Weaver v. Shell Oil Co. of California

SPENCE, J.

Plaintiffs sought damages for the death of Lincoln Weaver, deceased, alleged to have been caused by the negligence of defendants. Deceased was employed in a filling station owned by his employer, the Pacific Gas and Electric Company, and his death resulted from a gasoline explosion on the premises of his employer while defendants were making a delivery of gasoline thereto. Notice of the pendency of this action was given to the employer under section 26 of the Workmen’s Compensation, Insurance and Safety Act. The jury returned a verdict in favor of plaintiffs in the sum of $35,000. Defendants made a motion for new trial, which motion was granted in general terms without specifying the grounds upon which it was granted. From the order granting the new trial, plaintiffs appeal.

At the outset we may state that appellants’ opening brief is inadequate to show error in the order granting the new trial. It is well settled that upon an appeal from an order granting a new trial, the presumption is.in favor of the order and against the verdict

(Wulbern

v.

Gilroy Express,

116 Cal. App. 222 [2 Pac. (2d) 508];

Scott

v.

Southern Pac. Co.,

100 Cal. App. 634 [280 Pac. 996];

Roberts

v.

Southern Pac. Co.,

54 Cal. App. 315 [201 Pac. 958];

Marr

v.

Whistler,

49 Cal. App. 364 [193 Pac. 600]; 2 Cal. Jur. 887), and the order will be affirmed if it may be sustained on any ground.

(Tasker

v.

Cochrane,

94 Cal. App. 361 [271 Pac. 503]; 2 Cal. Jur. 891.) In the present case twelve grounds were specified in the motion for new trial and said motion was supported by affidavit. The argument in the opening brief is confined to four headings selected by appellants from the numerous possible grounds upon which the order may have been granted while other grounds are ignored. None of the evidence is printed therein and no reference is made to alleged errors in the admission and rejection of evidence other than a bald statement that “there were no errors on the part of the court in ruling upon the admission or rejection of evidence”.