Lovett v. Dintzer

• Decision Date: 01 March 1955
• Citation: 280 P.2d 58,131 Cal.App.2d 165
• Court: California Court of Appeals Court of Appeals
• Parties: Richard A. LOVETT, Plainiff and Appellant, v. Jack DINTZER and Jack Dintzer, doing business under the name and style of the Senate Hotel, Defendant and Respondent. Civ. 20513.

Page 58

280 P.2d 58

131 Cal.App.2d 165

Richard A. LOVETT, Plainiff and Appellant, v. Jack DINTZER and Jack Dintzer, doing business under the name and style of the Senate Hotel, Defendant and Respondent.

Civ. 20513.

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

March 1, 1955.

Paul E. Gervais, Burbank, and Toxey H. Smith, Los Angeles, for appellant.

Moss, Lyon & Dunn, Gerold C. Dunn, Henry F. Walker, Los Angeles, for respondent.

McCOMB, Justice.

From an order granting a motion for a new trial in an action to recover damages for personal injuries resulting from the alleged negligence of defendant, plaintiff appeals.

Facts: Defendant was the owner of a building known as the Senate Hotel, in which one of the apartments was leased to plaintiff. On February 7, 1953, having, occasion to leave the hotel, plaintiff went out the rear exit and as he opened the screen door onto the porch he heard a noise and looked up and saw bricks falling. He lost his balance and tried to move out of the way but fell over a railing to the ground fifteen feet below and received personal injuries. The jury returned a verdict in favor of plaintiff in the sum of $14,000.

Defendant filed a notice of intention to move for a new trial upon the ground, among others, that the jury had awarded excessive damages under the influence of passion and prejudice. The minute order of the trial court granting the motion for new trial read: 'Motion for a New Trial is granted upon the following grounds, to wit: Errors of law in instructing the jury and in refusing to give instructions requested by defendant.'

The sole question necessary for us to determine is whether the trial court erred in granting the motion for a new trial.

This question must be answered in the negative and is governed by these rules:

(1) An order granting a motion for a new trial will be affirmed if it can be sustained upon any ground stated in the notice of intention to move for a new trial. (Parks v. Dexter, 100 Cal.App.2d 521, 524, 224 P.2d 121.)

(2) When a motion for a new trial is granted on errors of law, even if the order specifies the ground upon which it is granted, an appellate court is not limited to a consideration of the ground stated in the order but will consider any ground stated in the notice of intention to move for a new trial. (Scott v. Renz, 67 Cal.App.2d 428, 432, 154 P.2d 738; Gray v. Robinson, 3 Cal.App.2d 177, 180, 91 P.2d 194; Kauffman v. Maier, 94 Cal. 269, 276, 29 P. 481, 18 L.R.A. 124.)

(3) Where a new trial is granted on the ground of excessive damages it need not be so specified in the order granting the motion. (Gardner v. Marshall; American Brake Shoe & Foundry Co., 24 Cal.2d 686, 690, et seq., 151 P.2d 122.)

Applying the foregoing rules to the present case it appears that the trial court's order is supported upon the ground that the jury's verdict was excessive in awarding plaintiff $14,000 damages.

Plaintiff testified by a deposition taken in Massachusetts that he had no recollection of being struck by any bricks; that he fell mainly on his back and left elbow; that he received some bruises and that they were not serious; that there was no injury to his back and that the injury was confined primarily to his left elbow. He further testified that his left arm had previously been injured in 1948, when he received a fracture of both bones of his left forearm and that thereafter he was inducted into military service and received a bullet would in the left forearm. He testified that he was stunned by the fall; that he picked himself up and did not realize his arm was broken until he was up off the ground; that he walked into the hotel,...