Breeze v. Southern Petro Tank Line Co.

WILLIS, J., pro tem.

This is an appeal from an order granting a new trial after verdict and judgment in favor of defendants, appellants herein, in an action for damages for personal injuries resulting from a collision of automobiles. The motion was based on all the statutory grounds excepting that relating to excessive damages, and recited that it would be made upon the minutes of the court and the entire records and files. Notwithstanding no mention is made therein of intent to use affidavits in support of any ground stated, respondent presented and filed two affidavits relating to alleged misconduct of a juror, which affidavits were used on the hearing of the motion. The order granting the motion was as follows: “Plaintiff’s motion for a new trial, heretofore submitted, is now by the court granted.”

In the absence of a statement in the order that a new trial was granted upon the ground of the insufficiency of the evidence to justify the verdict, it must be presumed on this appeal that the order was not made upon that ground. (See. 657, Code Civ. Proc.) This precludes this court from a consideration of the sufficiency of the evidence to sustain the verdict unless it is insufficient in law and without material conflict.

(Phillips

v.

Powell,

210 Cal. 39

[510]

[290 Pac. 441].) Upon examination of the record before us we cannot say that there is no real conflict on any material point, and that the evidence, therefore, as a matter of law, does not justify the verdict for defendants.

The notice of intention to move for a new trial must designate the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both. (Sec. 659, Code Civ. Proc.) This latter requirement is mandatory, and on the hearing of the motion the moving party must be confined to the records specified in his notice.

(Schmitt

v.

White,

172 Cal. 554 [158 Pac. 216].) In view of our conclusions reached herein, we deem it necessary to consider whether the court considered the affidavits used on the motion in support of the ground of misconduct of the jury, or whether the order granting a new trial was based on that ground. And we must presume that the order was not based on the grounds either of irregularity in proceedings, accident or surprise, or newly discovered evidence, for the reason that section 658 of the Code of Civil Procedure requires that application for a new trial on either of the grounds above specified must be made upon affidavits, and no affidavits in support of either of these grounds. were noticed or filed. By this process of elimination there is left for consideration but one ground upon which the order might be founded, viz., errors in law occurring at the trial, other than that of insufficiency of the evidence as a matter of law, above disposed of.