Frantz v. McLaughlin

BURKE, J.

Defendant McLaughlin appeals from an order granting a motion for a new trial in a personal injury action. We have concluded that no ground for reversal is shown, and that the order should be affirmed.

Plaintiff, a 17-year-old girl appearing by guardian ad litem, was participating in a float in a parade. As a part of the planned demonstration plaintiff, with other participants on the float, would occasionally jump off and pretend to push the float. While doing this plaintiff’s foot was run over and injured.

Plaintiff’s action for damages named five defendants, three of whom settled out of court for the total sum of $1,250. Following trial against the other two defendants, including McLaughlin, the court sitting without a jury rendered judgment in favor of plaintiff and against both 'defendants in the sum of $3,000 damages plus costs of suit.

Plaintiff filed a motion for a new trial specifying six grounds, including that of “Insufficiency of the evidence to justify the decision, or that it is against law.”

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The court took the motion under submission and within the time allowed by law made the following order, from which McLaughlin took this appeal:

“The Motion for New Trial . . . having been heretofore submitted to the Court . . . and after due consideration thereof, it is ordered that Motion for New Trial is

granted solely on the issue of damages alone.”

(Italics added.)

At the time the order was made (October 1964) section 657 of the Code of Civil Procedure provided in pertinent part that “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

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be conclusively presumed that the order was not base'd upon that ground. ’ ’