Ice-Kist Packing Co. v. J. F. Sloan Co., ICE-KIST

• Decision Date: 20 February 1958
• Docket Number: ICE-KIST,No. 17561,17561
• Citation: 321 P.2d 840,157 Cal.App.2d 695
• Court: California Court of Appeals Court of Appeals
• Parties: PACKING COMPANY, a copartnership, consisting of A. Sbrana and Julius Nucci, Plaintiff and Respondent, v. J. F. SLOAN CO., Defendant and Appellant.

Page 840

321 P.2d 840

157 Cal.App.2d 695

ICE-KIST PACKING COMPANY, a copartnership, consisting of A. Sbrana and Julius Nucci, Plaintiff and Respondent, v. J. F. SLOAN CO., Defendant and Appellant.

No. 17561.

District Court of Appeal, First District, Division 1, California.

Feb. 20, 1958.

Hoge, Fenton & Jones, Monterey, for appellant.

Noland, Hamerly & Etienne, Salinas, for respondent.

BRAY, Justice.

Plaintiff obtained a jury verdict of $649.35 damages. Upon its motion the court granted a new trial on damages alone. Defendant appeals.

Questions presented.

1. Is the order granting new trial on the issue of damages alone void?

2. Did the trial court abuse its discretion in granting a limited new trial? Corollary to this is defendant's contention that there was no evidence of its being negligent and that there was clear proof of its alleged defenses--contributory negligence and assumption of risk.

1. Order.

The notice of intention to move for new trial sought a new trial upon the issue of damages alone, and, in the alternative, on all issues upon the ground of 'insufficiency of the evidence to justify the verdict and that said verdict is against law in that said verdict * * * awarded damages which were grossly inadequate and in complete variance with the evidence presented and completely contrary to all the evidence.' By its own language the notice restricted the ground upon which the new trial was sought to insufficiency of evidence, as it appears that the only respect in which it was claimed that the verdict was against law was because of insufficiency of evidence. Moreover, it has been held that the ground 'against law' does not include insufficiency of the evidence. See Bakurjian v. Pugh, 4 Cal.App.2d 450, 453-454, 41 P.2d 175. That case also holds that the only ground upon which a new trial for inadequacy of damages may be granted is insufficiency of the evidence. Id., 4 Cal.App.2d at page 454, 41 P.2d at page 177; see also Peri v. Culley, 119 Cal.App. 117, 119, 6 P.2d 86; Harper v. Superior Air Parts, Inc., 124 Cal.App.2d 91, 268 P.2d 115; Legg v. Mutual Benefit Health & Accident of Omaha, 136 Cal.App.2d 887, 289 P.2d 550, 290 P.2d 87.

The minute order granting the new trial merely states 'the Court grants the motion.' Section 657, Code of Civil Procedure, provides that when a new trial is granted on the ground of insufficiency of evidence '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.'

No such order was filed. However, in view of the broad interpretation heretofore given this section by the courts, the purpose of the requirement that the ground be stated, the fact that here only one ground was specified in the motion and that that one ground was the only ground upon which the motion could have been granted, we deem that there was a sufficient compliance with the section. Dempsey v. Market Street R. Co., 23 Cal.2d 110, 142 P.2d 929, held that although the section seems to require the filing of a written order filed with the clerk the requirement of the section is met and no written order required if the minute order specifies the ground. The case stated that the section was to stop the practice theretofore existing by appellate courts of assuming that insufficiency of the evidence was the ground of the order granting the new trial where the order did not so state, and to require that it definitely appear that the new trial was granted on that ground, if it was. In Cox v. Tyrone Power Enterprises, 49 Cal.App.2d 383, 121 P.2d 829, 834, the minute order gave the ground as 'inadequate damages.' Here again it was contended that there had to be a formal order and that 'inadequate damages' was not 'insufficiency of the evidence.' In holding that there was a sufficient compliance with section 657, the court gave the history of the amendments to the section, and stated that the purpose of the section as amended was not only that given in the Dempsey case, but by enacting a time limit, to stop the practice of trial courts after the matter was on appeal of filing nunc pro tunc orders giving insufficiency of the evidence as a ground of the granting of the new trial. In the concurring opinion Mr. Justice Shinn stated (49 Cal.App.2d at page 400, 121 P.2d at page 839): 'I am unable to see that the provision of section 657, Code of Civil Procedure, which requires that an order granting a new trial upon the ground of insufficiency of the evidence shall so state, has any application to an order granting such a motion which has been noticed and presented upon that ground alone. * * * The uncertainty that had theretofore existed arose from the failure to state in orders granting new trials whether insufficiency of the evidence was one of the grounds or the sole ground for the order. Of course there never was any uncertainty in situations in which insufficiency of the evidence was specified in the notice of intention as the sole ground of the motion, which is the one before us. The order and the notice of intention must be read together.' That a technical construction of the section is not to be given is shown by the many cases in which a strict compliance with the section was not required. Many of these are set forth in Piru Citrus Ass'n v. Williams, 95 Cal.App.2d 911, 915, 214 P.2d 426. These included orders granting new trial 'on the ground of excessive damages,' 'upon all the grounds stated in the notice of intention,' an order providing that a new trial be granted 'as to all issues made by' the cross-complaint and the answer thereto,' an order stating that if the defendant consented to an increase of the verdict and judgment from $150 to $1,200, the motion for new trial would be denied, otherwise granted; an order granting new trial 'on all issues'; on the ground that the verdict was against the admissions of a party; upon the ground that the court had erred in denying motions for judgment of nonsuit; upon 'the ground alone of plaintiff's contributory negligence.'

As stated in the Cox case, supra, 49 Cal.App.2d at pages 401-402, 121 P.2d at page 839, the fact that in amending section 657 'it was not essential that corrective legislation be provided for those cases where no uncertainty existed does not necessarily limit the scope of the amendments but it does aid materially in ascertaining what the purpose and intention of the legislature were in amending the section. Where one construction of a statute will attribute to the legislature reasonable and purposeful motives and another will lead to absurd and unjust consequences which the legislature could not have reasonably or fairly intended to bring about, it is our duty to adopt the first construction if we can do so without exercising the forbidden legislative function. If we should hold that the amendments were intended to apply to the facts before us, where the sole ground of the motion was insufficiency of the evidence (laying aside for the moment the holding of the main opinion that the record shows full compliance), we would have to say that notwithstanding the indisputable fact that the motion was granted upon the sole ground of insufficiency of the evidence, it will be conclusively presumed that it was not. We would then have to reverse the order, not because of any uncertainty or deficiency of the record to speak the truth, but because we would have decided that the legislature, through ignorance or indifference, had imposed upon the courts a wholly superfluous formality of procedure which not only bordered upon the absurd, but served no purpose, accomplished no improvement over established practices, either by the correction of existing evils or otherwise, substituted fiction for fact in the courts' records, multiplied instead of reducing the opportunities for clerical errors, and without reason or necessity unjustly deprived a litigant of a substantial right.'

Since the amendment in 1939 to section 657 there have been a number of cases holding that the failure to specify that the order is made upon the ground of insufficiency of evidence, precludes the appellate court from considering that ground upon appeal from the order granting new trial. However, as above pointed out, there are exceptions to that holding. Moreover, we have failed to find in any of those cases upholding the general rule, that the motion for new trial was based only upon the ground of insufficiency of evidence.

It would be absurd, illogical and unjust to interpret section 657, which the cases hold was intended primarily to place a limit upon the time when the trial court could file an order nunc pro tunc, as meaning that where a motion for a new trial is based upon only one ground and that ground is the only one upon which the court could have acted, the order granting the motion is void.

Under the circumstances here, the order considered with the motion sufficiently shows that it was granted on the ground of insufficiency of the evidence. Therefore, in determining whether the court abused its discretion in granting the new trial on the limited issue of damages alone, it becomes our duty to review the evidence, not only with respect to the issue of damages but also to the issue of liability. See Bakurjian v. Pugh, supra, 4 Cal.App.2d 450, 454, 41 P.2d 175; Harper v. Superior Air Parts, Inc., supra, 124 Cal.App.2d 91, 92, 268 P.2d 115.

2. Abuse of Discretion.

At the trial there was practically no issue as to the extent and value of the damage. Defendant conceded that 14.22 acres of lettuce were damaged. The undisputed evidence showed the loss to be $397.98 per acre or $5659.28 for the 14.22 acres. Additionally there was a stipulated cost of $37.50 for surveying shown by plaintiff to be necessitated to mitigate damages. Total damage, $5696.78. Defendant in its closing brief...