Straw v. Pacific Telephone & Telegraph Co.

WOOD, P. J.

In this action for damages for personal injuries allegedly resulting from a collision of automobiles, judgment upon a verdict was in favor of defendants Pacific Telephone Company and Robert J. Hitch. Also, judgment on Pacific Telephone’s cross-complaint was in favor of cross-defendant Straw (plaintiff). Plaintiff’s motion for a new trial was granted upon the ground of insufficiency of the evidence to support the verdict. Defendants Pacific Telephone and Richard J. Hitch appeal from the order granting the motion for a new trial.

Appellants contend that the court had no jurisdiction to grant a motion for a new trial because the notice of intention to move for a new trial was not served on appellant Robert

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J. Hitch, who is one of the adverse parties. Hitch, an employee of the telephone company, was driving the telephone company’s truck in the course of his employment when defendant’s truck and plaintiffs' automobile collided. Under the evidence it appears there would be no liability on the part of the telephone company (employer) unless there was liability on the part of defendant Hitch (employee).

Lawler, Felix and Hall were the attorneys of record for defendants Pacific Telephone and Richard J. Hitch. The notice of intention to move for a new trial recited at the beginning thereof as follows: “To Defendant Pacific Telephone and Telegraph Company, a corporation, and Lawler, Felix & Hall, its attorneys, and To Defendant Richard J. Hitch and A. K. Phelps, his attorney: Please Take Notice that. ...” A. K. Phelps was not attorney of record for Hitch and did not participate in the trial.

Service of the notice of intention to move for a new trial was made by mail. The affidavit of service of the notice states in part that “affiant served the within Notice of Intention to Move for a New Trial on the defendants in said action by placing a true copy thereof in an envelope addressed to the attorneys of record for said defendants at the office address of said attorney as follows: Lawler, Felix

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Hall Attorneys at Law 800 Standard Oil Building Los Angeles 15, California Mr. A. IC. Phelps Attorney at Law 3429 East Coast Highway Corona Del Mar, California.”