Rigall v. Lewis

HOUSER, J.

In an action brought for the purpose of recovering a judgment for damages that resulted to plaintiff Kigali as the surviving husband, and to plaintiffs Sundsmo, as the surviving parents,, of a woman passenger in an automobile that collided with another automobile at a street intersection, plaintiffs weré awarded a verdict in the sum of one dollar. On the specified ground of the insufficiency of the evidence to sustain the verdict, by order of the trial court the general motion for a new trial interposed by plaintiffs was granted, with the issues on the hearing of such new trial limited to a determination of the amount of damages that should be awarded to plaintiffs. It is from such order, as well as from the judgment in said action, that the instant appeal is prosecuted.

The first point urged by appellant to the effect that on granting a motion for a new trial the trial court had no authority to grant it as to part of the issues only,' is refuted by the provisions contained in sections 657 and 662 of the Code of Civil Procedure, as well as by the respective rulings made in each of the cases of

Tumelty

v.

Peerless Stages,

96 Cal. App. 530 [274 Pac. 430], and

Amore

v.

Di Resta,

125 Cal. App. 410 [13 Pac. (2d) 986]. (See, also, 20 Cal. Jur. 35.) However, appellant suggests that because the verdict for plaintiffs was for nominal damages only, the clear indication was that the jury meant to return a verdict in favor of defendant. In that regard, it may be conceded that in some jurisdictions such a rule would seem to prevail; but in this state it is well established that where, as here, the reason specified by the trial court for granting

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a new trial is that the evidence adduced on the trial of the action was insufficieint to sustain the verdict, the order by which the new trial was granted will not be disturbed on appeal therefrom, unless an abuse of discretion by the trial court is plainly apparent. It also has been decided that if any appreciable conflict exist as between the evidence produced by the respective parties to the litigation, such an order is conclusive. (2 Cal. Jur. 908, 940, and authorities there cited.) That when a verdict returned in favor of the plaintiff is for a nominal sum the trial court is authorized to grant a motion presented by the plaintiff for a new trial, see