Palazzi v. Air Cargo Terminals, Inc.

Plaintiff brought this action to recover damages for injuries he sustained when he was struck by a truck owned by defendant Air Cargo Terminals, Inc., and operated by its agent defendant Benny Canales. At the time of the injury plaintiff was at a loading dock on the premises of Harris Company in San Bernardino to take delivery of a purchase which he had made. Plaintiff sued the truck owner, the driver, Harris Company and one of its employees. During the trial a settlement was reached between the plaintiff and Harris Company and its employee. The trial proceeded to conclusion as to defendants Air Cargo Terminals, Inc., and Canales and the jury returned a verdict for defendants. Plaintiff now appeals from the judgment on the verdict.

Plaintiff had alleged two causes of action against these defendants, one for negligence and one for wanton misconduct. Following appellant's opening statement, the court granted a motion for a nonsuit as to the wanton misconduct cause of action and the trial proceeded on the negligence cause of action.

The sole issue which plaintiff seeks to raise on this appeal is the propriety of the order granting the nonsuit. In order to reach that issue, however, certain procedural obstacles must be overcome. The judgment on the jury verdict from which plaintiff appeals only disposed of the negligence cause of action. So far as the record is concerned, there has been no appealable judgment or order dismissing the cause of action for wanton misconduct. Although prior to its amendment in 1963, section 581d of the Code of Civil Procedure permitted dismissals on nonsuits to be reflected by a minute order, the section now requires "a written order signed by the court." [1] The record contains a minute order granting the motion for a nonsuit but no signed order of dismissal. Prior to the 1963 amendment to section 581d, such a minute order was held to be an appealable order. (McColgan v.Jones, Hubbard Donnell, Inc., 11 Cal.2d 243 [78 P.2d 1010];Shepardson v. McLellan, 59 Cal.2d 83, 86 [27 Cal.Rptr. 884,378 P.2d 108].) In view of the present requirement of a written order signed by the court, such a minute order is no longer appealable. (Milton Meyer Co. v. Curro, 239 Cal.App.2d 480 [48 Cal.Rptr. 812].)

[2] Since respondent has not raised the foregoing issue and both parties have submitted briefs on the assumption that the propriety of the order granting the nonsuit is properly before us, this court may, in the interest of justice, order the judgment entered on the jury verdict to be amended by *Page 193 adding a paragraph dismissing the cause of action for wanton misconduct and treat the notice of appeal as a premature notice of appeal from that portion of the judgment dismissing the wanton misconduct cause of action. This practice has heretofore been followed and approved in like situations. (Shepardson v.McLellan, supra, 59 Cal.2d 83, 87-89; Gombos v. Ashe,158 Cal.App.2d 517 [322 P.2d 933]; Levizon v. Harrison, 198 Cal.App.2d 274, 284 [18 Cal.Rptr. 284]; Behr v. County of SantaCruz, 172 Cal.App.2d 697, 702 [342 P.2d 987]; Tsarnas v.Bailey, 179 Cal.App.2d 332, 337 [3 Cal.Rptr. 629].)