Garcia v. San Gabriel Ready Mixt

• Decision Date: 27 August 1959
• Citation: 343 P.2d 327,173 Cal.App.2d 355
• Parties: Mariano GARCIA, Plaintiff and Respondent, v. SAN GABRIEL READY MIXT, a California corporation, Albert C. Strinz, Defendants and Appellants. Civ. 23691.
• Court: California Court of Appeals Court of Appeals

Page 327

343 P.2d 327

173 Cal.App.2d 355

Mariano GARCIA, Plaintiff and Respondent, v. SAN GABRIEL READY MIXT, a California corporation, Albert C. Strinz, Defendants and Appellants.

Civ. 23691.

District Court of Appeal, Second District, Division 2, California.

Aug. 27, 1959.

Hearing Denied Oct. 20, 1959.

Schell, Delamer & Loring, Lee Solomon, Los Angeles, for appellants.

David Hoffman, Los Angeles, for respondent.

ASHBURN, Justice.

Plaintiff was awarded $25,000 by a jury for personal injuries. Defendants moved for a new trial specifying six grounds, two of which were: '1. Insufficiency of the evidence to justify the verdict and judgment', and '4. Excessive damages appearing to have been given under the influence of passion and prejudice.' The motion was granted and the order states: 'Motion of Defendants for a new trial herein is granted on the issue of damages only, on the grounds of excessive damages and insufficiency of the evidence to sustain the verdict.' Plaintiff filed notice of appeal from this order but his appeal was dismissed. Defendants appeal from the judgment and from the order granting a new trial, contending that the court abused its discretion in limiting the new trial to the single issue of damages and that the only proper order would be one granting a new trial on all of the issues.

Spencer v. Nelson, 30 Cal.2d 162, 164, 180 P.2d 886, 887 establishes that defendant properly may appeal from the order. 'The circumstance that this case is unusual in its facts, in that normally the party against whom the new trial is granted is the one who appeals, is immaterial; any party aggrieved by an appealable order has a right to appeal therefrom, even though the order is in form apparently favorable to him.'

Appellants' argument appears to be that the proper interpretation of the court's order--'on the grounds of excessive damages and insufficiency of the evidence to sustain the verdict'--is that the damages were excessive because given under influence of passion and prejudice. They say: '* * * the order of the trial court, specifying insufficiency of the evidence to sustain the verdict, is intelligible only if it is interpreted to mean that the evidence does not sustain a verdict as large as the one rendered. This being the case, the second part of the order, namely, excessive damages, can be explained only by assuming that the trial judge, in addition to finding the evidence insufficient to sustain so large a verdict, had in mind a further irregularity in the verdict of the jury, namely, passion and prejudice, ordinarily implied in excessiveness. * * *' It is then further argued that where damages are excessive because of passion and prejudice, there must be a new trial on all issues where the issue of liability is extremely close and appellants are entitled to the verdict of an impartial jury on all issues, including that of liability. In other words, that the passion and prejudice probably extended to their consideration of the liability issue as indicated by the large verdict,--appellants thus contending for the reasoning stated in some of the cases wherein a new trial was granted for inadequate damages.

Appellants concede, as they must, that an order granting a new trial because of excessive damages will be sustained even if there is no showing of passion or prejudice (Koyer v. McComber, 12 Cal.2d 175, 82 P.2d 941), but it is pointed out that a new trial on all issues was granted in Koyer. It is further conceded that the trial court may deny a new trial on the ground of excessive damages on condition of a remission of a part of the verdict, 'but we have not been able to find any cases in which the damages were considered excessive and where the retrial was properly limited to the issue of damages.' However, upon respondent's citation of several cases (discussed later), appellants state in their reply brief that what they meant to say was that there are no cases in which a new trial was limited to damages only where the damages were considered excessive in the sense that they were the result of passion and prejudice.

It is difficult to follow appellants' reasoning to the effect that the order necessarily infers excessive damages due to passion and prejudice when the order specifically omitted this phrase and appellants fail to point out wherein such passion or prejudice exists. It is stated in Koyer v. McComber, supra, 12 Cal.2d 175, 182, 82 P.2d 941, 945: '* * * where a trial court grants a new trial upon the ground that the verdict is excessive, the declaration of the court that it is excessive does not necessarily mean that the trial court was of the opinion that the verdict was the result of passion or prejudice. It is susceptible of the interpretation that the trial court was not satisfied that the finding of the jury as to the extent of damage suffered by the plaintiff was supported by the evidence adduced upon that phase of the case.' Van Ostrum v. State of California, 148 Cal.App.2d 1, 7, 306 P.2d 44, 49: 'The trial judge had the duty as well as the power to set aside the verdict when he found, pursuant to his own independent appraisal of the evidence, that it did not support an award of $4,000; it was not necessary for him to find passion or prejudice on the part of the jurors.' See also, Sinz v. Owens, 33 Cal.2d 749, 760, 205 P.2d 3, 8 A.L.R.2d 757; Hughes v. Hearst Publications, Inc., 79 Cal.App.2d 703, 705, 180 P.2d 419; Strosk v. Howard Terminal Co., 129 Cal.App.2d 797, 801-802, 277 P.2d 828.

In the instant case the order specifically states insufficiency of the evidence as a ground. This is strictly in accordance with the provisions of Code of Civil Procedure, § 657, which provides for a new trial on all or part of the issues for '5. Excessive damages * * *. 6. Insufficiency of the evidence to justify the verdict * * *. 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. * * *'

'It has long been established that it is within the power of the trial court, where the issues of a cause are distinct and separable, to grant a new trial of one issue while refusing it as to the others. Such an order will not be reversed in the absence of a showing of an abuse of discretion.' Crandall v. McGrath, 51 Cal.App.2d 438, 439, 124 P.2d 858, 859; see also, Adams v. Hildebrand, 51 Cal.App.2d 117, 118, 124 P.2d 80. That the issue of liability in a personal injury case generally is severable from the issue of damages has long been recognized. Brush v. Kurstin, 11 Cal.App.2d 258, 262, 53 P.2d 777; Hoffart v. Southern Pac. Co., 33 Cal.App.2d 591, 602-603, 92 P.2d 436; Bauman v. City and County of San Francisco, 42 Cal.App.2d 144, 160, 108...