Johnson v. Crosman Arms Co.
| Citation | 20 Cal.Rptr. 600,202 Cal.App.2d 31 |
| Court | California Court of Appeals Court of Appeals |
| Decision Date | 30 March 1962 |
| Parties | Lee Alvin JOHNSON, a minor by Floyd Johnson, his Guardian ad Litem, Plaintiff and Appellant, v. CROSMAN ARMS COMPANY, Inc., a foreign corporation, Defendant and Respondent. Civ. 25872. |
Martin, Hahn & Camusi, Los Angeles, for appellant.
Schell & Delamer, by Richard B. Goethals, Los Angeles, for respondent.
This appeal is from an order made granting defendant Crosman Arms Company, Inc., a new trial. The action was to recover for personal injuries and the jury returned its verdict for plaintiff. Immediately upon the return of the jury verdict, defendant's counsel orally moved for a judgment notwithstanding the verdict, requesting that argument thereon be held in abeyance and be heard in conjunction with a motion for new trial. After a discussion by the court and counsel with regard to the motion for judgment notwithstanding the verdict, the court directed the clerk to make a minute order which indicated defendant reserved the right to move for a new trial. Later, defendant filed its notice of a motion for judgment notwithstanding verdict or, in the alternative, for a new trial. Upon the hearing the trial court denied the motion for judgment notwithstanding verdict and made its order granting defendant's motion for a new trial. Plaintiff has appealed from such order on the ground that defendant's right to move for a new trial had been waived.
Plaintiff's contention on appeal is that defendant, in moving for judgment notwithstanding verdict, waived its right to move for a new trial by failing to move for judgment in the alternative form, asking therefor and reserving, if that be denied, the right to apply for a new trial.
On the date the oral motion for judgment notwithstanding the verdict was made, April 17, 1961, the second paragraph of section 629 of the Code of Civil Procedure read as follows:
* * *' [Italics added. 1
Plaintiff takes the position that regardless of the minute order made by the clerk when defendant's counsel moved orally for a judgment notwithstanding the verdict no reservation was made as to the right to move for a new trial; that unless such reservation is made it is clear from the statute mentioned that the right to apply for a new trial is waived.
The reporter's transcript indicates that after the jury rendered its verdict and was dismissed defendant's counsel requested permission to '* * * first make an oral motion * * * for a judgment notwithstanding the verdict,' which he explained '* * * will be supplemented by a motion for new trial * * *' to be filed later.
The court granted permission stating: 'I take it you are in effect making your motion for judgment notwithstanding the verdict now, with the understanding that argument thereon will be continued over, to be heard with and in conjunction with the motion for new trial.'
Upon affirmation by defendant's counsel that this was his intention the court directed an appropriate minute entry be made which was complied with by the clerk.
Plaintiff relies on the case of Estate of Jackson, 157 Cal.App.2d 198, 320 P.2d 563, to support his argument that defendant did not reserve his right to move for a new trial. In that case, two of the appellants had made, and the court denied, motions for judgment notwithstanding the verdict. Neither party moved in the alternative by asking and reserving the right to apply for a new trial. The trial court therefore refused to hear the motion for a new trial 'upon the ground of waiver evinced by failure to make the original, the oral, motions in the alternative.' (157 Cal.App.2d 203, 320 P.2d 567.) The appellate court concluded that there had been a waiver of the right to apply for a new trial.
In a later case, White v. Tacoma Lumber Sales, Inc., 192 A.C.A. 647, 13 Cal.Rptr. 708, before the entry of judgment, appellants made a motion for judgment notwithstanding the verdict. They did not at that time reserve the right to apply for a new trial. Later, they filed a notice of motion for a new trial and the trial court struck such motions and denied the motion for judgment notwithstanding the verdict. The appellate court followed the case of Estate of Jackson, supra, 157 Cal.App.2d 198, 320 P.2d 563, above mentioned, holding that appellants had waived the right to apply for a new trial by failing to contemporaneously reserve such right at the time they made a motion for judgment notwithstanding the verdict.
In two more recent cases the appellate courts have passed upon the same question but have reached a different result. In Agnew v. Cronin, 197 A.C.A. 565, 17 Cal.Rptr. 273, (November 30, 1961) plaintiff contended that defendants had waived their right to move for a new trial by having failed to reserve that right at the time they moved for judgment notwithstanding the verdict in accordance with the provisions of section 629 of the Civil Code of Procedure. The court held that the right to move for a new trial was not waived, saying at page 277 of 17 Cal.Rptr.: ...
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