Bakurjian v. Pugh

California Court of Appeal Feb 8, 1935 No. Civ. 8836Published

Before: Roth

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Holding. The court reversed an order granting a new trial because the trial court failed to specify 'insufficiency of the evidence' as the ground for the order, which is the required legal basis for challenging inadequate damages.

Issues

Whether an order granting a new trial can be sustained when the trial court failed to specify the grounds as required by statute.
Whether inadequate damages can be reviewed under the ground that the verdict is 'against the law' or must be reviewed under 'insufficiency of the evidence.'

Disposition. reversed

Quotations verified verbatim against the opinion

“The third ground cannot be considered because the minute order granting the motion does not specify it as one of the grounds upon which the motion was granted.”

“it seems to be just as thoroughly settled that if granted for that reason, the order granting same must be placed upon the ground of the insufficiency of the evidence, and it is trite law that when a motion for a new trial is granted for that reason, the order must sáy so.”

ROTH, J.,

pro tem.

Plaintiff and respondent received injuries in an automobile accident, consisting of a sprain of the left shoulder, a laceration of the left upper lip, laceration of the palmar surface of the right little finger, a laceration of the left forearm, a laceration of the right forearm, swelling and discoloration of the left knee and left eye. Some of the testimony indicated that the scars from the lacerations are permanent and that at the time of the trial there was still some disability in the injured finger. A jury awarded her a verdict of $500. Judgment having been entered on the verdict, she made a motion for a new trial on the following grounds:

1. Irregularity of the proceedings which prevented a fair trial.

2. The jury in awarding damages were under the influence of passion and prejudice.

3. The evidence is insufficient to justify the verdict.

4. The verdict is against the law.

5. Errors of law occurring at the trial.

Upon hearing the motion the court, eliminating the unimportant recitals, caused the following order to be entered in the minutes: “ . . . Said motion is by the court granted.”

Appellant—defendant in the trial court—appeals from the order. No affidavits were filed in support of the motion.

[452]

Appellant asserts, and it is not denied by respondent, that the only point raised upon argument of the motion was that the damages awarded were grossly inadequate. The record, other than the ground stated in the notice of intention, discloses nothing in this regard, but even if the assertion of appellant is true, it is settled law that the order would be sustained if it could be sustained on any of the grounds set forth in the notice of motion, unless for some reason such ground cannot be considered.

The first ground urged cannot be considered because there are no affidavits in support of it. (Code Civ. Proc., sec. 658.)

The second ground cannot be considered, because it has been held that subdivision 5, section 657 of the Code of Civil Procedure, which provides, as one of the grounds for new trial ‘ ‘ excessive damages, appearing to have been given under the influence of passion and prejudice ’ ’, does not apply to a situation in which inadequate damages may have been given. In

Bakurjian v. Pugh

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ROTH, J.,

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