People, by and through Dept. of Public Works v. McCullough

• Citation: 223 P.2d 37,100 Cal.App.2d 101
• Court: California Court of Appeals
• Decision Date: 23 October 1950
• Parties: PEOPLE, by and through DEPARTMENT OF PUBLIC WORKS v. McCULLOUGH et al. Civ. 4211.

Page 37

223 P.2d 37

100 Cal.App.2d 101

PEOPLE, by and through DEPARTMENT OF PUBLIC WORKS v. McCULLOUGH et al.

Civ. 4211.

District Court of Appeal, Fourth District, California.

Oct. 23, 1950.

Garfield & Garfield, Wade Garfield, Fenton Garfield, San Diego, for appellant and cross-respondent.

Robert E. Reed, Sacramento, George C. Hadley, Hodge L. Dolle, Thomas G. Baggot, Los Angeles, Warren P. Marsden, Sacramento, John N. McLaurin, R. B. Pegram, Los Angeles, for respondent and cross-appellant.

GRIFFIN, Justice.

The People, as plaintiff, respondent and cross-appellant (hereinafter referred to as plaintiff), acting through the Department of Public Works, brought this action in eminent domain for the condemnation of a right-of-way in fee for freeway purposes against certain named defendants including William Ellis Lady, defendant, appellant and cross-respondent hereinafter referred to as defendant), as the owner of two separate parcels of land described in the complaint as parcels numbered 14 and 31, containing 40 acres each. The proposed freeway is routed over brush-covered and generally hilly terrain and would consume 5.1 acres from parcel 14 and 2.63 acres from parcel 31 at a point near Alpine.

A jury returned a verdict awarding defendant $2800 for parcel 14 plus $100 severance damages, less $810 special benefits deducted, and $3000 for parcel 31, without severance damages and less $1110 special benefits deducted. Findings of fact incorporated the verdict, and judgment was thereupon entered. Plaintiff moved for a new trial on the sole issue of the value fixed on parcels 14 and 31, upon the grounds: (1) irregularity in the proceedings; (2) accident and surprise; and (3) insufficiency of the evidence. Defendant moved for a new trial on the issue of severance damages and special benefits to defendant's remaining property adjoining these parcels. These motions came on for hearing at the same time. Defendant then, for the first time, called the trial court's attention to the fact that he theretofore had filed with the clerk a purported 'statement objecting to the hearing of the motion' before Judge Hewicker, due to his claimed disqualification. The motion was denied by that judge. This matter will be later discussed.

After argument on the motions the court made its order denying defendant's motion for a new trial and granting plaintiff's motion, unless within ten days from the order defendant consented to the reduction of the award as to parcel 14 to the sum of $375, and as to parcel 31 to the sum of $200. Such a consent was not accordingly filed and a new trial was granted on the sole issue of the fair market value of parcels 14 and 31. Defendant appealed from this order as well as the order denying defendant a new trial, and from the portion of the judgment covering the issue of 'severance damages and special benefits'.

Since no appeal lies from an order denying a new trial, the attempted appeal therefrom must be dismissed. Tucker v. Beneke, 180 Cal. 588, 182 P. 299.

Plaintiff cross-appealed under the provisions of Rule 3, Rules on Appeal, from that portion of the judgment awarding defendant the total sum of $2800 for the taking of parcel 14 and the total sum of $3000 for the taking of parcel 31. It is conceded by plaintiff that its appeal should only be considered if the order granting a limited new trial is reversed.

In defendant's opening brief only two questions are presented, namely, did the trial court err in granting plaintiff's motion for a new trial, and did the trial judge have jurisdiction to try the question of his own disqualification?

His first claim is that this court has no jurisdiction to consider the question of the insufficiency of the evidence in connection with the motion for a new trial because the order granting a new trial on that ground was not in writing and filed with the clerk, as required by sec. 657 of the Code of Civil Procedure, citing such cases as Hawkinson v. Oesdean, 61 Cal.App.2d 712, 143 P.2d 967; and Thomas v. Driscoll, 42 Cal.App.2d 23, 108 P.2d 43. The cited cases are factually dissimilar. Here the record shows that the motion for a new trial was made on the grounds stated. The minute entry shows that plaintiff was granted a new trial 'upon the sole issue of the value of parcels u4 and 31', unless, within ten days, 'defendant accepts' the amounts above stated. It is true that the order granting the new trial does not specifically state that it was granted on the ground of insufficiency of the evidence. However, to grant a new trial 'upon the sole issue of the value of parcels 14 and 31, due to excessive damages, would of necessity be granting a new trial by reason of the fact that the evidence was considered by the court as insufficient to justify the verdict. Griffey v. Pacific Electric Ry. Co., 58 Cal.App. 509, 209 P. 45. That the parties and the court fully understood the nature of the order is reflected in the trial judge's remarks in granting it. He said: '* * * none of the testimony, even on behalf of the defendant, placed the value of the property as high as these figures (in the verdict) would indicate on the property taken * * * so I will grant the * * * motion for a new trial as to * * * valuation * * * unless the defendant accepts * * *', etc. '* * * and I will fix the time within ten days after the signing of the order granting a new trial on that ground * * *.' Likewise, the order was conditional and clearly indicated that it was granted because the verdict was believed by the trial court to have been excessive.

The cases construing sec. 657 of the Code of Civil Procedure indicate that it is unnecessary to use the exact words 'insufficiency of the evidence to sustain the verdict' and that whenever the order granting a new trial uses such language as can reasonably be construed as meaning that the evidence was insufficient to support of verdict, then the mandate of that section has been satisfied. Secreto v. Carlander, 35 Cal.App.2d 361, 95 P.2d 476; Lucerne Country Club v. Beal, 21 Cal.App.2d 121, 68 P.2d 408.

In Piru Citrus Ass'n v. Williams, 95 Cal.App.2d 911, 214 P.2d 426, the court held that when the order granting a new trial goes beyond a mere general order and uses any language that reasonably can be construed as including insufficiency of the evidence, the language will be interpreted as including that ground. The order was sufficient. Gossman v. Gossman, 52 Cal.App.2d 184, 126 P.2d 178; Cox v. Tyrone Power Enterprises, 49 Cal.App.2d 383, 121 P.2d 829.

From an examination of the record it appears from the testimony of the witnesses both for defendant and plaintiff, that the highest value placed on parcel 14 was $1500 and the jury's verdict was for $2800. The highest value placed on parcel 31 was $1326 and the jury's verdict was $3000. The verdict, therefore, in this respect, appeared to be without sufficient evidentiary support, and would authorize the granting of a new trial on that ground.

Defendant argues that since the jury viewed the property, the knowledge thus acquired may, in and of itself, amply justify the finding, citing Anderson v. State of California, 61 Cal.App.2d 140, 145, 142 P.2d 88; and Brugger v. Lee Yim, 12 Cal.App.2d 38, 50, 55 P.2d 564. In the Anderson case there is a statement to the effect that what the jury saw was evidence and that there was a presumption that evidence not included in the record supported the verdict. However, there was testimony in the record in that case of damage greatly in excess of that found by the jury. Accordingly, the Anderson case is not authority for defendant's argument. The Brugger case did not involve the element of damage but what the trial judge saw on his visit to the premises and thereafter incorporated such facts in his findings. These findings were also supported by maps and diagrams in evidence. The true rule appears to be that a jury cannot disregard the evidence as to value and render a verdict in excess of that shown by the testimony of the witnesses. The view of the premises cannot be the sole basis for an award. Value must be arrived at from the opinion of well-informed persons based upon the purposes for which the property is suitable. While the view of the premises is evidence in a condemnation proceeding, it is merely corroborative of the quantiative oral testimony. People v. Al. G. Smith Company, Ltd., 86 Cal.App.2d 308, 194 P.2d 750, citing San Diego Land & Town Company v. Neale, 78 Cal. 63, 20 P. 372; 10 Cal.Jur. sec. 68, p. 358; and 10 Cal.Jur. sec. 70, p. 362. See, also, Fendley v. City of Anaheim, 110 Cal.App. 731, 736, 294 P. 769.

Trial judges should be commended, rather than criticized in granting new trials where the judgment awarded by a jury is unreasonable in amount. It is well settled that the granting of a motion for new trial rests so completely within the discretion of the trial judge that an appellate court will not interfere with his action unless a manifest and unmistakable abuse of discretion clearly appears. Koyer v. McComber, 12 Cal.2d 175, 82 P.2d 941; Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, 153 P.2d 338. No abuse of discretion having been shown, the order granting a new trial upon the sole issue of the value of parcels 14 and 31 should be affirmed.

Defendant makes no point in his opening brief as to the sufficiency of the evidence to support the portion of the judgment from which he has appealed regarding severance damages and special benefits. He does not point out wherein the evidence is insufficient. A court of appeal may properly consider the point as waived when it is not presented in the opening brief. Tuller v. Arnold, 98 Cal. 522, 33 P. 445; Souza v. Joseph, 22 Cal.App. 179, 133 P. 981; Haley v. Traeger, 92 Cal.App. 360, 268 P. 459. However, from an examination of the record, there appears to be sufficient evidence to support the verdict of the jury in this respect.

The question of the jurisdiction of the trial...