Lovett v. Dintzer

McCOMB, J.

From an order granting a motion for a new trial in an action to recover damages for personal injuries resulting from the alleged negligence of defendant, plaintiff appeals.

[166]

Facts:

Defendant was the owner of a building known as the Senate Hotel, in which one of the apartments was leased to plaintiff. On February 7, 1953, having occasion to leave the hotel, plaintiff went out the rear exit and as he opened the screen door onto the porch he heard a noise and looked up and saw bricks falling. He lost his balance and tried to move out of the way but fell over a railing to the ground 15 feet below and received personal injuries. The jury returned a verdict in favor of plaintiff in the sum of $14,000.

Defendant filed a notice of intention to move for a new trial upon the ground, among others, that the jury had awarded excessive damages under the influence of passion and prejudice. The minute order of the trial court granting the motion for new trial read: “Motion for a New Trial is granted upon the following grounds, to wit: Errors of law in instructing the jury and in refusing to give instructions requested by defendant.”

The sole question necessary for us to determine is whether the trial court erred- in granting the motion for a new trial.

This question must be answered in the negative and is governed by these rules:

(1) An order granting a motion for a new trial will be affirmed if it can be sustained upon any ground stated in the notice of intention to move for a new trial.

(Parks

v.

Dexter,

100 Cal.App.2d 521, 524 [2] [224 P.2d 121].)

(2) When a motion for a new trial is granted on errors of law, even if the order specifies the ground upon which it is granted, an appellate court is not limited to a consideration of the ground stated in the order but will consider any ground stated in the notice of intention to move for a new trial.

(Scott