Warren Southwest, Inc. v. Wicks

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26, 1967, reading, “Motion for new and different judgment granted. Motion for new trial denied. Counsel notified this date, by copies of Memo filed this date” to be construed as an order made under section 663 or section 662 of the Code of Civil Procedure?

1

We have concluded for the reasons set forth below that it should be deemed to be an order made under section 662 and that the judgment and order appealed from should be affirmed.

I.

Plaintiff, Warren Southwest, Inc., brought an action to recover the value of a tandem-roller, which defendant, C. H. Wicks, had rented from plaintiff and which was demolished totally while in possession and control of defendant. Plaintiff based its action on the theory that defendant was a bailee for hire and negligent. In addition to damages for the roller itself, plaintiff prayed for the amount of the agreed rental, for loss of use, and for cost of removing the wrecked roller.

Defendant appropriately denied the allegations setting up plaintiff’s theory of recovery. The pretrial order further deemed plaintiff’s complaint “amended to allege a permissive bailment, as well as bailment for hire” and defendant’s answer amended to allege that plaintiff’s agent was operating the roller at the time of the accident.

The ease was tried to a court sitting without a jury. Findings of fact and conclusions of law were waived. On May 26, 1967, the trial court signed a judgment (entered May 29,

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1967) that plaintiff recover the stun of $50 (for rental only) from defendant, and each party hear its own costs.

On May 24, 1967, counsel signed a stipulation whereby it be deemed that the trial court had made an oral finding of fact that "the defendant, G. H. Wicks, was the bailee for hire of the plaintiff’s tandem roller and that said bailment continued to and including the time of the destruction of said roller.” The court signed its order, "It Is So Ordered” on the stipulation, which was filed May 26, 1967, a date prior to the entry of the original judgment.