Opinion
As Modified on Denial of Rehearing June 5, 1967.
For Opinion on Hearing, see 65 Cal.Rptr. 315, 436 P.2d 315. Price & Martin, by John S. Gilmore, Modesto, for appellants.
Kane & Canelo, by Robert C. Deabenderfer, Merced, for respondents.
OPINION
GARGANO, Associate Justice.
This action arises out of an automobile accident which occurred on July 14, 1964, on Highway 33 in Stanislaus County. The accident resulted when the front end of an automobile driven by the defendant Eleanor Perez struck the rear end of an automobile driven by plaintiff Mae Marie Mercer. The plaintiff Linda Hill, who is the minor sister of Mae Marie Mercer, was riding in the Mercer vehicle. The cause was tried before a jury and the jury returned a verdict in favor of the defendants. Plaintiffs moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The motion for a new trial was made on the sole ground of insufficiency of the evidence. The trial court denied plaintiff's motion for judgment notwithstanding the verdict, but granted their motion for a new trial. The court order, however, does not state the ground upon which the motion was granted in the precise language specified by section 657 of the Code of Civil Procedure. This order reads as follows:
'The court is of the definite opinion, after analyzing the evidence in this case, that there has been a definite miscarriage of justice. The court is of the opinion that the jury trying this case should have rendered a verdict for the plaintiffs, and against the defendants.'
Moreover, the court did not specify (either in its order granting a new trial or in written specifications filed thereafter) in what respects the evidence was insufficient. Accordingly, defendants appealed from the court's order granting a new trial and plaintiffs have cross-appealed from the judgment.
The pertinent provisions of section 657 of the Code of Civil Procedure, as amended in 1965, and in effect when the trial court granted plaintiffs' motion for a new trial in the instant case, read as follows:
'When a new trial in granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated.
'A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a contrary verdict or decision.
'The order passing upon and determining the motion must be made and entered as provided in Section 660 and if the motion is granted must state the ground or grounds relied upon by the court, and may contain the specification of reasons. If an order granting such motion does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification or reasons in writing with the clerk. The court shall not direct the attorney for a party to prepare either or both said order and said specification of reasons.
'On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons; provided, that the order shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict or other decision unless such ground is stated in the order granting the motion; and provided further that on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify Hence, three basic questions are presented in this appeal. These questions are:
I Is the order granting a new trial ineffective because it did not state the ground on which the motion was granted in the precise language used in section 657 of the Code of Civil Procedure?
II If not, did the trial court adequately specify its reasons for granting the motion?
III If the trial court did not adequately specify its reasons for granting the motion, did its failure to do so vitiate the order?
I
Prior to the 1965 amendment to section 657 of the Code of Civil Procedure the Supreme Court had unequivocally held that when a motion for a new trial was made on several grounds (including insufficiency of the evidence), and the court's order granting the motion was in general terms mentioning no ground, it had to be assumed that it was not based on insufficiency of the evidence even though it was obvious from the record that the trial court intended to grant the new trial on that ground. (Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 12 Cal.Rptr. 257, 360 P.2d 897; Malkasian v. Irwin, 61 Cal.2d 738, 40 Cal.Rptr. 78, 394 P.2d 822). The only exceptions were if the evidence was insufficient as a matter of law and was without conflict in any material point, or if insufficiency of the evidence was the sole ground for moving for a new trial (Ice-Kist Packing Co. v. J. F. Sloan Co., 157 Cal.App.2d 695, 321 P.2d 840). Thus, the Supreme Court in Aced was careful to state (Aced, supra, 55 Cal.2d at 579, 12 Cal.Rptr. at 260, 360 P.2d at 900):
'We are likewise not concerned here with cases which hold that where the sole ground for new trial stated in the motion is insufficiency of the evidence, an order for new trial made without statement of any ground is adequate to show that it was granted on the ground of insufficiency of the evidence. E. g., Ice-Kist Packing Co. v. J. F. Sloan Co., 157 Cal.App.2d 695, 697-699, 321 P.2d 840; cf. Van Ostrum v. State of California, 148 Cal.App.2d 1, 4, 306 P.2d 44.'
Moreover, the decisions also indicated that some departure from the terminology of section 657 was permissible if the intention of the court to grant a new trial upon insufficiency of the evidence was reasonably clear from the order itself. Thus, in Pacific Hardware & Steel Co. v. Cheim, 169 Cal.App.2d 339, 342, 337 P.2d 508, 510, the court stated:
'But there is no rigid formula for the statement that the order is based upon insufficiency of the evidence. The order as a whole is to be construed. If it may be inferred from the language used that such insufficiency is the ground, the order must be held to have been based upon such ground. [Cites omitted.] If the order 'uses any language that reasonably can be construed as including insufficiency of the evidence, the language will be interpreted as including that ground.' [Cites omitted.]'
And in the case of Frantz v. McLaughlin, 64 Cal.2d 622, 624, 51 Cal.Rptr. 282, 283, 414 P.2d 410, 411, decided after Aced and Malkasian, the court had this to say:
"It is preferable, of course, that the statutory language be used. Some departure In the instant case, not only was insufficiency of the evidence the only ground for plaintiffs' motion, but the language used by the trial judge in the order granting the motion was neither vague or ambiguous. To the contrary, although he did not precisely state that he was granting the new trial on the ground of insufficiency of the evidence, his intention to do so was clear and unequivocal. He stated that he had analyzed the evidence and from this he concluded that there had been a miscarriage of justice, and the jury should have rendered a verdict for the plaintiffs. This plainly indicates that insufficiency of the evidence was the only ground upon which he ground the motion, and it manifest that the order would have been sufficient had it been filed pursuant to Code of Civil Procedure section 657 prior to its amendment. Hence, it remains only to consider whether the amendment has changed the decisional law in this respect. We believe not. The previous terminology--'* * * the order shall so specify this in writing * * * otherwise, on appeal from such order it will be conclusively presumed that the order was not based upon that ground * * *'--which was intended to require a statement of the ground in some unmistakable way is substantially the same and obviously serves the same purpose as the present language--'* * * provided, that the order shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict * * * unless such ground is stated in the order granting the motion * * *.' Accordingly, we conclude that the answer to the first question is in the negative.
Prior to its amendment in 1965, the relevant portion of section 657 of the Code of Civil Procedure provided:
II
Section 657 of the Code of Civil Procedure, as amended, provides that when the trial court grants a motion for new trial it must not only state the ground or grounds upon which the motion is granted, but it must also specify its reasons for each ground stated. This may be done in the order itself or by written specification filed within ten days after the filing of the order. Consequently it is arguable that this means that when the court grants a motion for a new trial on the ground of insufficiency of the evidence, it must specify in what particulars the evidence is insufficient. It is also arguable that since the court failed to do so its order granting plaintiffs' motion for a new trial was vitiated.
It is a cardinal rule that a statute should be given reasonable interpretation, in accordance with the apparent purpose and intention of the lawmarkers (County of Alameda v. Kuchel, 32 Cal .2d 193, 195 P.2d 17). However, section 657 does not expressly state that when the court grants a new trial on the ground of insufficiency of the evidence it must specify in what respects the evidence is insufficient, nor is it apparent that such was the legislative intent. To the contrary, the term 'reasons' has various meanings, and if anything it is apparent that the legislative intent cannot be ascertained from reading the section alone. Thus, we must resort to legislative history for assistance.
The legislative history discloses that the following transpired. In 1961 the Legislature 'Also when an order granting a new trial states that it is granted on all or any of the issues for insufficiency of the evidence, the court shall prepare and specify in writing the respects in which the evidence is insufficient to sustain the verdict or decision * * *. Unless the specification is made as herein provided, the order shall not be affirmed on appeal upon the ground of insufficiency of the evidence.'
Clearly then, under the 1961 bill which was adopted by the Legislature but pocket vetoed by the Governor, the trial court was required to specify with particularity the respects in which the evidence was insufficient, and the appellate court was authorized to affirm only if such specification had been made. In 1963 the Legislature made a second attempt to amend the section by the adoption of Senate Bill 765. This bill purported to change the terminology 'insufficiency of the evidence' to 'no substantial evidence,' and in this connection provided:
'* * * and if the new trial is granted upon the ground * * * of no substantial evidence, the order shall state * * * why the evidence is not substantial, and if the new trial is granted upon the ground of excessive damages, the order shall set forth with particularity how and in what manner the damages appear to be excessive, and why they appear to have been given under the influence of passion and prejudice; * * *.'
The bill, however, was also pocket vetoed by the Governor for, among other reasons, it imposed a burdensome responsibility on the trial judge.
In 1965, after a number of revisions and compromises, the Legislature adopted Senate Bill 24 in still another effort to amend section 657. In this bill, which was signed by the Governor, much of the objectionable language contained in the previous bills which were pocket vetoed was removed. Among other things, although the trial court is still required to specify its reasons for granting a new trial for each ground stated in its order, it is not expressly directed or ordered to do so with particularity even when a new trial is ordered on the ground of insufficiency of the evidence. Thus, although it is clear that when the trial judge grants a new trial on the ground of insufficiency of the evidence he must do something more than merely state the ground, it is also clear that he may do something less than specify with particularity in what respect the evidence is insufficient. Accordingly, we must look elsewhere for the answer as to what the Legislature actually intended.
The bills which were pocket vetoed by the Governor either required or inferentially permitted the appellate court to reweigh the evidence in deciding whether the trial court abused its discretion when it granted a new trial on the ground of insufficiency of the evidence. When these bulls were adopted by the Legislature it was settled that the appellate court could not reweigh the evidence, and that the trial court's discretion would not be disturbed where the evidence was in substantial conflict (Dempsey v. Market Street Ry. Co., 23 Cal.2d 110, 142 P.2d 929). Significantly, this objectionable language was also removed from the bill which was adopted by the Legislature in 1965 and signed by the Governor. In fact, the section as amended state that: '* * * such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.' And, this language is substantially in accord with the decisional law. Thus, we conclude that the requirement that the court shall specify its reasons for granting a new trial on the ground of insufficiency of the evidence must be correlated with the language of the last paragraph, and when so correlated it becomes reasonably apparent that the trial court's reasons are adequately The only issues in the instant case at the outset of the trial were negligence, proximate cause, and nature and extent of plaintiffs' damages (defendants had not raised any special defenses such as contributory negligence or assumption of risk). By returning a verdict in favor of the defendants, the jury obviously found either that they were not negligent, or that while negligent, said negligence was not the proximate cause of the plaintiffs' injuries. The trial judge declared that he had analyzed the evidence, found a miscarriage of justice, and determined that the jury should have returned a verdict for the plaintiffs. In so doing he plainly expressed his belief that the plaintiffs had established defendants' liability and specifically that, according to the evidence, the defendants were negligent and that said negligence was the proximate cause of plaintiffs' injuries. Consequently, we are able to review the record with the mandate of the last paragraph of section 657 in mind, and we conclude that the trial judge not only did not abuse his discretion when he ordered the new trial, but that there were compelling reasons for his doing so.
Having determined that the trial court adequately specified its reasons for granting a new trial on the ground of insufficiency of evidence, we do not find it necessary to decide the question as to whether a failure to do so would have vitiated the order.
The order granting a new trial is affirmed. The appeal from the judgment is dismissed.
CONLEY, P. J., and STONE, J., concur.
'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. * * *'