and judgment and that they are against the law.' Bakurjian v. Pugh, 4 Cal.App.2d 450, 452(3), 41 P.2d 175; Lambert v. Kamp, 101 Cal.App. 388, 390(2), 281 P. 690; Ice-Kist Packing Co. v. J. F. Sloan Co., 157 Cal.App.2d 695, 696(1), 321 P.2d 840.

The ground 'insufficiency of the evidence to justify the verdict and judgment and that they are against the law' in reality divides itself into two parts. First is the insufficiency that arises in the mind of the trial judge when he weighs the conflicting evidence and finds that which supports the verdict and judgment weighs, in his opinion, less than that which is opposed to it. Peri v. Culley, 119 Cal.App. 117, 120(3), 6 P.2d 86; Harper v. Superior Air Parts, Inc., 124 Cal.App.2d 91, 94(4), 268 P.2d 115.

The second portion of this clause, that is, 'that they are against the law', includes the kind of a situation wherein 'the findings are so inconsistent, ambiguous, and uncertain that they are incapable of being reconciled and it is impossible to tell how a material issue is determined', and those cases in which 'the evidence is 'insufficient in law,' and without conflict in any material point.' But the words 'against the law' do not import a situation in which the court weighs conflicting evidence and merely finds a balance against the judgment. Renfer v. Skaggs, 96 Cal.App.2d 380, 382(1)(2), 215 P.2d 487, 489; Hawkinson v. Oesdean, 61 Cal.App.2d 712, 716(2), 143 P.2d 967.

Plaintiff contends that the verdict and judgment is against the law and apparently seeks to assert that there was no conflict in the evidence as to the amount of damage sustained. With this we are unable to agree. The plaintiff was in the court room and took the witness stand. She was herself physical evidence in the case. Her manner of testifying and the coherence and logic of her testimony were matters for the jury to weigh. There was a sharp conflict between plaintiff's and defendant's witnesses as to the weight of the blow struck on the rear of plaintiff's automobile. There was some divergence between plaintiff's witnesses on this same point. There is no way for us to know what the jury thought about some of the missing figures on the payroll records testified to on behalf of plaintiff. The medical testimony presented an osteopathic physician for plaintiff and a neuro-surgeon specialist for defendant. Their background of training was somewhat different. The defense witness testified that he 'thought she would be able to do the work--average work--of a woman her age.' He also reported that she had said to him that she had been working in her husband's business. He was...