Catania v. Halcyon Steamship Co.

• Decision Date: 08 January 1975
• Citation: 44 Cal.App.3d 348,118 Cal.Rptr. 513
• Court: California Court of Appeals Court of Appeals
• Parties: , 1975 A.M.C. 1314 James CATANIA, Plaintiff and Appellant, v. HALCYON STEAMSHIP COMPANY, Defendant and Respondent. Civ. 43709.

Page 513

118 Cal.Rptr. 513

44 Cal.App.3d 348, 1975 A.M.C. 1314

James CATANIA, Plaintiff and Appellant, v. HALCYON STEAMSHIP COMPANY, Defendant and Respondent.

Civ. 43709.

Court of Appeal, Second District, Division 4, California.

Jan. 8, 1975.

Kessler & Drasin and Arnold Kessler, Los Angeles, for plaintiff and appellant.

Samuel A. Keesal, Jr., and Forest L. Elliott, Jr., Long Beach, for defendant and respondent.

COLE, ^* Associate Justice (Assigned).

Plaintiff, a seaman, injured his finger while working aboard defendant's vessel. He brought this action, seeking damages under a theory of negligence pursuant to the Jones Act (46 U.S.C. § 688) and under a theory of unseaworthiness pursuant to general maritime law. The trial court granted defendant's motion for a directed verdict insofar as the unseaworthiness count was concerned. The jury returned a verdict for plaintiff under the Jones Act count. The trial court granted a motion for judgment notwithstanding the verdict, and plaintiff appealed the judgment. We reversed.

The Motion Was Granted In Time

We reject plaintiff's argument that the trial court lacked jurisdiction to grant this motion. In making this argument plaintiff relies upon that portion of section 629 of the Code of Civil Procedure which states '. . . The power of the court to rule on a motion for judgment notwithstanding the verdict shall not extend beyond the last date upon which it has the power to rule on a motion for a new trial . . ..' A motion for a new trial must be ruled upon within sixty days from and after the mailing of notice of entry of judgment. (Code of Civ.Proc., § 660.)

Such notice was mailed in the present case on April 17, 1973. On May 4, 1973, the court filed with the clerk a signed 'Memorandum of Opinion' which, after setting forth its reasons for the action, stated 'Motion for judgment notwithstanding the verdict, granted.' A minute order to the same effect was made. ¹ On July 9, 1973, more than sixty days after mailing of the notice of entry of judgment concerning the jury verdict, the judgment concerning defendant notwithstanding the verdict was signed. This last judgment was entered on July 10, 1973. Section 629 also provides that 'The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days' notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.' ²

Plaintiff relies upon the phrase 'shall render judgment' to support his argument that the trial court did not meet the statutory deadline. The reliance is misplaced.

As can be seen (fn. 2) section 629 has several provisions dealing with the Time within which action must be taken in connection with the granting of a motion for judgment notwithstanding the verdict. Thus the court 'shall not rule upon the motion' until the time for serving and filing a new trial motion has gone by. If the latter motion is filed, both it and the motion for judgment notwithstanding the verdict shall be ruled upon at the same time. And, as quoted above, the court's power to rule on the motion for judgment notwithstanding the verdict shall not extend beyond the last date for ruling upon new trial motions. This last provision was added to section 629 in 1951. In 1961, the statute was again amended to relieve a party of the burden of reserving the right to move for a new trial, and of making the two motions in the alternative, at the peril of losing the right to move for a new trial in the absence of such reservation. (Espinoza v. Rossini (1966) 247 Cal.App.2d 40, 45, 55 Cal.Rptr. 205.) At the time of the 1961 amendments the provisions requiring the court to wait for the time to move for a new trial, and then to rule upon both motions at the same time were added. The result is that the procedure for new trials, and for judgments notwithstanding the verdict was 'synchronized . . . containing the same time periods, time limits and consequences . . ..' (Espinoza v. Rossini, Supra, at 46, 55 Cal.Rptr. at 209.)

While section 629 deals explicitly with the Time for ruling on the motion, unlike section 660 relating to new trials, it dos not deal as explicitly with what constitutes a ruling. Under section 660 a new trial motion is determined either when an order ruling on the motion is entered in the permanent minutes of the court or is signed by the judge and filed with the clerk. We hold that, to maintain the synchronization of 'time periods, time limits and consequences' a decision of the trial court which is entered in the permanent minutes, or an order signed by the judge and filed with the clerk constitutes the ruling upon a motion for judgment notwithstanding the verdict which must be made within the prescribed time limits.

The fact that a formal judgment comporting with the court's decision to grant a motion for judgment notwithstanding the verdict is not signed or filed until after the expiration of the sixty-day period does not alter the situation. It is true that section 629 states that within the time limit the court 'shall render judgment' but that does not alter the situation. When the judge causes his order to be entered in the minutes, or when he files with the clerk a signed order to that effect, he has actually determined the issue. 'The 'decision' in a case tried without a jury normally consists of written findings of fact and conclusions of law, separately stated, and filed with the clerk (Code Civ.Proc. § 632); such 'decision' is the actual determination of the lawsuit. The judgment is the formal expression and evidence of that decision and should be Entered in conformity with it (Code Civ.Proc., § 664). The judgment is deemed Rendered when the decision is filed; its Rendition is a judicial act, its Entry is Ministerial. . . .' (Emphasis in the original.) (Gossman v. Gossman (1942) 52 Cal.App.2d 184, 196--197, 126 P.2d 178, 185.) Here, while the underlying lawsuit was, of course, heard by a jury, the motion was tried by the court itself. When the court signed and filed its 'Memorandum of Opinion' within sixty days after the mailing of notice of entry of judgment it ruled upon the motion and rendered judgment within the meaning of Gossman, supra, and of the term as used in section 629. This construction of the statute harmonizes it with its companion, section 660, and with what we believe to be the legislative intention.

On the Merits the Motion Was Erroneously Granted

In Smith v. Union Oil Co. (1966), 241 Cal.App.2d 338, 343--344, 50 Cal.Rptr. 499, 503, this court discussed the proper standard that governs in Jones Act cases as to when a judgment notwithstanding the verdict may be grnated: 'At least since 1957, it is firmly settled that, in cases arising under either the Jones Act or under the Federal Employers Liability Act, it is for the jury to determine whether or not the elements of liability exist and that a judgment notwithstanding the verdict may be granted only if, on no theory, could a verdict for plaintiff be supported. (Rogers v. Missouri Pacific Railroad Co. . . . (1957) 352 U.S. 500, 77 S.Ct. 443, (1 L.Ed.2d 493); and, to the same effect: Davis v. Baltimore & Ohio Railroad Co. (1965) 379 U.S. 671, 85 S.Ct. 636, 13 L.Ed.2d 594; Dennis v. Denver & Rio Grande Western R. Co. (1963) 375 U.S. 208, 84 S.Ct. 291, 11 L.Ed.2d 256; Basham v. Pennsylvania Railroad Co. (1963) 372 U.S. 699, 83 S.Ct. 965, 10 L.E. (sic) 2d 80; Gallick v. Baltimore & Ohio Railroad Co. (1962) 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618; McLaughlin v. Eastern Engineering Co., Inc. (D.C.E.D.Pa.1963) 218 F.Supp. 380.)'

Tested by this rule, it is clear that the judgment notwithstanding the verdict must be reversed.

In his complaint, plaintiff alleged that defendant was negligent, among other things, in failing to provide him with a safe place to work, in failing to provide him with proper and adequate tools, in failing to keep in order aboard the vessel safe, adequate and proper gear, equipment and appliances and in negligently maintaining a certain topping lift jumbo block.

Plaintiff was a seaman on defendant's ship. When the cargo booms were raised it was found that a block was not turning properly. It turned out to be frozen because one of its constructive parts, a 'shiv' was not turning. This condition, the plaintiff testified, can be caused by rust and is prevented by greasing the blocks.

Plaintiff was assigned the chore of freeing the block from its frozen position. To do that the block had to be disassembled by loosening a nut. Plaintiff testified that a bosun told him how to free the block. ³ To accomplish the job plaintiff was standing while straddling the boom and using the wrench. He had to hold on with one hand. With his left hand he placed the wrench on the nut. While applying pressure to see if the wedges he had inserted would hold, the wedges popped out and the wrench struck a finger on his right hand and fell. The wrench moved to where his right index finger was because '(t)he whole block just turned.'

In trying to loosen the nut plaintiff testified he was acting in accordance with instructions given to him by the bosun and did not do the work any differently than the bosun told him to do it. On cross-examination he testified that he did not think the job was being done in an unsafe way; that he had no quarrel with the instructions given to him by the bosun; that the tools used were the only tools on the job; and that they were the right tools.

The wrench broke the index finger of plaintiff's right hand. This is the injury for which damages were asserted.

Plaintiff continued to work for some time after the accident. He finally got the nut off after using a sledge hammer. He saw no evidence of any grease at all on the portion of the pin...