Schultz v. Mathias

• Decision Date: 27 January 1970
• Citation: Schultz v. Mathias, 3 Cal.App.3d 904, 83 Cal.Rptr. 888 (Cal. App. 1970)
• Court: California Court of Appeals
• Parties: Fritz W. SCHULTZ et al., Plaintiffs and Respondents, v. Glenn J. MATHIAS et al., Defendants and Appellants. Civ. 9421.

Page 888

83 Cal.Rptr. 888

3 Cal.App.3d 904

Fritz W. SCHULTZ et al., Plaintiffs and Respondents, v. Glenn J. MATHIAS et al., Defendants and Appellants.

Civ. 9421.

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

Jan. 27, 1970.

Hearing Denied March 25, 1970.

Gerald O. Egan and Michael R. Quinn, San Bernardino, for defendants and appellants.

Abrams & Fox and Martin L. Abrams, El Monte, for plaintiffs and respondents.

OPINION

TAMURA, Associate Justice.

Plaintiffs' 21-year old son was killed in a head-on automobile collision between a Porsche in which he was a passenger and a Chevrolet driven by defendant Glenn J. Mathias. ¹. Plaintiffs brought the present action for the wrongful death of their son. Following a verdict and judgment for defendants, plaintiffs moved for a new trial on several grounds, including insufficiency of the evidence to support the verdict and newly discovered evidence. The motion was granted on both grounds. Defendants appeal from the order granting new trial.

The accident occurred near midnight on Highway 71, a two-lane highway running southerly from Pomona to Corona, at a point approximately 1/4 miles south of its intersection with Merrill Avenue. The speed limit on Highway 71 where the accident occurred was 65 miles per hour; the highway was unlighted and the surrounding area was described as open country. Each lane of the highway was 12 feet wide with an 8 foot paved shoulder.

Defendant, accompanied by his fiancee, was southbound on Highway 71 at a speed of from 55 to 60 miles per hour. Highway 71 has a gentle curve to the east south of the Merrill Avenue intersection. Just before he reached the intersection, defendant lowered his headlights. He first observed headlights of the northbound Porsche when it was 600 to 800 feet away. When the cars were 350 or 400 feet apart, he saw that the Porsche was entirely in the southbound lane. Defendant veered to his left and applied his brakes. Just before the collision the Porsche veered to its right. Some 3 or 4 seconds elapsed between the time defendant first saw the Porsche in his lane and the impact. There were no other vehicles in the immediate vicinity.

The occupants of the Porsche died almost instantly. Defendant suffered a cut over his eye but was otherwise uninjured. His financee, who was asleep on the front seat just prior to the collision, was rendered unconscious by the impact. There were no eyewitnesses to the accident.

A highway patrol officer arrived on the scene at approximately 12:30. According to the officer: 'Mr. Mathias stated that he was southbound on Highway 71 at approximately 60 miles per hour. He saw headlights coming at him, on his lane, and he applied the brakes and swerved to the center of the roadway to avoid colliding with the oncoming headlights.' The officer fixed the point of impact to be 3 feet west of the center line. He testified that skidmarks left by both vehicles all appeared to be in the southbound lane.

Plaintiffs' expert reconstructed the accident from the physical facts and made the following determinations: The Chevrolet left 14 feet of skidmarks commencing at a point when the vehicle's right front wheel would have been 3 feet west of the center line; the Porsche left 45 feet of skidmarks commencing at a point when the vehicle's right front wheel would have been 3 feet west of the center line. At the point of impact the right front wheel of the Chevrolet was 9 inches west of the center line and the right front wheel of the Porsche was 9 inches east of the center line. The expert testified that northbound there was a gentle curve in the highway to the right and that a northbound vehicle failing to negotiate the curve would have been where the Porsche commenced its skids. In his opinion the speed of the Porsche was at least 60 miles per hour. He found no mechanical defects in either vehicle.

Defendants contend that the order granting new trial should be reversed because (1) the showing made in support of the motion on the ground of newly discovered evidence was insufficient as a matter of law, and (2) the court abused its discretion in granting the motion for insufficiency of the evidence. We agree with those contentions.

I

The ground of newly discovered evidence was based upon a declaration by plaintiffs' attorney reciting the following facts: On July 20, 1965, plaintiffs received a letter from a Mr. Andrus in which Andrus stated he and his wife arrived on the scene of the accident at 12:20; they did not witness the accident; the occupants of the Porsche died before the ambulance arrived; the driver of the Chevrolet stated, '(H)e didn't know what had happened but thought the other car swerved in front on him, although he couldn't say for sure.' Plaintiffs' attorney ascertained that Andrus lived at an address in Pomona. On February 2, 1968, he attempted to have Andrus served with a subpoena for attendance in court on February 5; on February 5 he was informed that Andrus had moved and could not be located so he caused his investigator to attempt to locate Andrus; on February 7 at 3:00 p.m. the investigator reported that Andrus had been located in Los Angeles, but by that time the case had gone to the jury.

One of the statutory grounds for a new trial is: 'Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.' (Code Civ.Proc., § 657, subd. 4.) The essential elements which must be established are (1) that the evidence is newly discovered; (2) that reasonable diligence has been exercised in its discovery and production; and (3) that the evidence is material to the movant's case. While the granting of a new trial on the ground of newly discovered evidence is ordinarily a matter which is committed to the sound discretion of the trial court, where the evidence adduced in support of the motion is lacking in essential particulars, there is no basis for the exercise of discretion. (Slemons v. Paterson, 14 Cal.2d 612, 615--616, 96 P.2d 125; Bostard v. Bostard, 258 Cal.App.2d 793, 799--800, 66 Cal.Rptr. 348; Lubeck v. Lopes, 254 Cal.App.2d 63, 67, 62 Cal.Rptr. 36; De Felice v. Tabor, 149 Cal.App.2d 273, 275--276, 308 P.2d 377.)

In the present case the declaration was fatally deficient in material respects. (1) The evidence was not newly discovered; plaintiffs had the letter from Andrus more than 2 1/2 years before trial. (2) There was no showing of due diligence in the production of the evidence. It does not appear when the attorney ascertained Andrus' address, whether he ever contacted Andrus, or whether he ever attempted to arrange for Andrus' presence in court other than by the attempted service of the subpoena. (3) The evidence was not shown to be material to the movants' case. The newly discovered evidence must be material in the sense that it is likely to produce a different result. (Waer v. Waer, 189 Cal. 178, 180--181, 207 P. 891; Carpenter v. Kilgour, 236 Cal.App.2d 651, 658, 46 Cal.Rptr. 115); evidence which is merely cumulative or which simply tends to impeach or discredit a witness is insufficient. (Waer v. Waer, Supra, 189 Cal. p. 181, 207 P. 891; Lubeck v. Lopes, Supra, 254 Cal.App.2d p. 68, 62 Cal.Rptr. 36.) The statement defendant allegedly made to Andrus was substantially the same as the statement he made to the highway patrol officer and, hence, would have been cumulative. At most Andrus' testimony might have tended to impeach defendant's testimony.

Nor would the declaration have supported the order had the motion been made on the ground of 'Accident or surprise, which ordinary prudence could not have guarded against.' (Code Civ.Proc., 657, subd. 3.) Apart from the fact there was no showing that plaintiffs' counsel was justified in assuming that Andrus still resided in Pomona, the record discloses that after plaintiffs' counsel was apprised of the fact that Andrus had moved, he permitted the trial to proceed to conclusion without seeking a continuance or any other relief. On the showing made it would have been an abuse of discretion to have granted a new trial on the ground of accident or surprise. (Kauffman v. De Mutiis, 31 Cal.2d 429, 433--434, 189 P.2d 271.)

II

The order granting new trial was also based on insufficiency of the evidence to justify the verdict. The order recited that '* * * it is the opinion of this court that defendant Glenn J. Mathias, who was operating the 1959 Chevrolet automobile * * *, was guilty of negligence in the operation of his vehicle, which negligence proximately contributed in causing the death of the deceased.' ²

In reviewing an order granting a motion for new trial on the ground of insufficiency of the evidence, the evidence must be viewed in the light most favorable to the moving party. (McFarland v. Voorheis-Trindle Co., 52 Cal.2d 698, 707, 343 P.2d 923; Shoemaker v. California, 202 Cal.App.2d 379, 381, 20 Cal.Rptr. 812.) All presumptions are in favor of the order and a reviewing court will not interfere unless a clear abuse of discretion is shown. (Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 358, 170 P.2d 465.) 'It is only where it can be said as a matter of law that there is no substantial evidence to support a different judgment that an appellate court will reverse an order granting a new trial on insufficiency.' (Quintal v. Laurel Grove Hospital, 62 Cal.2d 154, 168, 41 Cal.Rptr. 577, 586, 397 P.2d 161, 170; Yarrow v. California, 53 Cal.2d 427, 434, 2 Cal.Rptr. 137, 348 P.2d 687; McFarland v. Voorheis-Trindle Co., Supra, 52 Cal.2d 698, 707, 343 P.2d 923; Ballard v. Pacific Greyhound Lines, Supra, 28 Cal.2d 357, 359, 170 P.2d 465; Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 307, 163 P.2d 689; Martinez v. Harris, 273 A.C.A. 417, 430, 78 Cal.Rptr. 325.)

Section 657 of the Code of Civil Procedure provides in relevant part: 'A new trial shall not be granted upon the ground of insufficiency of the evidence...