WARD, J., Dissenting. I dissent.
Ordinarily an order granting a motion for a new trial is presumed to be valid. (Code Civ. Proc., sec. 1963.) With respect to the order of the trial court on which this appeal is based, the presumption is overcome by the obvious noncompliance of the order with the terms of the statute. In no unmistakable terms the legislature has directed that an order granting a new trial on “all . . . issues” or part of them upon the ground of the insufficiency of the evidence, shall so specify, and that otherwise on appeal the order will be presumed not to be based upon that ground. (Emphasis added.) (Code Civ. Proc., sec. 657, as amended by Stats. 1919, chap. 100, p. 141.) Hence it is necessary “on appeal” to presume that the order is not based on the insufficiency of the evidence unless it so specifies. This view has been adopted by the Supreme Court of this state. In not one opinion rendered by the Supreme Court is there a departure from this rule except in the instance where it appears that the evidence is “insufficient in law, and without conflict in any material point.” (Biaggi v. Ramont, 189 Cal. 675, 677 [209 Pac. 892].) In no case called to my attention has any opinion been rendered by the Supreme Court wherein there has been the slightest variance from this rule, and in no case has the evidence been analyzed indicating that it was “in[173]sufficient in law”. The District Court of Appeal in a few cases and evidently in the interest of justice adopted a liberal interpretation of the provisions of the section.
An excellent analysis of the necessary specifications under the provisions of section 657 appears in an opinion, written by Judge Schauer, Appellate Department, Superior Court, County of Los Angeles, in the ease of Gruben v. Leebrick & Fisher, Inc., 32 Cal. App. (2d) (Supp.) 762 [84 Pac. (2d) 1078], a portion of which opinion I adopt as expressing my views applicable to the precise question on appeal in the present case: “1. The concluding paragraph of said section 657 by its terms provides only for the ease where the new trial is granted upon the ground of the insufficiency of the evidence to sustain the verdict; it makes no reference to a case tried by the court without a jury where the motion is granted on the ground of insufficiency of the evidence to sustain a finding.
“2. Various sections in part 2, title 8, chapter 7, article II, of the Code of Civil Procedure, within which division we find said section 657, distinguish unmistakably between trials by a jury, which are resolved by verdict, and trials by the court without a jury, which are determined by the court’s findings of fact and conclusions of law, sometimes termed the decision.
“In this respect said section 657 itself recognizes the distinction ; it reads: ‘ The verdict may be vacated and any other decision may be modified or vacated, . . . and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: . . .
“ ‘6. [The precise subdivision here involved.] Insufficient evidence. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.’ (Emphasis added.)
“ ... As we have heretofore suggested, the amendment of 1919 by its terms creates the requirement for specification of the ground in the order only where such ground is ‘insufficiency of the evidence to sustain the verdict’ and does not purport to make a similar statutory modification of the law applicable to an order based on insufficiency of the evidence to sustain the ‘decision’, which is specifically mentioned, sepa[174]rately and distinctly from ‘verdict’, in subdivision 6 of said section. ’ ’
Subsequent to the decision in the Gruben case, the legislature amended section 657 by specifying that its provisions covered both verdict and decision, and further, that on appeal such an order is to be conclusively regarded as not based upon the ground of insufficiency of the evidence. (Stats. 1939, chap. 713.)
Lucerne Country Club v. Beal, 21 Cal. App. (2d) 121 [68 Pac. (2d) 408], cited in the majority opinion, is not controlling in this case. There the issues upon which the motion for a new trial was granted were limited to the cross-complaint and the answer. In this case the order is general and applies to every issue appearing from the pleadings, which necessarily includes responsibility and liability for the accident, not only between the plaintiffs and the appealing defendant, but also liability as between this defendant and the other defendants not parties to this appeal. Nothing appears in the record and no contention is made that the evidence to sustain the, verdict against the appealing defendant is insufficient in law. In Yoakam v. Hogan, 198 Cal. 16, 20 [243 Pac. 21], the court said: “As the order granting the motion for a new trial was general, and did not specify that it was granted because of the insufficiency of the evidence, it will be presumed on this appeal that the order was not based on that ground. (Code Civ. Proc., sec. 657.) We are precluded by the code provision from considering the question whether or not the evidence is sufficient to sustain the verdict, unless it is insufficient in law, and without material conflict in any material point.’’ Moreover, the appeal from the order granting the new trial in the Lucerne ease was from a decision rather than from a verdict, and accordingly the decision in that case is not applicable in this matter.
However, in other cases wherein verdicts have been entered the District Court of Appeal has given a different interpretation to the section. For instance, if the order was granted upon the ground of excessive or inadequate damages, the question immediately arises whether or not the damages could be considered in a new trial without consideration of all the evidence in the case. (Griffey v. Pacific Elec. Ry. Co., 58 Cal. App. 509 [209 Pac. 45] ; Secreto v. Carlander, 35 Cal. App. (2d) 361 [95 Pac. (2d) 476].) The rule in the Griffey and Secreto cases seems to imply that if the order [175]is tantamount to an order specifying insufficiency of the evidence, and a new trial cannot be had as to the parties directly concerned in the motion without a consideration of all the evidence, a new trial may be had as an unlimited trial de novo in the interest of justice. We are not confronted with that situation here. Neither excessive nor inadequate damages are enumerated in the notice of motion for a new trial. No judgment for damages was ever rendered in this case against Souza.
A jury has determined that defendants Ewing and Bates are responsible in damages, but that Souza is not. We are not concerned as to the form of the Ewing-Bates order; that is, whether it conformed to the provisions of section 657. It may have been that the court concluded the damages were inadequate or excessive, or that Ewing and Bates were not liable for the injuries sustained by plaintiffs. No appeal has been taken from the Ewing-Bates order. Here we are confronted with a general order in a jury case granting a new trial on “all issues”. This is equivalent to an order simply stating “Motion granted.” If the opinions of the Supreme Court, which make no exception, are to be followed, this order should be reversed. (Read v. Pacific Elec. Ry. Co., 185 Cal. 520 [197 Pac. 791] ; Wilkinson v. United Railroads, 195 Cal. 185 [232 Pac. 131]; Biaggi v. Ramont, supra; Yoakum v. Hogan, supra; Condon v. Ansaldi, 203 Cal. 180 [263 Pac. 198] ; Parker v. Southern Pac. Co., 204 Cal. 609 [269 Pac. 622]; San Francisco v. Tillman Estate Co., 205 Cal. 651 [272 Pac. 585]; Baroni v. Rosenberg, 209 Cal. 4 [284 Pac. 1111] ; Sheets v. Southern Pac. Co., 212 Cal. 509 [299 Pac. 71] ; Phillips v. Powell, 210 Cal. 39 [290 Pac. 441] ; Fennessey v. Pacific Gas & Elec. Co., 10 Cal. (2d) 538 [76 Pac. (2d) 104].)
The position adopted by the Supreme Court with respect to the rule that the presumption is against the validity of such an order is further strengthened by legislative action in reference to future cases involving this question. (Stats. 1939, chap. 713.) Likewise this is not a case wherein it may be claimed that the intent of the trial judge may be ascertained when the order is made on all grounds stated in the notice of intention to move for a new trial wherein it was possible to ascertain that insufficiency of the evidence was one of such grounds, as in Lewis v. Southern California Edison Co., 116 Cal. App. 44 [2 Pac. (2d) 419]. In that case [176]the court specified the grounds by reference. The court held that it was not a general order. In this case no reference is made except to “all issues”, which is general and is the exact subject matter, and in the exact language, of section 657, which precludes a new trial upon the ground of insufficiency of the evidence unless the order so specifies. The exception to this rule is when the evidence is “without material conflict in any material point”.
The questions in this case are whether the accident was due solely to the negligence of Souza, or solely to the negligence of Audrey Bates in driving beyond the center line on the highway, or due to concurring negligence of both Souza and Bates. There is evidence in the record from which a jury would be justified in placing the liability upon defendant Bates and absolving defendant Souza; also evidence from which a jury could reasonably infer that liability could be placed upon defendant Souza; also evidence indicating concurring negligence of all defendants. There is evidence, irrespective of negligence on the part of defendants Bates and Ewing, from which a reasonable inference could be drawn absolving Souza from all liability. Without specifically relating the evidence indicating negligence on the part of defendants Bates and Souza, the transcript shows a material conflict of evidence. The weight of such evidence was a question of fact for the jury. No claim is made on appeal that plaintiffs were guilty of contributory negligence.
As I read the majority opinion, the affirmance of the order is predicated upon “interest of justice”, supported by several (to my mind) inapplicable citations. It may be that Bates and Ewing would be better protected should Souza be forced to reappear as a defendant in this action wherein “justice”, i. e., that he was not responsible for the accident, has already been determined by a jury. Justice demands that when a jury absolves one from liability in a trial fairly conducted, and without contention as herein of legal error, a defendant should not be harassed and annoyed by further litigation. In each of the cases cited in the majority opinion, there has been a departure from the clear mandate of the law makers, the interpretation in those cases tending to weaken the provisions of the code section that in a general order granting a new trial, it will be presumed “on appeal” that the order was not based on the ground of insufficiency of the evidence unless such ground is specifically stated in [177]the order. The establishment of the rule adopted in the majority opinion is the last judicial step necessary to nullify the specific provision of the section here considered; and this in face of the fact that the legislature subsequent to decisions above cited in the majority opinion has made this particular provision even more specific.
The only point urged on appeal is insufficiency of the evidence to sustain the verdict of the jury. Presumably, in the absence of any other error alleged in the motion for a new trial, none occurred. If the trial court intended to grant the motion on the ground of insufficiency of the evidence, an order in conformity with the direction of the legislature should have been made.
I conclude that the evidence is sufficient in fact and in law to sustain the verdict, and that there are material conflicts on material points which preclude the appellate court or the trial court from interfering with the verdict except by an express order granting the new trial upon the ground of the insufficiency of the evidence to sustain it.
The order appealed from, granting a new trial should be reversed.
A petition for a rehearing was denied on January 29, 1941. Ward, J., voted for a rehearing.
Appellant’s petition for a hearing by the Supreme Court was denied on February 24, 1941. Gibson, C. J., and Edmonds, J., voted for a hearing.