Quinn v. Oil Fields Trucking Co.

McCOMB, J. On January 8, 1953, two complaints were filed in the superior court of Los Angeles County. Action No. 608112, was brought by the heirs of Gladys Irene Quinn, deceased, for wrongful death, by John Stanley Quinn, a minor, by his guardian ad litem, Winnie Waff or d Quinn, for personal injuries, and by Winnie Wafford Quinn for property damage. The complaint in action No. 608113, was brought by the heirs of Maria Olmeda, deceased, for wrongful death. Thereafter the cases were consolidated for trial and a verdict returned in favor of defendants in each case. •

On May 21, 1954, orders were made granting new trials in the two actions on all the issues upon the grounds of the insufficiency of the evidence. Defendants have appealed from the orders granting the motions for new trials. By stipulation of the respective parties the appeals are submitted in this court on one set of briefs.

Question: Was there substantial evidence to support the trial court’s finding of the insufficiency of the evidence to sustain the jury’s verdicts?

Yes. These rules are here pertinent:

(1) The granting of a motion for a new trial rests so completely within the discretion of the trial judge that an appellate court will not interfere with his action unless a manifest and unmistakable abuse of discretion clearly appears. (Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 358 [1] [170 P.2d 465].)

(2) On appeal from an order granting a new trial all presumptions are in favor of the order and it will be affirmed if sustained on any ground. (Ballard v. Pacific Greyhound Lines, supra, 358 [2].)

(3) A trial court in considering a motion for a new trial is not bound by a conflict in the evidence and does not abuse its discretion in granting a new trial where there is any evidence which would support the moving parties’ contention. (Ballard y. Pacific Greyhound Lines, supra, 358 [3].)

(4) Even where the evidence is not conflicting and all the presumptions seem to be in favor of one or the other of the parties litigant, the question of the probative force or the evidentiary value of the testimony is nevertheless within the determination of the trial court in a proceeding on a motion for a new trial. (Malloway v. Hughes, 125 Cal.App. 573, 580 [2] [13 P.2d 1062], hearing denied by the Supreme Court.)

(5) It is the duty of the trial judge to set aside a verdict in the exercise of sound discretion if he is of the [723]