Morgan v. Southern Pac. Co.
| Decision Date | 26 August 1959 |
| Citation | 343 P.2d 330,173 Cal.App.2d 282 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Gall D. MORGAN, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent. Civ. 18075. |
William T. Belcher, Jr., Oakland, for appellant.
R. Mitchell S. Boyd, Richard S. Hawkinson, Dunne, Dunne & Phelps, San Francisco, for respondent.
In this action, brought under the sanction of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., the jury awarded plaintiff damages in the sum of $1,200.
After submission of plaintiff's motion for new trial the court, on October 3, 1957, entered a minute order in these words: 'Defendant Southern Pacific Co. having agreed to pay the additional sum of $800 plus the verdict of $1200, the Motion for New Trial is denied.' On October 7, the following minute order was made: '* * * the order of Court denying motion for new trial on condition defendant Southern Pacific Company pay * * * plaintiff the sum of $2000 is amended nunc pro tunc as of October 3rd, 1957, to add the following: that in addition to pay the sum of $2000, defendant Southern Pacific Company is taxes with costs.' On October 10, the order of October 3 was 'amended to add to the judgment previously entered in the total sum of $2000 this phrase, 'that Defendant Southern Pacific can be further taxed for costs.'' 1
Plaintiff has appealed from the judgment and claims that the trial court erroneously sought without plaintiff's consent to impose additur as a condition for denying plaintiff's motion for a new trial.
We might accommodate him by reducing the judgment to $1,200, the amount of the jury award, and then affirm it. But that is not what he desires. He wants a new trial, a jury trial, and seeks a reversal of the judgment in order to get it.
He invokes the landmark case of Dorsey v. Barba, 38 Cal.2d 350, 240 P.2d 604. In that case the trial court denied plaintiff's motion for new trial on condition that the defendant consent to an increase of award in an amount fixed by the court (at page 355 of 38 Cal.2d, at page 6061 of 240 P.2d). The trial court expressly decided that the damages were inadequate and ordered a new trial limited to the issue of damages alone unless defendant filed his consent to the indicated increase. Upon the filing of such consent, the increased judgment was entered. It recited all of the pertinent facts and specifically stated that prior to making the conditional order the court had "found that the evidence was insufficient to support each of the verdicts hereinabove set forth in that the damages awarded each of said respective plaintiffs were inadequate." Cal.App., 226 P.2d 677, at page 682. The record showed that the jury awards barely covered the amount of the plaintiffs' special damages, leaving nothing for general damages. The finding that the jury award lacked support in the evidence was, therefore, correct and a new trial should have been granted. The attempt to thwart plaintiffs' right to a new trial before a jury (by increasing the judgment without plaintiffs' consent) was prejudicially erroneous. Accordingly, the judgment had to be reversed.
How are we in the instant case going to spell any such set of facts out of the record before us as a basis for reversing the judgment in this case? Plaintiff-appellant has furnished a clerk's transcript only. He has provided us neither with a reporter's transcript nor with an agreed or settled statement. All that the clerk's transcript shows, pertinent to this inquiry, is the text of the orders above quoted and plaintiff's notice of motion for new trial; nothing by which to test the accuracy of his asserted right to a new trial. In the absence of such a showing, plaintiff has failed to meet the burden, as appellant, of demonstrating that the judgment rests upon prejudicially erroneous action of the trial court. An affirmance is clearly indicated.
We note in passing that plaintiff is also faced with the problem of reading into the orders under review a finding that the verdict was inadequate and lacked support in the evidence. The code says that when a new trial is granted upon the ground of insufficiency of the evidence to sustain the verdict or decision 'the order shall so specify this in...
To continue reading
Request your trial