Opinion
Page __
__ Cal.App.2d __ 259 P.2d 988 UPPER v. SUFFERN et al. Civ. 19281. California Court of Appeals, Second District, First Division July 20, 1953As Modified on Denial of Rehearing Aug. 11, 1953.
Hearing Granted Sept. 17, 1953.
Case dismissed Feb. 4, 1954.
[259 P.2d 989] Schell, Delamer & Loring, Los Angeles, for defendants, respondents and cross-appellants Poteet and United Parcel Service.
William Barnett Spivak, Beverly Hills, Jacob Chaitkin and Douglas J. Stapel, Pasadena, for plaintiff, appellant and cross-respondent Upper.
SCOTT, Justice pro tem.
Defendants Poteet and United Parcel Service of Los Angeles, Inc., appeal from an adverse judgment following a verdict in a personal injury case. Defendant Suffern does not participate in this appeal. The named defendants are called cross-appellants for the following reason: After the verdict and judgment they made a motion, under section 629 of the Code of Civil Procedure, as amended 1951, in the alternative for a judgment notwithstanding the verdict, or for a new trial. The motion for judgment notwithstanding the verdict was denied and the motion for new trial was granted, on the ground of the insufficiency of the evidence. This order appears in the minutes of the court but it was not followed by a written order signed by the judge and filed with the clerk, as required by the provisions of section 657 of the Code of Civil Procedure. From this latter order granting new trial, plaintiff appealed. Thereupon, defendants appealed from the order denying motion for judgment notwithstanding the verdict and from the judgment. On motion of plaintiff this court made the following order, 'Defendants' attempted appeal from the order denying a judgment non obstante veredicto is dismissed without prejudice to the defendants' appeal from the original judgment', 116 Cal.App.2d 5, 253 P.2d 486, 488. Later, plaintiff's appeal from the order granting motion for new trial was dismissed under Rule 17(a) of Rules on Appeal, because plaintiff had filed no brief. This leaves defendants' appeal from the judgment as the sole matter requiring consideration.
Defendants now urge the insufficiency of the evidence to support the verdict and judgment. They assert that they would not be content with a new trial which would result from a reversal without direction, and they now ask that the trial court be directed to enter judgment in their favor which would be 'a final determination of the rights involved'. The words last quoted are taken by defendants from the opinion of this court above cited, 116 Cal.App.2d 5, 253 P.2d 486, 488 and, out of context, might be construed as supporting their contention that they are now entitled to a directed judgment in their favor, rather than a trial de novo. It is obvious, however, that the quoted words mean no more than that matters legally determined on this appeal become the law of the case and are controlling on the trial court hereafter.
The evidence shows that defendant driver was going east on Franklin Avenue in Los Angeles, and stopped for westbound traffic before making a left turn onto an intersecting street. Plaintiff was a guest in an automobile going east on the street, [259 P.2d 990] following behind defendants' truck. It stopped ten feet behind the truck when the latter had ceased moving preparatory to making the left turn. After allowing some westbound vehicles to pass him defendant driver proceeded to make his left turn. When he started his turn he saw defendant Suffern approaching him from a point some distance to the east. Defendant Suffern, westbound, after he approached the truck which was completing its left turn, swerved his automobile to his left to avoid hitting the truck and in doing so went over so far that it collided with the automobile in which the plaintiff was riding.
It is obvious that the trial court regarded the evidence presented at the previous trial as insufficient to support the verdict, although through inadvertence of counsel, the written order granting motion for new trial was not signed. Under the provisions of section 657 of the Code of Civil Procedure, because of the absence of such order, 'on appeal from such order it will be conclusively presumed that the order was not based upon that ground'. No other ground is stated in the minute order nor is any suggested by defendants on this appeal.
Plaintiff, by abandoning her appeal from the order for a new trial may be deemed to acquiesce in a new trial and to consent to having the evidence again considered by the court or by a jury under appropriate instructions.
We note that these same defendants who are now appealing from the judgment, at a previous time when their motion for judgment notwithstanding the verdict had been denied did not then avail themselves of their right which they then had to appeal from the judgment, but in lieu thereof, made their alternative motion for a new trial. When this motion was granted they were precluded from an appeal until plaintiff had filed her appeal which then permitted defendants to file their cross-appeal, Rule 3(a)--Rules on Appeal. After a careful consideration of the evidence and the inferences drawn therefrom, it is obvious that defendants, on this appeal, are not entitled to a reversal of the judgment with directions to the trial court to enter judgment in their favor. An appellate court will not preclude further proceedings below by directing entry of a final judgment unless it is clear from the record that the losing party on appeal will be unable to make an additional substantial showing in support of his case 4 Cal.Jur.2d 558; Pollitz v. Wickersham, 150 Cal. 238, 251, 88 P. 911.
As the court pointed out in Green v. Key System Transit Lines, 116 Cal.App.2d 512, 521, 253 P.2d 780, 786. "Modern psychological experiments have shown that, due to the quickness with which an accident happens, those who see it, and those who participate in it, may not get clear impressions. If, after trial, an appellate court attempted to weigh every one of these impressions which may seem contradictory, by the rules of the exact sciences, few verdicts could stand.' (Citing cases.) * * * 'in cases of this nature, such arguments are unreliable because they fail to take into account the human element, what may have been done by the respective drivers, and because of the many uncertainties which necessarily exist in such matters as the respective weights of the cars, the respective speeds, the exact positions, the force and direction of the blows, and many other elements."
We are of the opinion that the defendants were more nearly correct in their position as to what was necessary and proper at the time when they sought a new trial. The trial court, as we have already noted, and, more recently, the plaintiff, have agreed that this retrial of the entire case on its merits would be in the interests of justice. Defendants' appeal from the judgment imposes upon themselves more strict and exacting standards for evaluating the evidence than was the situation when the trial court considered and ruled upon the motion for new trial.
When a judgment is attacked as being unsupported by the evidence, the power of the appellate court in passing on this question begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the verdict rendered by the jury; and on appeal from a judgment for plaintiff in an action for [259 P.2d 991] damages for negligence, all conflicts in the evidence must be resolved in favor of the plaintiff and all legitimate and reasonable inferences indulged in to uphold the judgment, if possible; and when two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the jury. Crawford v. Southern Pac. Co., 3 Cal.2d 427, 45 P.2d 183; Arundel v. Turk, 16 Cal.App.2d 293, 60 P.2d 486; Martin v. Martin, 79 Cal.App.2d 409, 179 P.2d 655; Balasco v. Chick, 84 Cal.App.2d 802, 192 P.2d 76.
If we analyzed the evidence according to this more strict and exacting standard, we might conclude that the judgment should be affirmed. In that event defendants would be denied the new trial they desire and which both the trial court and their adversary have agreed they should have. If, on the other hand, judgment is reversed, the case would merely be remanded to the trial court for a new trial.
Upon the abandonment of her appeal by plaintiff the reason for the cross-appeal by defendants ceased to exist. These defendants, by persisting in their appeal, could hope to gain no more than they were already entitled to under the order granting them a new trial. The possibility that they might recover their costs on appeal in addition to getting a reversal resulting in a new trial has apparently outweighed in their minds the risk they assume by insisting that the evidence by evaluated according to the exacting standard required by law under the cases cited above.
Under section 955 of the Code of Civil Procedure, 'The dismissal of an appeal is in effect an affirmance of the judgment or order appealed from, unless the dismissal is expressly made without prejudice to another appeal.'
The record in its entirety indicates that an affirmance of the judgment by such a dismissal or otherwise, would be a miscarriage of justice. Another appeal on this same record would be unwise and futile. For these reasons the case could not be dismissed without disregarding essential rights of the parties.
We have concluded that substantial justice will result to all parties if we regard plaintiff's abandonment of her appeal by failing to file a brief, resulting in this court's dismissal of her appeal as a withdrawal of any objection she might have to a consideration of the evidence in a light which will permit a reversal of the judgment and its legal consequence, which will be a new trial.
Rule 26(a), Rules on Appeal, relating to costs, provides, 'In any case in which the interests of justice require it, the reviewing court may make any award or apportionment of costs which it deems proper.' The unusual circumstances set forth above have led us to the decision that the respective parties should bear their own costs.
We are aware that when a judgment is reversed without directions in the usual case a trial de novo results without necessity of ordering it. To avoid any possible confusion we are making our order in this case more specific.
Judgment reversed and cause remanded for a new trial. The respective parties will bear their own costs on appeal.
WHITE, P. J., and DORAN, J., concur.