Frantz v. McLaughlin

• Court: California Supreme Court
• Writing for the Court: BURKE; TRAYNOR
• Citation: Frantz v. McLaughlin, 51 Cal.Rptr. 282, 64 Cal.2d 622, 414 P.2d 410 (Cal. 1966)
• Decision Date: 24 May 1966
• Docket Number: S.F. 22258
• Parties: , 414 P.2d 410 Linda FRANTZ, a Minor, etc., Plaintiff and Respondent, v. Marvin A. McLAUGHLIN, Defendant and Appellant. In Bank

Page 282

51 Cal.Rptr. 282

64 Cal.2d 622, 414 P.2d 410

Linda FRANTZ, a Minor, etc., Plaintiff and Respondent, v. Marvin A. McLAUGHLIN, Defendant and Appellant.

S.F. 22258.

Supreme Court of California,

In Bank.

May 24, 1966.

Clifford H. Plumley, Madera, for defendant and appellant.

Kane & Canelo, Merced and Cyril Viadro, San Francisco, for plaintiff and respondent.

BURKE, Justice.

Defendant McLaughlin appeals from an order granting a motion for a new trial in a personal injury action. We have concluded that no ground for reversal is shown, and that the order should be affirmed.

Plaintiff, a 17-year-old girl appearing by guardian ad litem, was participating in a float in a parade. As a part of the planned demonstration plaintiff, with other participants on the float, would occasionally jump off and pretend to push the float. While doing this plaintiff's foot was run over and injured.

Plaintiff's action for damages named five defendants, three of whom settled out of court for the total sum of $1,250. Following trial against the other two defendants, including McLaughlin, the court sitting without a jury rendered judgment in favor of plaintiff and against both defendants in the sum of $3,000 damages plus costs of suit.

Plaintiff filed a motion for a new trial specifying six grounds, including that of 'Insufficiency of the evidence to justify the decision, or that it is against law.' ¹ The court took the motion under submission and within the time allowed by law made the following order, from which McLaughlin took this appeal:

'The MOTION FOR NEW TRIAL * * * having been heretofore submitted to the Court * * * and after due consideration thereof, it is ordered that Motion for New Trial is Granted solely on the issue of damages alone.' (Italics added.)

At the time the order was made (October 1964) section 657 of the Code of Civil Procedure provided in pertinent part that 'When a new trial is granted, on all or part of the issues, upon the ground of the insufficiency of the evidence to sustain the verdict or decision, 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.'

Plaintiff points to nothing in the record that would support an order granting a new trial on any of the grounds specified in the motion except insufficiency of the evidence. The record is, however, adequate to justify an order based on that ground. Plaintiff's evidence indicated that she had been severely and permanently injured, and it is undisputed that her medical and hospital expenses to the date of trial exceeded $2,350. That amount deducted from $4,250 ($1,250 settlement plus $3,000 court award) leaves only some $1,900 for general damages.

The question thus presented is whether or not on this appeal the court's order granting a new trial 'solely on the issue of damages alone' may properly be treated as an order based upon the ground of insufficiency of the evidence.

As stated in Aced v. Hobbs-Sesack Plumbing co. (1961) 55 Cal.2d 573, 578, 12 Cal.Rptr. 257, 259, 360 P.2d 897, 899, 'Section 657 discloses an intent that the required written specification be made in some unmistakable way (citation), 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. (Citations.) 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. (Citations.)'

Although Aced holds (pp. 577, 579(7) of 55 Cal.2d, p. 259 of 12 Cal.Rptr., p. 899 of 360 P.2d) that an order granting a new trial 'upon the issues set forth by the cross-complaint' did not amount to a specification of insufficiency of the evidence as a ground, the opinion further notes (p. 579, 12 Cal.Rptr. 257, 360 P.2d 897) that a number of cases 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, relying upon the theory that an order granting a new trial for excessive or inadequate damages...