Kroiss v. Butler
| Decision Date | 15 December 1954 |
| Parties | Joseph L. KROISS, Plaintiff and Appellant, v. Marshall BUTLER et al., Defendants and Respondents. Civ. 20353. |
| Court | California Court of Appeals Court of Appeals |
Morton J. Salsberg, Reseda, for appellant.
Murchison & Cumming, Los Angeles, for respondent Butler.
The first cause of action of the complaint herein alleges that on November 30, 1952, defendant requested plaintiff to accompany him on a trip to hunt quail in Ventura county, in consideration of plaintiff's hunting experience and knowledge of the location of game in said locality.
Just before four o'clock in the afternoon of that day, defendant was driving his truck southerly on Highway 101, a divided freeway. Without warning to plaintiff, he crossed over to the opposite side of the freeway into the northbound traffic lane. And as he was so driving his truck unlawfully and negligently in a southerly direction on the wrong side of the freeway, he collided with an automobile traveling north in the northbound traffic lane.
The second cause of action alleges willful misconduct of defendant in the operation of his truck on the wrong side of the freeway.
The prayer of the complaint asks judgment for $158,000 against defendant for the alleged injuries sustained by plaintiff in the collision.
The answer admits that defendant and plaintiff were on a hunting trip and that a collision occurred. It denies generally and specifically every other allegation of the complaint. As an affirmative defense it is alleged 'that the accident, injuries and damages, if any, were caused by an unavoidable and inevitable accident', and that plaintiff was riding in the truck 'volumtarily, as a guest.'
At the conclusion of the trial on the issues so joined, defendant made a motion for a nonsuit and for a directed verdict which was denied. And the jury returned its verdict assessing plaintiff's damages at $17,300. On the very same day, i. e., July 15, 1953, defendant moved for judgment notwithstanding the verdict, reserving the right to move for a new trial. Argument on the motion was continued by stipulation until July 20th, at which time it was submitted.
In the meanwhile, i. e., on July 16, 1953, judgment on the verdict was filed and entered.
On August 7th, the court denied defendant's motion for judgment n. o. v. and the order of denial was filed on August 10th.
On August 15th, notice of entry of judgment was served by plaintiff on defendant and presented for filing.
On August 17th, defendant's notice of intention to move for a new trial was filed and September 25th was set as the date of hearing same.
On September 11th, plaintiff filed notice of intention to move to dismiss defendant's motion for new trial because it was filed too late. Plaintiff also filed notice of motion nunc pro tunc to correct date of entry of judgment from July 16 to August 7, pursuant to section 664, Code of Civil Procedure.
On September 30th, the trial court granted plaintiff's motion to correct date of entry of judgment, and also granted defendant's motion for a new trial. The court denied plaintiff's motion to dismiss defendant's motion for new trial.
Plaintiff has appealed from the order granting a new trial and also from the order denying his motion to dismiss defendant's motion for new trial.
It is first urged that the trial court was without jurisdiction to hear respondent's motion for new trial. This for the reason that the notice of intention to move for a new trial was not filed or served within the time prescribed by sections 629 and 659 of the Code of Civil Procedure, as amended in 1951.
Section 629, supra, has reference to motions for judgment notwithstanding the verdict. It provides, among other things, that such motion may be made either before or after entry of judgment reserving the right to move for a new trial, and if made after entry of judgment, it shall be made within the period specified by section 659, supra, as to filing and serving notice of intention to move for new trial.
Section 659, supra, reads as follows:
So far as this court has been able to ascertain, section 659 of the Code of Civil Procedure, as amended in 1951, has not been judicially construed.
However, in an article by Mr. Alexander Macdonald of the Los Angeles Bar, entitled 'New Procedure Affecting Motions for New Trial', published in the Journal of the State Bar of California, Vol. XXVI, page 299, it is stated at page 302:
(Emphasis added.)
Pursuant to section 629, supra, a motion for judgment notwithstanding the verdict may be made either before or after entry of the judgment. And it is obvious that the language used in section 659, supra, contemplates that a motion for a new trial may likewise be made either before or after entry of the judgment. In other words, a litigant may (1) either make his motion for a new trial before entry of the judgment and while his motion for judgment n. o. v. is pending, or (2) he may wait and make his motion for a new trial after his motion for judgment n. o. v. has been decided and the judgment entered.
Instead of moving for a new trial before the judgment was entered and while his motion for judgment n. o. v. was pending, respondent chose to follow subdivision (2) of section 659, supra: Entry of the judgment was automatically stayed by section 664, supra, until the court rendered its decision on the motion for judgment n. o. v., to-wit, on August 7, 1953. Respondent received notice of such entry on August 15, 1953. Two days later, on August 17th, he filed and served his notice of intention to move for a new trial. From this it follows, that the instant motion for new trial was made well within the ten day period prescribed by subdivision (2) of section 659, and the trial court had jurisdiction to hear and decide it.
Appellant next contends that the trial court abused its discretion by granting a new trial on the ground of insufficiency of the evidence to justify the verdict. This for the reason that he was a passenger for compensation, and that 'there was overwhelming evidence at the trial, and no evidence in contradiction thereto, to remove appellant from the status of a guest', as defined by section 403 of the Vehicle Code.
That section provides: 'No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of such vehicle or against any other person legally liable for the conduct of such driver on account of personal injury to or the death of such guest during such ride, unless the plaintiff in any such action established that such injury or death proximately resulted from the intoxication or wilful misconduct of said driver.'
Appellant testified that on the day in question he went to respondent's store to pick up some groceries. Respondent suggested that they go quail hunting that afternoon. Appellant was reluctant to accept because he had other work to do. Respondent persuaded him to go. It started to rain and they decided to call off the hunting trip. Appellant went on home. About one o'clock it cleared and respondent drove up to appellant's house and said: 'Let's go out and hunt, see if we can get some birds.'
They went out as far as Conejo grade in Venture County where they hunted on the south slope. Appellant further testified that he had been hunting quail for twenty or twenty-five years; that in tracking quail a hunter had to have knowledge of the type of terrain offering seclusion, cover and feed for the birds; ability to issue a quail call or whistle, and to recognize signs on the ground, i. e., tracks and wallows. When he started on this trip it was his purpose to use his ability and knowledge to locate quail. He had known respondent for seven or eight years. They were friends and had previously hunted quail at various places. On this particular occasion he agreed that respondent should use his truck for the trip, but there was no discussion as to payment of costs. Each man...
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