Kroiss v. Butler

CourtCalifornia Court of Appeals
Writing for the CourtDRAPEAU; WHITE, P. J., and DORAN
Citation277 P.2d 873,129 Cal.App.2d 550
Decision Date15 December 1954
PartiesJoseph L. KROISS, Plaintiff and Appellant, v. Marshall BUTLER et al., Defendants and Respondents. Civ. 20353.

Page 873

277 P.2d 873
129 Cal.App.2d 550
Joseph L. KROISS, Plaintiff and Appellant,
v.
Marshall BUTLER et al., Defendants and Respondents.
Civ. 20353.
District Court of Appeal, Second District, Division 1, California.
Dec. 15, 1954.

Page 874

[129 Cal.App.2d 551] Morton J. Salsberg, Reseda, for appellant.

Murchison & Cumming, Los Angeles, for respondent Butler.

DRAPEAU, Justice.

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.

Page 875

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 [129 Cal.App.2d 552] 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.

[129 Cal.App.2d 553] 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:

'The party intending to move for a new trial must, either (1) before the entry of judgment and, where a motion for judgment notwithstanding the verdict is pending, then within five (5) days after the making of said motion, or (2) within ten (10) days after receiving written notice of the entry of the judgment, file with the clerk and serve upon the adverse party a notice of his intention to move for a new trial, designating the grounds upon which the motion will be made * * *. The time

Page 876

above specified shall not be extended by order or stipulation.'

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:

'The amendment of section 659 requires little comment. Its obvious purpose is to speed up the making of the motion for a new trial when made before the entry of judgment, inasmuch as, when a motion n. o. v. is made, section 664, Code of Civil Procedure, automatically stays entry of judgment until the court has ruled on the motion.' (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...

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11 practice notes
  • Gillespie v. Rawlings
    • United States
    • United States State Supreme Court (California)
    • November 12, 1957
    ...in language between the Whitmore and Harris cases, on the one hand, and the Clifford case, on the other); Kroiss v. Butler (1954), 129 Cal.App.2d 550, 555-556, 277 P.2d 873; Ray v. Hanisch (1957), 147 Cal.App.2d 742, 748(10), 306 P.2d 30.) The cases which use the phrase 'a motivating influe......
  • Johnson v. Kolovos
    • United States
    • Supreme Court of Oregon
    • October 12, 1960
    ...v. Harfmann, 113 Cal.App.2d 615, 616-617, 248 P.2d 501; Brandis v. Goldanski, 117 Cal.App.2d 42, 48, 255 P.2d 36; Kroiss v. Butler, 129 Cal.App.2d 550, 555-556, 277 P.2d 873; Ray v. Hanisch, 147 Cal.App.2d 742, 748, 306 P.2d 30; Clapp v. Hester, 169 Cal.App.2d 558, 337 P.2d In Brandis v. Go......
  • Martinez v. Southern Pac. Co.
    • United States
    • United States State Supreme Court (California)
    • October 14, 1955
    ...than the exchange of social amenities or reciprocal hospitality. McCann v. Hoffman, 9 Cal.2d 279, 286, 70 P.2d 909; Kroiss v. Butler, 129 Cal.App.2d 550, 555, 277 P.2d 873. On the other hand, the benefit need not be money or its equivalent. Malloy v. Fong, 37 Cal.2d 356, 377, 232 P.2d 241; ......
  • Duff v. Schaefer Ambulance Service
    • United States
    • California Court of Appeals
    • May 2, 1955
    ...is not involved, the occupant of the car has the burden of proving that he was a passenger rather than a guest. Kroiss v. Butler, 129 Cal.App.2d 550, 277 P.2d 873; Gosselin v. Hawkins, The law relating to the question of whether at the time of the accident Arywitz was acting in the service ......
  • Request a trial to view additional results
11 cases
  • Gillespie v. Rawlings
    • United States
    • United States State Supreme Court (California)
    • November 12, 1957
    ...in language between the Whitmore and Harris cases, on the one hand, and the Clifford case, on the other); Kroiss v. Butler (1954), 129 Cal.App.2d 550, 555-556, 277 P.2d 873; Ray v. Hanisch (1957), 147 Cal.App.2d 742, 748(10), 306 P.2d 30.) The cases which use the phrase 'a motivating influe......
  • Johnson v. Kolovos
    • United States
    • Supreme Court of Oregon
    • October 12, 1960
    ...v. Harfmann, 113 Cal.App.2d 615, 616-617, 248 P.2d 501; Brandis v. Goldanski, 117 Cal.App.2d 42, 48, 255 P.2d 36; Kroiss v. Butler, 129 Cal.App.2d 550, 555-556, 277 P.2d 873; Ray v. Hanisch, 147 Cal.App.2d 742, 748, 306 P.2d 30; Clapp v. Hester, 169 Cal.App.2d 558, 337 P.2d In Brandis v. Go......
  • Martinez v. Southern Pac. Co.
    • United States
    • United States State Supreme Court (California)
    • October 14, 1955
    ...than the exchange of social amenities or reciprocal hospitality. McCann v. Hoffman, 9 Cal.2d 279, 286, 70 P.2d 909; Kroiss v. Butler, 129 Cal.App.2d 550, 555, 277 P.2d 873. On the other hand, the benefit need not be money or its equivalent. Malloy v. Fong, 37 Cal.2d 356, 377, 232 P.2d 241; ......
  • Duff v. Schaefer Ambulance Service
    • United States
    • California Court of Appeals
    • May 2, 1955
    ...is not involved, the occupant of the car has the burden of proving that he was a passenger rather than a guest. Kroiss v. Butler, 129 Cal.App.2d 550, 277 P.2d 873; Gosselin v. Hawkins, The law relating to the question of whether at the time of the accident Arywitz was acting in the service ......
  • Request a trial to view additional results

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