Butler v. Schefers
| Decision Date | 30 September 1966 |
| Citation | 245 Cal.App.2d 330,53 Cal.Rptr. 869 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Lily BUTLER, Plaintiff and Appellant, v. Linus A. SCHEFERS, Defendant and Respondent. Civ. 28850. |
Smith, Parrish, Paduck & Clancy and Thomas Schneider, Oakland, for plaintiff and appellant.
Edison J. Demler, Long Beach, and James T. Perona, Los Angeles, for defendant and respondent.
In this action for personal injuries arising out of an automobile accident the jury returned a verdict in favor of plaintiff for $850, and on February 28, 1964, judgment was entered thereon. Plaintiff deemed this judgment insufficient and moved for a new trial upon the following grounds:
'1. Insufficiency of the evidence to justify the verdict;
After hearing the motion the court made a minute order dated April 23, 1964, which contains this language:
On April 30, 1964, defendant filed a document declaring that he consented to pay plaintiff $1,850 damages, plus costs, pursuant to the court's order of April 23.
No order amending the judgment was made. Counsel inform us in their briefs that after the court made its order of April 23, 1964, it discovered that the order was erroneous under Dorsey v. Barba, 38 Cal.2d 350, 240 P.2d 604, which holds that it is improper to modify a judgment upward without plaintiff's consent as a condition to denying plaintiff's motion for a new trial.
Plaintiff thereupon gave notice of appeal from the judgment and from the minute order of April 23, 1964. The record on appeal consists only of a clerk's transcript. There is nothing in this record to show that the judgment was erroneous in any respect. But neither party contends that this judgment remains in force. They agree that it was vacated by the order granting a new trial. Defendant's brief informs us that he filed with the trial court and served on plaintiff's counsel a notice of his consent to stipulate that there be a retrial on all issues. The sole contention made by plaintiff is that the order granting the new trial should be construed or modified so as to provide for a new trial on the issue of damages only.
There is nothing in the record on appeal to support the theory that the trial court granted or should have granted a new trial limited to the issue of damages. The notice of motion asks only for 'a new trial' without suggesting any limitation. Although this form of motion would not have prevented the trial court from ordering a limited new trial. (Garcia v. San Gabriel Ready Mixt., 173 Cal.App.2d 355, 343 P.2d 327; see Hamasaki v. Flotho, 39 Cal.2d 602, 611, 248 P.2d 910) the form of the motion is of some relevance in construing the order made in response to it. (Cox v. Tyrone Power Enterprises, 49 Cal.App.2d 383, 389, 121 P.2d 829; Tripcevich v. Compton, 25 Cal.App.2d 188, 77 P.2d 286.)
The order itself simply states 'Plaintiff's motion for new trial is granted. * * *' Since neither the notice of motion nor the order granting it places any limitation upon the scope of the new trial, we must conclude that a full new trial is granted.
The statement in the order that 'the amount of damages awarded by the jury are inadequate' does not necessarily mean that the new trial is or should be limited to the damage issue. On the contrary, an inadequate verdict may have been returned because the jurors could not agree upon the issue of liability, and so they compromised with a small award to the plaintiff. In Rose v. Melody Lane of Wilshire, 39 Cal.2d 481, 247 P.2d 335, the Supreme Court held that under the circumstances shown by the evidence in that case it was an abuse of discretion for the trial court to limit the new trial to the issue of damages. The court said at page 489, 247 P.2d page 340:
'When the jury fails to compensate 489, 247 P.2d at page 340: by the evidence, and despite the fact that his injuries have been painful, makes no award or allows only a trifling sum for his general damages, the only reasonable conclusion is that the jurors compromised the issue of liability, and a new trial limited to the damages issue is improper.'
Since the evidence in the case at bench was not made a part of the record on appeal, we cannot say that the trial court abused its discretion in granting a complete new trial. That question has not been raised here, and could not be, on this kind of a record. 1 We simply point out that there is no...
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