Spruce v. Wellman

WILSON,

J.—Action for personal injuries against Irene E. Wellman, The Pacific Telephone and Telegraph Company, and Francis Shade Connelly, the latter’s employee. After trial by jury a verdict was rendered in favor of defendants Telephone Company and Connelly. Judgment was entered on the verdict.

Plaintiff’s injuries resulted from a collision between an automobile driven by Ernest L. Wellman and a truck owned by the telephone company and driven by Connelly while in the course of performing his duties as an employee.

In due time plaintiff filed a “notice of motion for a new trial” which is addressed: “To the Defendant, Irene Wellman

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and to her attorney, Clarence B. Runkle, and to the defendant, Pacific Telephone & Telegraph Company, a corporation, and to its attorneys, Lawler, Felix & Hall, Leslie C. Tupper and Leland B. Conant. ’ ’ The affidavit of service by mail recites' that the notice of motion for a new trial was served on Irene Wellman and Pacific Telephone and Telegraph Company by mailing it to their respective attorneys, naming them. The notice is not addressed to Connelly and the affidavit of mailing does not state that it was mailed to him or to his attorneys.

The motion for a new trial was granted on the ground of insufficiency of the evidence to sustain or justify the verdict of the jury and the judgment entered thereon.

After the granting of the motion, plaintiff served a notice of the ruling addressed to all defendants

including Connelly

and the affidavit of service by mail states that the notice of ruling was served “on the Defendants in said action” by mailing to their respective attorneys.

Defendants The Pacific Telephone and Telegraph Company and Connelly have appealed from the order granting a new trial.

Plaintiff’s action against the telephone company is based on the theory of

respondeat superior.

If Connelly is not liable the company is not liable. Since the notice of motion for a new trial was not addressed to Connelly he was not called upon to defend against the motion and the court was without power to grant it as to him. Nevertheless, the court’s order is general in form, not specifying the parties upon whom it was intended to operate.