Jones v. Evans

• Decision Date: 05 February 1970
• Citation: 4 Cal.App.3d 115,84 Cal.Rptr. 6
• Court: California Court of Appeals Court of Appeals
• Parties: Barbara JONES, a minor, by Leroy W. Jones, her Guardian ad Litem, Plaintiff, Appellant and Cross-Respondent, v. Robert L. EVANS, dba Auto Electric Car Co., Defendant, Respondent and Cross-Appellant. Civ. 34623.

Page 6

84 Cal.Rptr. 6

4 Cal.App.3d 115

Barbara JONES, a minor, by Leroy W. Jones, her Guardian ad Litem, Plaintiff, Appellant and Cross-Respondent, v. Robert L. EVANS, dba Auto Electric Car Co., Defendant, Respondent and Cross-Appellant.

Civ. 34623.

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

Feb. 5, 1970.

Rehearing Denied March 2, 1970.

Hearing Denied April 1, 1970.

Nathaniel J. Friedman, Los Angeles, for appellant and cross-respondent.

Stockdale, Estes & Bruggeman and Louis D. Estes, Los Angeles, for cross-appellant and respondent.

GUSTAFSON, Associate Justice.

On May 16, 1966, defendant Evans, a dealer in used electric cars and automobiles, sold a 12 year old Pontiac to Carrie V. Pickard, an elderly woman who had previously driven only electric cars which she had purchased from Evans. About three weeks later Mrs. Pickard drove the automobile in a negligent manner and seriously injured the plaintiff.

Plaintiff sued Evans and Pickard and the jury returned a verdict against both in the sum of $48,823. Defendant Evans moved for a judgment notwithstanding the verdict which was denied and for an order granting a new trial which was granted. Plaintiff appeals from the order granting the new trial and defendant Evans appeals from the judgment and from the order denying his motion for judgment notwithstanding the verdict.

Plaintiff first contends that the court lacked jurisdiction to grant the new trial. This contention is based on the facts that defendant Evans 'failed to file and serve notice' of the hearing on the motion for a new trial and that the only notice received was an 'informal notice' from the clerk. Plaintiff apparently believes that a notice of hearing on the motion for a new trial must be served and filed by the attorney for the opposing party. This belief is incorrect.

'(A) motion for a new trial is not such a motion as is 'noticed for hearing' under the practice and procedure with reference to motions made on notice by one party to another.' (Beck v. Superior Court of Mendocino County (1942) 20 Cal.2d 77, 124 P.2d 9.) When the date of the hearing is set, the clerk is required to give five days' notice thereof by mail to the parties. (Code Civ.Proc. § 661.) The statutes prescribe the method by which service is made by mail (Code Civ.Proc. § 1013) and the method by which the clerk proves that he has made service by mail. (Code Civ.Proc. § 1013a.) The record before us is deficient in that although plaintiff requested that there be included in the clerk's transcript the 'Clerk's notice of hearing' on the motion for new trial, the transcript contains neither a copy of the notice nor a copy of the certificate of service. It does recite, however, that on October 4, 1968, counsel were 'notified by U.S. mail' of the hearing set for 9:00 a.m., October 25, 1968. Since plaintiff's contention is that the notice should have been given by defendant Evans rather than by the clerk and since the plaintiff does not contend that the clerk failed to give adequate and timely notice, the deficiency in the record is immaterial.

Plaintiff's other contention is that the order granting the new trial does not, with respect to the third cause of action, state with sufficient specificity the 'grounds relied upon by the court'. (Code Civ.Proc. § 657.)

The case went to the jury on plaintiff's third, fourth and fifth causes of action against defendant Evans. The third cause of action alleged that defendant was negligent in selling the automobile to a person who he knew or should have known was likely to use the automobile in a manner involving unreasonable risk of physical harm to plaintiff and others. The fourth cause of action alleged that defendant was negligent in selling the automobile to Mrs. Pickard in that he knew or should have known that the automobile was mechanically defective. The fifth cause of action alleges that defendant was negligent in failing to inspect the automobile for defects before he sold it to Mrs. Pickard.

The jury was instructed on each of the three theories advanced by plaintiff. The verdict was general and it is impossible to ascertain therefrom which theory or theories formed the basis of the verdict. The trial court in its order granting the new trial said with respect to the third cause of action: 'The evidence failed to show any negligent entrustment. The vehicle was delivered to (Mrs. Pickard's) son without knowledge of defendant Evans that Mrs. Pickard intended to drive until qualified so to do. It was not negligence to sell the vehicle to her.' Had the grounds for the order been limited to those quoted, we would be obliged to determine whether they are sufficient under the principles set forth in Mercer v. Perez (1968) 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315. But the trial judge went on to state additional grounds for his order. These additional grounds are conceded by plaintiff to be sufficient to support the order granting the new trial as to the fourth and fifth causes of action. In the light of that concession, there is no alternative to affirming the order.

What plaintiff fails to perceive is that neither we nor anyone else can say that the verdict was founded solely on the theory set forth in the third cause of action. If, for example, the jury based its verdict solely on the theory set forth in the fourth cause of action, reversing the order granting the new trial would result in a judgment against defendant on evidence properly found insufficient by the trial judge. If the trial judge had expressly stated that he found no insufficiency of the evidence with respect to the third cause of action, but found that the evidence was insufficient with respect to the fourth and fifth causes of action, the result would be the same. Defendant would be entitled to a new trial and plaintiff would lose her judgment for the simple reason that no one can say that the verdict was based solely on the third cause of action. When the appeal is from the judgment based upon a general verdict, the 'rule may be stated as follows: Where several counts or issues are tried, a general verdict will not be disturbed by an appellate court if a single one of such counts or issues is supported by substantial evidence and is unaffected by error, although another is also submitted to the jury without any evidence to support it and with instructions inviting a verdict upon it.' (Posz v. Burchell (1962) 209 Cal.App.2d 324, 25 Cal.Rptr. 896.) That rule is based on the assumption that the jury found on the cause of action as to which there was substantial evidence and no error and is applicable only when there is an appeal from the judgment entered on the verdict. Plaintiff here vigorously asserts in response to defendant's appeal from the order denying a judgment notwithstanding the verdict that the verdict is supported by the evidence on each of the three causes of action. Logic dictates that we cannot assume that the verdict was based solely on the third cause of action. ¹

Because we affirm the order granting the new trial, there is no judgment and defendant's appeal therefrom is dismissed.

Defendant appeals from the order denying his motion for judgment notwithstanding the verdict. If a trial judge were precluded from granting a new trial on the ground of insufficiency of the evidence to support a verdict for plaintiff unless he could say as a matter of law that there was no substantial evidence to support the verdict, the corollary would be that judgment for defendant notwithstanding the verdict would automatically follow. ² But from 1872 to 1965 the test employed to determine whether an order granting a new trial on insufficiency of the evidence was proper was whether there was any substantial evidence to support a verdict for the party making the motion for new trial. As amended in 1965 and 1967, the pertinent portion of section 657 of the Code of Civil Procedure now reads: 'A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict * * * unless after weighing the evidence the court is convinced from the...