McFarland v. Kelly

GRIFFIN, P. J.

This action arose out of an automobile accident in which defendant ran into the rear of plaintiff’s ear. At the trial, the jury found defendant liable, but awarded plaintiff only $2,000 damages. Plaintiff moved for a new trial and the court granted the motion.

The principal conflict in the evidence at the trial concerned plaintiff’s injuries. It was established that shortly after the accident plaintiff was suffering from manifestations of a whiplash injury when she noticed a swelling on her neck under her chin about the size of a walnut. The swelling and her whiplash injury caused her some discomfort and she lost time from her work. The swelling was finally removed by an operation. It was found to be a goiter. There was a conflict in the testimony of the doctors as to whether the goiter was attributable to the accident.

On the other hand, the evidence as to the amount of plaintiff’s damages was not controverted. She spent $1,249 for medical treatment and she lost time to the extent of about $1,610 on account of her injuries, the goiter and the subsequent operation. Thus, her total out-of-pocket loss was $2,859. Of course, there was a dispute as to whether all of these expenses were caused by the accident.

Plaintiff’s notice of intention to move for a new trial specified, among other grounds, “inadequacy of damages awarded” as a ground for new trial, but made no specific mention of “insufficiency .of the .evidence.” However, the memorandum of points and authorities in support of her motion for

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new trial, which was filed with the notice of intention to move for new trial stated:

“This plaintiff respectfully urges her motion on the three (3) following grounds: . . .

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“3. Insufficiency of evidence, or the verdict is against the law....”

The trial court specified, in the order granting a new trial, “insufficiency of the evidence” as the ground upon which the motion for new trial was granted.

Defendant contends that “inadequacy of the damages awarded” is not a ground upon which a California court can grant a new trial. It is also urged that since “insufficiency of the evidence” was not set forth as a ground in the notice of intention or notice of motion, the court is barred from granting a new trial upon this ground, under Code of Civil Procedure, section 659. (Citing such authority as