Gonzalez v. Derrington

CourtCalifornia Court of Appeals
Writing for the CourtKINCAID; FOX, P. J., and ASHBURN
Citation10 Cal.Rptr. 700
PartiesJeseph Andalon GONZALEZ and Camerina Gonzalez, Plaintiffs and Appellants, v. Oliver B. DERRINGTON et al., Defendants, Union Oil Company of California, a corporation; Campbell P. Ledgerwood, Respondents. Pearl SMALDINO and Leonard Smaldino, an incompentent, by and through his Guardian Edna McCamley, heirs of Antonio Mike Smaldino, deceased, Plaintiffs and Appellants, v. William T. NORMAN et al., Defendants, Union Oil Company of California, a corporation, Oliver B. Derrington, Campbell P. Ledgerwood, Respondents. Barbara Lee SPINELLI, Plaintiff and Appellant, v. Oliver B. DERRINGTON et al., Defendants, Union Oil Company of California, a corporation; Campbell P. Ledgerwood, Respondents. Eleanor M. KESTEL and Alfred M. Robinson, Plaintiffs and Appellants, v. UNION OIL COMPANY OF CALIFORNIA, a corporation, et al., Defendants, Union Oil Company of California, a corporation, Oliver B. Derrington, Campbell P. Ledgerwood, Respondents. Civ. 24459-24462.
Decision Date30 January 1961

Page 700

10 Cal.Rptr. 700
Jeseph Andalon GONZALEZ and Camerina Gonzalez, Plaintiffs and Appellants,
v.
Oliver B. DERRINGTON et al., Defendants,
Union Oil Company of California, a corporation; Campbell P. Ledgerwood, Respondents.
Pearl SMALDINO and Leonard Smaldino, an incompentent, by and through his Guardian Edna McCamley, heirs of Antonio Mike Smaldino, deceased, Plaintiffs and Appellants,
v.
William T. NORMAN et al., Defendants,
Union Oil Company of California, a corporation, Oliver B. Derrington, Campbell P. Ledgerwood, Respondents.
Barbara Lee SPINELLI, Plaintiff and Appellant,
v.
Oliver B. DERRINGTON et al., Defendants,
Union Oil Company of California, a corporation; Campbell P. Ledgerwood, Respondents.
Eleanor M. KESTEL and Alfred M. Robinson, Plaintiffs and Appellants,
v.
UNION OIL COMPANY OF CALIFORNIA, a corporation, et al., Defendants,
Union Oil Company of California, a corporation, Oliver B. Derrington, Campbell P. Ledgerwood, Respondents.
Civ. 24459-24462.
District Court of Appeal, Second District, Division 2, California.
Jan. 30, 1961.
Rehearing Denied Feb. 24, 1961.
Hearing Granted March 29, 1961.
Opinion vacated 14 Cal.Rptr. 1.

Page 701

E. Arnold Oppenheim, Harney, Drummond & Dorsey, R. E. Schlottman, Hahn, Ross & Saunders, Los Angeles, and Helm & Budinger, Studio City, for appellants.

Veatch, Thomas & Carlson, Henry F. Walker, Gibson, Dunn & Crutcher, Sherman Welpton, Jr., and F. Lee Coulter, Jr., Los Angeles, for respondents.

KINCAID, Justice pro tem.

The appeals herein involve four separate actions for personal injuries and wrongful death which were consolidated for purposes of trial. The actions arise out of an explosion

Page 702

and fire that occurred on April 4, 1957, in a cafe known as the Mecca Club, located in Los Angeles. Jury verdicts were returned in favor of the respective plaintiffs and for those defendants who were owners and employees of the Mecca Club but against defendants Oliver B. Derrington, Campbell P. Ledgerwood and Union Oil Company of California as follows: $45,000 for plaintiffs Joseph Gonzalez and Camerina Gonzalez, $100,000 for plaintiff Barbara Lee Spinelli, $45,000 for plaintiffs Pearl Smaldino, et al., and $12,000 for plaintiffs Eleanor Kestel, et al.

The defendants against whom such verdicts were returned, made and filed motions for a judgment notwithstanding the verdict and in the alternative, for a new trial.

Thereafter the court made its order setting aside the said verdicts as against the defendant Union Oil Company of California and ordered judgments entered in each case in favor of said defendant; and, in the alternative granted the motion of said defendant for a new trial in each case on the ground of insufficiency of the evidence to sustain the verdicts. The court further denied the motions made by defendants Derrington and Ledgerwood for judgments notwithstanding the verdicts but granted their respective motions for a new trial in each case on the ground of the insufficiency of the evidence to sustain the verdicts. Additionally the court granted the motions of defendants to strike the memorandum of costs and disbursements theretofore filed by plaintiffs Gonzalez.

All plaintiffs, other than Spinelli, appeal from the orders made granting the motion of defendant Union for judgment notwithstanding the verdict. All plaintiffs, including Spinelli, appeal from said judgments and from the orders granting the defendants new trials. Plaintiffs Gonzalez further appeal from the order made striking their memorandum of costs. As an order granting a motion for judgment notwithstanding the verdict is not appealable (Teich v. General Mills, Inc., 170 Cal.App.2d 791, 794, 339 P.2d 627) the attempted appeals therefrom must be dismissed. The merits of the ruling are reviewable upon the appeals from the judgments.

Where a motion for judgment notwithstanding the verdict is made and, contemporaneously therewith, the alternative motion for a new trial is made, the court shall pass upon both of them. If the court grants both motions the order granting a new trial shall be effective only if, on appeal, the judgment notwithstanding the verdict is reversed and the order granting the new trial is not appealed from or, if appealed from, is affirmed. Code Civ.Proc. § 629.

A motion for judgment notwithstanding the verdict should be granted only if it appears from the evidence and the reasonable inferences therefrom, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. The rules governing a motion for judgment notwithstanding the verdict are the same as those applicable to the determination of the motion for judgment of nonsuit and for a directed verdict. Sparks v. Allen Northridge Market, 176 Cal.App.2d 694, 699, 1 Cal.Rptr. 595.

On appeal from a judgment notwithstanding the verdict, the evidence and all reasonable inferences therefrom must be viewed most strongly in favor of the verdict, and all conflicts, if any, resolved in favor of the verdict so that if there is any substantial evidence to support the verdict, the judgment must be reversed. Parker v. City & County of San Francisco, 158 Cal.App.2d 597, 602, 323 P.2d 108.

In passing on a motion for new trial based on insufficiency of the evidence, it is the exclusive province of the trial court to judge the credibility of witnesses, determine the probative force of testimony, and weigh the evidence. The trial court, in considering the sufficiency of evidence on a motion for new trial based on insufficiency of evidence, may draw inferences opposed to those drawn at the trial, and where the only conflicts consist of inferences deduced

Page 703

from uncontradicted probative facts, the court may resolve such conflicts in determining whether the case should be retried. An appellate court will reverse a trial court's order granting motion for new trial for insufficiency of evidence only where it can be said as a matter of law that there is no substantial evidence to support a contrary judgment. Richardson v. Ham, 44 Cal.2d 772, 775, 285 P.2d 269; Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 307, 163 P.2d 689; Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 359, 170 P.2d 465.

Statement of Facts

On the night of April 4, 1957, four men, Clyde Bates, Manuel Chavez, Manuel Hernandez and Oscar Brenhaug, entered the Club Mecca. All had been drinking intoxicants elsewhere and they continued to drink over a period of time while at said cafe. Bates and Chavez in particular became belligerent after the bartender refused to further serve them. An altercation ensued and the four men were physically ejected from the premises. Scuffling took place on the sidewalk in front of the cafe during which Chavez endeavored to strike one of the customers and in missing his target fell down and otherwise evidenced difficulty in maintaining his balance. When they were leaving, Bates threatened: 'We will be back' or some similar statement. Bates and Chavez then walked to the Union Oil Station located at 5720 South Vermont Avenue, approximately six or seven blocks distant. When they entered the service station premises Bates was carrying a five-gallon open paint bucket.

Ledgerwood testified he was employed by Derrington as a service station attendant at the above location. About 11:30 p. m. on April 4, 1957, he saw Bates and Chavez walk onto the station grounds. Bates was carrying a five-gallon black bucket that had paint running down the sides, both inside and out. It was an open bucket with a wire hendle. Bates asked to have it filled with gasoline. Ledgerwood looked into the bucket and saw about a pint of dried paint therein together with a lot of grass clippings and dirt as though it had been sitting for some time.

Bates said 'Fill it up, Buddy.' Then three cars came in, 'so I just turned the pump on and I put in exactly 4.9 gallons. At that time it was 28.9 cents per gallon and it came to $1.45.' After Ledgerwood put the gasoline into the bucket, he said something to the effect that 'you're going to have a lot of trouble getting that car started with this.' Bates said, 'Oh, that's all right. We'll take care of that.' He later testified that he told them they were going to have trouble with the dirt before he filled the bucket with gasoline. Ledgerwood confirmed that at the time of the taking of his deposition the following questions were asked of him and he gave the following answers: 'Q. Did they tell you what they wanted the gasoline for? A. No. Well, I'll correct that now. He said, 'We run out of gas.' That's all they said, 'run out of gas.' So I says--I put the gas in the bucket--and I told them I had to leave it, you know, so it wouldn't splash out when they were carrying it. So I said, 'You're going to have a heck of a lot of trouble if you put that in that bucket, that gas. You're going to have trouble starting it.' And he says, 'Oh, that's all right. We'll take care of that.' So I just let it go at that.' When the two men came into the station with the open bucket, he did not ask them what they intended to do with or use the gasoline for.

At that time, Bates and Chavez were standing on the other side of the bucket, 'about 3 1/2 feet between us.' Asked whether he observed at that time that either Bates or Chavez had been drinking intoxicating liquor, he answered, 'I can't say. I couldn't smell a thing and, of course, there was a little breeze behind me; but I didn't smell anything.' He did not notice anything that was not normal about Bates' manner of speaking. They were not belligerent in any manner.

After he had received payment for the 4.9 gallons of gasoline, the next thing he did was to wait on one of the other cars.

Page 704

He saw Bates and Chavez leave the station; they were walking. They went south on Vermont, they crossed over to the west side of the street and then turned to their left toward Slauson. He watched them walk...

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4 practice notes
  • Mezerkor v. Texaco, Inc.
    • United States
    • California Court of Appeals
    • September 26, 1968
    ...14 S.E.2d 704; Boronskis v. Texas Co. (1962) 344 Mass. 477, 183 N.E.2d 127; and see discussion Gonzalez v. Derrington (Cal.App.1961) 10 Cal.Rptr. 700, 710--716, vacated and determined on other grounds (1961) 56 Cal.2d 130, 363 P.2d Workmen's Compensation: Brietigam v. Industrial Acc. Comm. ......
  • Simpson v. Union Oil Company of California, No. 22148.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 12, 1969
    ...Cas. Par. 69, 212 (1958); Shasta Douglas Oil Co. v. Work, 212 Cal.App.2d 618, 28 Cal.Rptr. 190 (1963); Gorzalez v. Derrington, Cal.App., 10 Cal.Rptr. 700, 717 (1961), modified on other grounds 56 Cal.2d 130, 14 Cal. Rptr. 1, 363 P.2d 1 (1961); Westinghouse Electric Corp. v. Lyons, 125 N.Y.S......
  • Vargas v. Ruggiero
    • United States
    • California Court of Appeals
    • December 6, 1961
    ...tenable theory of liability.' (See also Sparks v. Allen Northridge Market, 176 Cal.App.2d 694, 1 Cal.Rptr. 595; Gonzales v. Derrington, 10 Cal.Rptr. 700 1; Hozz v. Felder, 167 Cal.App.2d 197, 334 P.2d 159; Kirk v. Los Angeles Ry. Corp., 26 Cal.2d 833, 161 P.2d 673, 164 A.L.R. 1; Jones v. Ho......
  • Shasta Douglas Oil Co. v. Work
    • United States
    • California Court of Appeals
    • February 4, 1963
    ...to sell the goods of the consignor. (United States v. Standard Oil Co., D.C., 78 F.Supp. 850, 854; Gonzalez v. Derrington, Cal.App., 10 Cal.Rptr. 700, pp. 710-717; United States v. General Elec. Co., 272 U.S. 476, 47 S.Ct. Page 194 192, 71 L.Ed. 362; Cole Motor Car Co., v. Hurst, 5 Cir., 22......
4 cases
  • Mezerkor v. Texaco, Inc.
    • United States
    • California Court of Appeals
    • September 26, 1968
    ...14 S.E.2d 704; Boronskis v. Texas Co. (1962) 344 Mass. 477, 183 N.E.2d 127; and see discussion Gonzalez v. Derrington (Cal.App.1961) 10 Cal.Rptr. 700, 710--716, vacated and determined on other grounds (1961) 56 Cal.2d 130, 363 P.2d Workmen's Compensation: Brietigam v. Industrial Acc. Comm. ......
  • Simpson v. Union Oil Company of California, No. 22148.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 12, 1969
    ...Cas. Par. 69, 212 (1958); Shasta Douglas Oil Co. v. Work, 212 Cal.App.2d 618, 28 Cal.Rptr. 190 (1963); Gorzalez v. Derrington, Cal.App., 10 Cal.Rptr. 700, 717 (1961), modified on other grounds 56 Cal.2d 130, 14 Cal. Rptr. 1, 363 P.2d 1 (1961); Westinghouse Electric Corp. v. Lyons, 125 N.Y.S......
  • Vargas v. Ruggiero
    • United States
    • California Court of Appeals
    • December 6, 1961
    ...tenable theory of liability.' (See also Sparks v. Allen Northridge Market, 176 Cal.App.2d 694, 1 Cal.Rptr. 595; Gonzales v. Derrington, 10 Cal.Rptr. 700 1; Hozz v. Felder, 167 Cal.App.2d 197, 334 P.2d 159; Kirk v. Los Angeles Ry. Corp., 26 Cal.2d 833, 161 P.2d 673, 164 A.L.R. 1; Jones v. Ho......
  • Shasta Douglas Oil Co. v. Work
    • United States
    • California Court of Appeals
    • February 4, 1963
    ...to sell the goods of the consignor. (United States v. Standard Oil Co., D.C., 78 F.Supp. 850, 854; Gonzalez v. Derrington, Cal.App., 10 Cal.Rptr. 700, pp. 710-717; United States v. General Elec. Co., 272 U.S. 476, 47 S.Ct. Page 194 192, 71 L.Ed. 362; Cole Motor Car Co., v. Hurst, 5 Cir., 22......

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