Hoffart v. Honig

TUTTLE, J.

This is an appeal from an order granting a motion for new trial.

This action was before this court on a previous occasion. (33 Cal. App. (2d) 591 [92 Pac. (2d) 436].) We there upheld an order granting a motion for new trial on the sole issue of damages. The facts of the case are fully stated in that opinion. The husband of plaintiff Catherine Ann Hoffart, and father of plaintiff Ileane Ann Hoffart, was killed when the automobile in which he was a guest was struck by a train. Defendant was the owner and driver at the time, and his negligence was established. The case was retried by a jury upon the sole issue of damages, and a verdict of $5,000 was rendered in favor of the surviving wife and minor child. Thereafter, a motion for new trial upon the part of plaintiffs was made and the trial court granted said motion upon the ground that the evidence was insufficient.

The oft-quoted rule governing an appellate court under such circumstances is thus stated in 2 California Jurisprudence, page 908, section 535:

“If there is an appreciable conflict in the evidence, action of the court in granting a new trial is conclusive in the appellate court; and even where there does not appear to be a conflict in the evidence, the action of the trial court will not be - disturbed where there appears to flow from the general surrounding circumstances of the ease, probable justification for discrediting or giving no weight to testimony which, on its face, may bear all the earmarks of probability.

[273]

The appellate court does not interfere with the action of the trial court in granting a new trial, even when the evidence on which it has acted may consist of depositions and documentary and oral evidence. However, if, upon undisputed facts found, but one correct conclusion of law is possible, and the superior court, mistaking the law, orders a new trial, its order will be reversed.”

It is the contention of appellant that this case comes within the exception to the rule which is found in the last sentence of the quotation. He urges that there is no conflict in the evidence respecting the damages, and that the granting of the motion was therefore erroneous.- We cannot say here that but one conclusion can be drawn from the evidence relating to the issue of damages. The various facts which the jury (and the court on motion), might consider in arriving at their verdict, are detailed properly in the following instruction which was given: