Sangiacomo v. Beaumont Furnace & Sheet Metal Corp.

AGEE, J. This is an appeal by plaintiff and cross-defendants San Carlos Manufacturing Company and Heieek & Moran from an order made on December 5,1960, granting a new trial to defendant Beaumont Furnace and Sheet Metal Corporation on plaintiff’s complaint and its answer thereto and granting a new trial on Beaumont’s cross-complaint and the respective answers thereto of cross-defendants San Carlos Manufacturing Company and Heieek & Moran.

Plaintiff owned an apartment building which was damaged by a fire which his complaint alleges resulted from the negligent installation of a wall heater by defendant Beaumont Furnace and Sheet Metal Corporation and the defective and negligent manufacture of said heater by defendant San Carlos Manufacturing Company. Beaumont cross-complained against San Carlos and cross-defendant Heieek & Moran, the distributor, on the theory that, if the heater was defectively manufactured, Beaumont should be indemnified by them as against plaintiff’s claim.

The jury returned a verdict of $4,289.60 in favor of plaintiff as against Beaumont on the complaint, and a verdict in favor of San Carlos and Heieek & Moran on Beaumont’s cross-complaint. It would thus appear from the verdicts that the jury found that the heater had been negligently installed but not defectively manufactured.

Immediately following the return of the verdicts and the discharge of the jury, the following took place: “Mr. Levy [counsel for Beaumont] : If your Honor please, at this point we are going to ask for a judgment n.o.v. I would respectfully submit that it would be idle for me to reiterate the evidence which this Court has heard but I would respectfully submit that there should be a judgment n.o.v. entered in this instance in favor of Beaumont if based only upon one fact and say the total usage and continued usage of this equipment after inspection was five months during which, it was the honest opinion of all I would say with the exception of one, that if there was anything wrong that it should be discovered, and also due to the fact of tampering and lack of proof as evidenced by the City and the P. G. and E. The Court : The judgment n.o.v. is the abbreviation for judgment notwithstanding the verdict; is that what you mean by n.o.v. ? Mr. Levy: That’s correct. Non obstante veredicto. The Court : We call it notwithstanding the verdict. The judgment for n.o.v. or judgment notwithstanding the verdict is denied. [288]Mb. Levy.- We also would like an alternate motion if your Honor please, that being for judgment for indemnification over and against the cross-defendants.m I won’t labor the issue. The Coubt: That motion is denied. Mb. Levy: We will follow it with other motion in affidavit later, your Honor. The Coubt : Do you want a stay of execution ? Mb. Levy : Yes. A stay of execution if your Honor please. A stay of execution until ten days after the motion for a new trial'. The Coubt : You want a stay of execution. Execution stayed until ten days after the determination of the motion for new trial. Mb. Levy : Thank you, your Honor. ’ ’