Verzola v. Russi

California Court of Appeal Sep 7, 1955 No. Civ. 16592Published

Before: Nourse

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Holding. The court held that an order granting a new trial cannot be sustained on the ground of insufficiency of the evidence when that ground is not specified in the order, particularly where the evidence is in material conflict.

Issues

Whether an order granting a new trial can be supported by insufficiency of the evidence if that ground is not specified in the order.
Whether the evidence presented at trial was without conflict such that the verdict could be considered against law.

Disposition. reversed

Quotations verified verbatim against the opinion

“Since insufficiency of the evidence to support the verdict was not specified, it must be assumed that the order granting the motion was not based on that ground.”

“Evidently there is here material conflict in the evidence and evidence from which the jury could conclude that respondent Russi was negligent in driving on the wrong side of the road.”

NOURSE, P. J.

These are reciprocal actions for personal and property injury arising out of a motor vehicle collision. Both sides charged negligence and contributory negligence. The case was tried to a jury which returned a verdict that neither party should recover. On motion of defendant Russi a new trial was granted. The appeal is taken by Verzola from that order.

The motion was made on all statutory grounds except excessive damages. The order does not specify the grounds on which it was granted and specifically does not mention insufficiency of the evidence as such ground. Appellant’s primary contention is that insufficiency of the evidence can then not be considered in support of the order, unless the evidence is without conflict and as a matter of law does not support the verdict so that the verdict is against law; that many conflicts in the evidence prevent the applicability of the exception ; that there is no error as to admission of evidence, hardly any objection having been made by respondent in that respect; that the instructions are standard and correct and that no affidavits have been filed in support of other grounds for new trial, so that there is no justification for the order. Respondent defends the order on the ground only that neither as a matter of law nor according to the preponderance of the evidence contributory negligence of respondent Russi preventing his recovery was proved. No errors of law nor any other statutory grounds are urged in support of the order.

We have concluded that appellant’s position must be sustained.

“Since insufficiency of the evidence to support the verdict was not specified, it must be assumed that the order granting the motion was not based on that ground.’’

(Malloy

[332]

Fong,

37 Cal.2d 356, 376 [232 P.2d 241] ; Code Civ. Proc., § 657.) There are intimations in the cases that a decision is against law and a new trial may be granted on that ground if the evidence is “insufficient in law, and without conflict in any material point. ’ ’

(Biaggi

Verzola v. Russi

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NOURSE, P. J.

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