Opp v. Sykes
| Decision Date | 10 March 1961 |
| Citation | 11 Cal.Rptr. 770 |
| Parties | Kathleen OPP, Plaintiff and Respondent, v. Adeline Mae SYKES, Defendant and Appellant. Wilma H. TATUM, Plaintiff and Respondent, v. Adeline Mae SYKES, Defendant and Appellant. Civ. 18942, 18943. |
| Court | California Court of Appeals Court of Appeals |
Lacey, Holbrook & Meyenberg, Richard E. Holbrook, Salinas, for appellant.
Bardin, Cunningham & Panelli, Boccardo, Blum, Lull, Niland & Teerlink, by Edward J. Niland, San Jose, for respondents.
The clarification of the court's minutes to reflect the fact that their reference to the argument of counsel designated an argument upon the sole ground of the insufficiency of the evidence, based upon amended motions for new trials on that single ground, did not constitute a modification of the order granting new trials proscribed by section 657 of the Code of Civil Procedure. In these consolidated actions for personal injuries sustained by respondent driver and passenger (plaintiffs) in a rear-end collision the jury returned a verdict for appellant (defendant). Respondents each moved for a new trial upon the grounds of The bare content of the minutes as to the disposition of the motions, entered on May 11, 1959, read:
Thereafter, on December 11, 1959, respondents filed a notice of motion to correct and amend minutes nunc pro tunc, asserting that 'by reason of clerical error and omission the said minutes do not conform to the actual facts and do not speak the whole truth relating to the proceedings * * *.' When the matter came up for hearing on December 18, 1959, the judge stated that he would rely on his 'own recollection of the substance of the situation' and that he would not read the supporting affidavits; he recalled the situation The court then stated: 'Mr. Cunningham and Mr. Lacey were here and Mr. Cunningham did announce that he was abandoning all grounds other than that of insufficiency of the evidence.'
Accordingly, on December 22, 1959, the court filed an 'Order for Correction and Amendment of Minutes Nunc Pro Tunc.' The salient portion of the order reads that the minutes of May 11, 1959, 'be corrected and amended nunc pro tunc' by inserting in lieu of the third sentence of the minutes the following:
The question before us resolved into the validity of the correction of the minutes since the record shows both that an order granting a new trial for insufficiency of the evidence would not have constituted an abuse of discretion and that the order cannot be affirmed upon the ground that the verdict was against law.
A brief narration of the facts confirms the proposition above stated. In substance, appellant apparently ran her car into the rear of respondent Tatum's vehicle which had stopped for a left hand turn, and, after the accident, admitted fault. Respondent Tatum was about to turn into the intersection of Romie Lane and the entrance of a hospital in Salinas, California; appellant's Chevrolet car proceeded down the street following by about fifty feet respondent Tatum's Buick; appellant saw the signal light on the rear of the Buick flash to indicate a left hand turn, and coincidentally appellant remained about fifty feet behind respondents. Appellant knew the Buick was about to make a left hand turn; she saw the Buick blink its light; she 'imagined' the Buick to be proceeding at about fifteen to twenty miles per hour. Appellant originally testified that the Buick came to a stop, presumably to permit some oncoming cars to pass, but she did not recall what she did at this moment; she 'imagined' that she slowed down. She did not know how far her car was to the rear of the Buick when she applied her brakes. At the time of the impact the Buick's signal light continued blinking.
On re-direct examination appellant testified that she could not say whether or not the Buick stopped; she later testified that the Buick did not stop until after she hit it. She further testified that when the signal light came on the Buick was fifty feet from the intersection; her car was about fifty feet to the rear of the Buick; she did not put on her brakes when she was fifty feet behind the Buick.
Both respondents testified that before the Chevrolet struck the Buick that car had stopped in order to allow two oncoming cars to pass. Two independent witnesses corroborated this testmony. Nor did the Buick come to a sudden stop. Both respondents further testified that immediately after the accident appellant stated, 'Well, it's all my fault.'
Upon this record we cannot rule that the trial court abused its discretion in granting new trials. In the words of Hawk v. City of Newport Beach, 1956, 46 Cal.2d 213, 293 P.2d 48: '[I]t cannot be held that a trial court has abused its discretion where there is any evidence which would support a judgment in favor of the moving party.' 46 Cal.2d at page 219, 293 P.2d at page 51. To the same effect: Vanni v. Burns, 1960, 179 Cal.App.2d 58, 61, 3 Cal.Rptr. 487; Huntley v. County of Santa Clara, 1959, 168 Cal.App.2d 298, 300, 335 P.2d 722. Certainly there is evidence here which would support a judgment in favor of respondents. Indeed, appellant makes no argument to the contrary.
As we have stated, the record likewise sustains the converse proposition that the order for new trials cannot be affirmed upon the ground that the verdict was against law. As appellant has pointed out, the evidence is in conflict on three points: (1) whether respondent Tatum gave an arm or hand signal; (2) whether or not the brake lights on respondent Tatum's car came on; and (3) whether or not respondent Tatum's vehicle came to a stop before the collision. We therefore cannot conclude that the evidence in this case was insufficient in law to support the verdict and without conflict on any material point.
The determinative question, then, must be whether or not the trial court's order granting new trials may properly rest upon the ground of the insufficiency of the evidence. Section 657 of the Code of Civil Procedure provides that 'When a new trial is granted, on all or part of the issues, upon the ground of the insufficiency of the evidence to sustain the verdict or decision, the order shall so specify this in writing and shall be filed with the clerk within ten days after the motion is granted; otherwise, on appeal from such order it will be conclusively presumed that the order was not based upon that ground.'
While the statute plainly indicates that if the order omits the reference to the insufficiency of the evidence, that ground is precluded, and the cases so hold (Yarrow v. State of California, 1960, 53 Cal.2d 427, 2 Cal.Rptr. 137; Cook v. Bordi, 1960, 177 Cal.App.2d 112, 1 Cal.Rptr. 886; Bray v. Rosen, 1959, 167 Cal.App.2d 680, 335 P.2d 137; Roth v. Marston, 1952, 110 Cal.App.2d 249, 242 P.2d 375; Gursey v. Campus Camera Shop, Inc., 1950, 98 Cal.App.2d 257, 219 P.2d 884; Thomas v. Driscoll, 1940, 42 Cal.App.2d 23, 108 P.2d 43; Whitley v. Superior Court, 1941, 18 Cal.2d 75, 113 P.2d 449), the order may be read in the light of the argument and the motion. If the only ground alleged in the argument and motion is the insufficiency of the evidence, and the order merely grants the motion without specifying the ground, the order may be held to have been granted upon the ground of the insufficiency of the evidence. Ice-Kist Packing Co. v. J. F. Sloan Co., 1958, 157 Cal.App.2d 695, 697, 321 P.2d 840; Cox v. Tyrone Power Enterprises 1942, 49 Cal.App.2d 383, 399, 121 P.2d 829.
Even though multiple grounds may be presented in the motion, the courts will construe the order as based upon the single ground of insufficiency of the evidence if an examination of the facts so warrants. Thus in Kralyevich v. Magrini, 1959, 172 Cal.App.2d 784, 342 P.2d 903, plaintiff moved for a new trial on the issue of damages on the grounds of insufficiency of the evidence and that the verdict was against the law, but the order granting the motion read, "A new trial is hereby granted in the above entitled matter insofar as the question of damages only is concerned." 172 Cal.App.2d at page 787, 342 P.2d at page 904. This court determined that while two grounds were specified in the motion, only one, insufficiency of the evidence, could 'be reconcilable with a reexamination of the amount of the award * * *.' 172 Cal.App.2d at page 790, 342 P.2d at page 906. The court therefore interpreted the order as one based only on insufficiency of the evidence. Alluding to the 'liberal attitude on the part of the appellate courts' in this regard, the court says: 'The rule seems now to be well established that if the language used in the order is reasonably susceptible of being interpreted as an intent to grant a new trial on account of the insufficiency of the evidence to sustain the verdict, or if it may be fairly inferred from the language used that such was the ground upon which the order was made, it will be held that there has been a sufficient compliance with Code of Civil Procedure, section 657.' 172...
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