Moffitt v. Ford Motor Co.

SEAWELL, J. —

This is a motion to dismiss defendants’ appeal taken from an order granting a new trial. Said order was made after entry of a judgment of nonsuit in favor of defendants at the close of plaintiff’s opening statement to the jury. Plaintiff contends that said order is nonappealable. Section 963, subdivision 2, of the Code of Civil Procedure provides that an appeal may be taken from an order granting a new trial only “in an action or proceeding tried by a jury where such trial by jury is a matter of right”. Plaintiff’s action was brought to recover damages for per

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sonal injuries alleged to have resulted from the negligence of defendants, and hence was an action in which she was entitled to trial by jury as a matter of right. (Sec. 592, Code Civ. Proc.) Her argument upon this motion to dismiss is that an action or proceeding cannot be said to have been “tried by a jury” where the jury has returned no verdict, but the only determination made in the case is a judgment of nonsuit rendered by the court at the close of plaintiff’s opening statement.

Defendants’ contention is that an action is “tried by a jury” within the meaning of said section where proceedings are commenced before a jury impaneled and sworn to try the case, although the disposition thereof may involve the granting of a nonsuit or directed verdict because the evidence as a matter of law is insufficient to sustain a judgment for plaintiff, or the granting of a nonsuit upon plaintiff revealing the weakness of his case in his opening statement to the jury. We are of the view that

Estate of Baird,

195 Cal. 59 [231 Pac. 744, 746], relied upon by defendants, sustains their contention. In that case the trial court had. submitted issues raised upon a petition for partial distribution to the jury, which had returned a verdict for the petitioner. This court was of the view that the evidence as a matter of law required a decision against petitioner and that it would have been proper for the trial court to have granted a nonsuit or directed verdict against said petitioner. We therefore directed the trial court to enter judgment denying the petition for partial distribution. From the judgment entered in the trial court in pursuance of the order of this court, the trial court granted a new trial. In holding the order granting a new trial appealable this court said: