Legg v. Mutual Benefit H. & A. of Omaha

• Decision Date: 10 November 1955
• Citation: 136 Cal.App.2d 887,289 P.2d 550
• Court: California Court of Appeals Court of Appeals
• Parties: Ethel Leona LEGG, Plaintiff, Respondent and Cross-Appellant, v. MUTUAL BENEFIT HEALTH AND ACCIDENT OF OMAHA, Defendant, Appellant and Cross-Respondent, Leona Ethel LEGG, Plaintiff and Appellant, v. MUTUAL BENEFIT HEALTH AND ACCIDENT OF OMAHA, an association, and United Benefit Life Insurance of Omaha, a company, Defendants and Respondents. Civ. 20687, 20952.

Page 550

289 P.2d 550

136 Cal.App.2d 887

Ethel Leona LEGG, Plaintiff, Respondent and Cross-Appellant, v. MUTUAL BENEFIT HEALTH AND ACCIDENT OF OMAHA, Defendant, Appellant and Cross-Respondent, Leona Ethel LEGG, Plaintiff and Appellant, v. MUTUAL BENEFIT HEALTH AND ACCIDENT OF OMAHA, an association, and United Benefit Life Insurance of Omaha, a company, Defendants and Respondents.

Civ. 20687, 20952.

District Court of Appeal, Second District, Division 2, California.

Nov. 10, 1955.

Rehearing Denied Nov. 30, 1955.

See 290 P.2d 87.

Hearing Denied Dec. 28, 1955.

J. Edward Haley, Los Angeles, for Mutual Benefit, et al.

Leona Ethel Legg in pro. per.

FOX, Justice.

Defendant appealed from an order granting a motion for a new trial. Plaintiff thereupon appealed from the judgment. (There is another appeal by plaintiff which will be discussed later.)

Plaintiff brought this action to recover monthly disability benefits under a health and accident policy issued to her by defendant on November 7, 1944. Plaintiff alleged that on February 6, 1947, while the policy was in force, she fell in attempting to board a streetcar, suffering injuries that resulted in her total disability which had continued for such period that she was entitled to the total monthly disability indemnity provided by the policy. The company admitted the issuance of the policy but denied plaintiff suffered disability as alleged by her, and, as an affirmative defense, alleged the policy lapsed on December 1, 1946, by reason of nonpayment of premium.

The jury returned a verdict in favor of plaintiff for $100. In response to special interrogatories, the jury found that the policy was in force on February 6, 1947, and that plaintiff was wholly and continuously disabled by reason of the accident from February 6 to February 28, 1947.

Plaintiff made a motion for a new trial upon a number of the grounds specified in section 657, Code of Civil Procedure, among them being the insufficiency of the evidence. The court granted the motion, the minute order reading as follows:

'Plaintiff's motion for a new trial heretofore submitted on February 10, 1954 is granted as to all issues * * *'

There is substantial evidence that plaintiff's injuries were serious and disabled her for a much longer period than the approximate three weeks fixed by the jury. Defendant concedes the evidence is conflicting.

Although section 657, Code of Civil Procedure, which states the grounds upon which a motion for a new trial may be granted, does not expressly include the ground of inadequacy of damages, the cases have established that 'A new trial may be granted upon the ground of insufficiency of the evidence for the reason that the damages awarded are inadequate.' Harper v. Superior Air Parts, Inc., 124 Cal.App.2d 91, 92, 268 P.2d 115, 116; Franklin v. Betten-court, 16 Cal.App.2d 511, 514, 60 P.2d 1017. ^*

Defendant, however, points out that the order granting the new trial does not specifically mention insufficiency of the evidence to sustain the verdict as a ground upon which the new trial was granted; therefore, he argues, it must be conclusively presumed that the order was not based upon that ground, and as there was no other valid ground upon which it could be based, it must be reversed.

It is well settled that when the order provides simply that a new trial is granted, such order is a general one and does not include insufficiency of the evidence. Tasker v. Cochrane, 94 Cal.App. 361, 271 P. 503. 'The statute,' however, 'does not require that the order specify insufficiency of the evidence to sustain the verdict in any particular words or language. If the language used is susceptible of being interpreted as tantamount to granting a new trial on account of the insufficiency of the evidence to sustain the verdict, or if it may be inferred from the language used that such was the ground upon which the order was made, it is uniformly held to have been based upon that ground. Where the nature of the order itself necessarily implies that the trial court deemed it necessary to reexamine the facts, a statement in the order that the evidence is insufficient is not essential. When the order granting the motion goes beyond a mere general order (a new trial is granted) and uses any language that reasonably can be construed as including insufficiency of the evidence, the language will be interpreted as including that ground.' Piru Citrus Ass'n v. Williams, 95 Cal.App.2d 911, 914-915, 214 P.2d 426, 428.

The precise question here presented was passed upon in Bayley v. Souza, 42 Cal.App.2d 166, 170, 108 P.2d 725, 727. Hearing denied. The order in that case stated that the motion for a new trial was granted "on all issues." In construing that language, the court said: 'These cases demonstrate that the order here involved, granting the new trial 'on all issues', is susceptible of the reasonable interpretation that the trial court intended by that language to include insufficiency of the evidence. What else can the expression 'on all issues' mean? It must mean either all issues presented by the pleadings, which would include the issues of negligence of appellant and contributory negligence of respondent, and the sufficiency of the evidence to support the implied finding of the jury on these issues, or it must mean all issues presented by the motion for a new trial, one of which was the sufficiency of the evidence. In either event, under the cases cited, such order is not a general order, but must be interpreted as including a reference to insufficiency of the evidence within the meaning of sec. 657 of the Code of Civil Procedure.' In Lucerne Country Club v. Beal, 21 Cal.App.2d 121, 125, 68 P.2d 408, 410, a new trial was granted "as to all issues made by the said cross-complaint of the said R. J. Palmer and the answer...