Van Ostrum v. State

• Decision Date: 25 January 1957
• Citation: 148 Cal.App.2d 1,306 P.2d 44
• Court: California Court of Appeals Court of Appeals
• Parties: Sonja VAN OSTRUM et al., Plaintiffs, Dale Velzy, Plaintiff and Appellant, v. STATE of California and Jack Cloyes Yates, Defendants and Respondents. Civ. 21877.

Page 44

306 P.2d 44

148 Cal.App.2d 1

Sonja VAN OSTRUM et al., Plaintiffs, Dale Velzy, Plaintiff and Appellant, v. STATE of California and Jack Cloyes Yates, Defendants and Respondents.

Civ. 21877.

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

Jan. 25, 1957.

Joseph Schecter and Toxey Hall Smith, Los Angeles, Robert G. Beverly, Los Angeles, of counsel, for appellant.

Parker, Stanbury, Reese & McGee, Los Angeles, James N. Kenealy, Jr., Los Angeles, of counsel, for respondents.

ASHBURN, Justice.

Dale Velzy, one of the plaintiffs herein, appeals from an order granting a new trial as to him. The action seeks recovery of damages caused by defendant's negligence. Liability was admitted at the trial and defendant offered no evidence. The jury rendered a verdict for $4,000 in Velzy's favor.

Defendant moved for a new trial upon two grounds, (1) insufficiency of the evidence to justify the verdict, and (2) excessive damages appearing to have been given under the influence of passion or prejudice. After argument the court on January 31, 1956 orally ruled: 'That motion is granted unless on or before February 20th, the plaintiff, Dale Velzy, files a remittance in this court reducing the amount of the judgment to $1500. In the event that he does not file such a remittance in this court, the motion for new trial is granted. If he does file such a remittance in this court, the motion for new trial is denied.' On the same day the clerk made a minute order as follows: 'Motion is argued, and as to plaintiff Dale Velzy only, said motion is granted unless plaintiff on or before Feb. 20, 1956 files a remittance with the Court reducing amount of judgment to $1500.00, in which event the motion will be deemed denied.' This order was entered on February 2, 1956. Plaintiff declined to make any remission of damages and appealed from the order on said February 2. In the judge's oral ruling and the clerk's minute order no specific reference is made to insufficiency of the evidence. However, on February 6, 1956, the court made and signed, and the clerk filed, a written order reading as follows: 'It is hereby ordered that defendants' motion for new trial herein is granted upon the ground of insufficiency of the evidence to support the verdict and judgment provided however that if the plaintiff Dale Velzy on or before February 20, 1956 files with the Court a consent in writing to a reduction of the judgment herein to the sum of $1500.00 the motion for a new trial is denied, otherwise it is granted upon the ground stated herein.'

Appellant's first claim is that the ruling cannot be sustained upon the ground of insufficiency of the evidence because the written order of February 6 'is void and ineffective' and hence under § 657, Code of Civil Procedure, ¹ 'it will be conclusively presumed that the order was not based upon that ground' of insufficiency of the evidence. One of the reasons assigned for invalidity of the order of February 6 is that it was made after plaintiff had perfected an appeal from the minute order. It is unnecessary to consider this problem, for the granting of a new trial is sustainable regardless of the answer to the question thus raised.

It is established law, since the decision in Sinz v. Owens, 33 Cal.2d 749, 760, 205 P.2d 3, 8 A.L.R.2d 757, that a specification of insufficiency of the evidence is not necessary to a review of the evidence where the new trial is granted on the ground of excessive damages. Plainly, that was the basis of the ruling here. To the same effect are Gardner v. Marshall (American Brake etc. Co.), 24 Cal.2d 686, 691, 151 P.2d 122; Lovett v. Dintzer, 131 Cal.App.2d 165, 166, 280 P.2d 58; Legg v. Mutual Benefit H. &amp A. of Omaha, 136 Cal.App.2d 887, 890, 289 P.2d 550, 290 P.2d 87.

Secondly, the grounds of the motion at bar were so limited that the language of the judge in his oral ruling, and that of the clerk's minute order, are plainly susceptible of construction that the motion was granted upon the ground of insufficiency of the evidence. The motion specified only insufficiency of the evidence and excessive damages as grounds for a new trial. The court, in passing upon the motion, is confined to the grounds specified in the notice, Dynes v. Bekins Van & Storage Co., 175 Cal. 72, 73, 165 P. 12; 20 Cal.Jor. § 127, p. 191; 4 Cal.Jur.2d § 539, p. 393. Hence, the order of February 2 could mean only one or both of the specified grounds, both of which are essentially insufficiency of the evidence. Sinz v. Owens, supra, 33 Cal.2d 749, 760, 205 P.2d 3. The governing rule is stated in Legg v. Mutual Benefit H. & A. of Omaha, supra, 136 Cal.App.2d 887, at page 891, 289 P.2d 550, at page 552, which quotes Piru Citrus Ass'n v. Williams, 95 Cal.App.2d 911, 914, 214 P.2d 426, as follows: "The statute,' however, 'does not require that the order specify insufficiency of the evidence to sustain the verdict in any particular words or language. If the language used is susceptible of being interpreted as tantamount to granting a new trial on account of the insufficiency of the evidence to sustain the verdict, or if it may be inferred from the language used that such was the ground upon which the order was made, it is uniformly held to have been based upon that ground. Where the nature of the order itself necessarily implies that the trial court deemed it necessary to reexamine the facts, a statement in the order that the evidence is insufficient is not essential."

Plaintiff's final contention is that the court abused its discretion in granting a new trial. The rules governing review of an order granting a new trial for insufficiency of the evidence are stated in Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 358, 170 P.2d 465, 467: '* * * The trial court in considering a motion for new trial is not bound by a conflict in the evidence, and has not abused its discretion when there is any evidence which would support a judgment in favor of the moving party. [Citations.] The only conflict may be the opposing inferences deducible from uncontradicted probative facts. In such case the trial court may draw inferences opposed to those accepted by the jury and may thus resolve the conflicting inferences in favor of the moving party, for 'It is only where it can be said as a matter of law that there is no substantial evidence to support a contrary judgment that an appellate court will reverse the order of the trial court.' [Citations.]'

Concerning an order granting the motion upon the ground of excessive damages, it is said in Strosk v. Howard Terminal Co., 129 Cal.App.2d 797, 802, 277 P.2d 828, 831: "Whatever may be the rule which should govern the trial judge, it is certain that when his action in granting a new trial on the ground of excessive damages, or requiring a reduction of the amount as the condition of denying one, comes to be reviewed on appeal, his order will not be reversed unless it plainly appears that he abused his discretion; and the cases teach that, when there is material conflict of evidence regarding the extent of...