Hall v. Murphy

BRAY, P. J.

Defendant appeals from an order granting new trial.

Questions Presented

1. Did the order granting new trial unless both parties stipulate to an increase in the amount of the judgment constitute an additur by use of a conditional order?

2. Was there an abuse of discretion in granting a new trial for inadequacy of damages?

3. Is this a frivolous appeal?

Record

This is an action for damages for personal injuries received in an automobile collision. The jury awarded plaintiff $6,791.02. On motion for new trial the following order was entered: “Ordered that plaintiff’s motion for a new trial is Granted upon all of the issues in this cause, solely upon the ground of insufficiency of the evidence to justify the verdict (and denied upon all other grounds), unless defendant, Everett T. Murphy and plaintiff, Glenn Lee Hall, in writing, do stipulate on or before June 10, 1959, that the verdict of the jury may be set aside and judgment entered for plaintiff, Glenn Lee Hall, and against defendant, Everett T. Murphy, in the amount of $13,500.00, together with costs.” The order further provided that if such stipulation was filed within the time provided, the motion for new trial would be denied.

1.

Order Not Conditional Additur.

Dorsey

v.

Barba

(1952), 38 Cal.2d 350 [240 P.2d 604], held that in this state a court may not increase an inadequate award in a case involving contested and unliquidated damages without the defendant’s consent, and that the court had no power to make the denial of a motion for new

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trial conditional on the plaintiff alone agreeing to an increase in the award. However, we are faced with no such situation here. The change in the jury’s award could only be made by the consent of both parties. The court, if it reasonably felt, as it did, that the damages were inadequate, could have granted the new trial without suggesting an amount which it thought the evidence warranted.