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Malkasian v. Irwin

California Court of Appeals, Fifth District
Feb 20, 1964
37 Cal. Rptr. 134 (Cal. Ct. App. 1964)

Opinion

McCormick, Barstow, Sheppard, Coyle & Best, Fresno, William B. Boone, Santa Rosa, for appellant.

James C. Janjigian, Fresno, for respondent.


RALPH M. BROWN, Justice.

Plaintiff brought this action for the wrongful death of her son. Upon a jury trial of the action, there was a general defense verdict. Following the judgment entered pursuant thereto, plaintiff sought a new trial on the grounds of insufficiency of the evidence, that the verdict was against the law, and prejudicial misconduct of defense counsel. The motion was granted and the minute order entered was general in nature. Defendant appeals from the order granting a new trial.

The accident occurred about 2:20 p. m. on November 27, 1957, on Highway 99 just south of Herndon Avenue about 9 miles north of the City of Fresno. A truck with a trailer attached was parked on a 10-foot-wide shoulder parallel to and approximately 6 feet from the traveled portion of the outer southbound land. A collision occurred between a Ford automobile being driven by defendant in a southerly direction in the outer lane and a Chevrolet automobile being driven by plaintiff's decedent, Michael Malkasian. A reasonable inference which clearly may be drawn from positive evidence is that the Chevrolet also collided with the rear end of the parked trailer, but there is a material conflict as to whether the Chevrolet-trailer collision occurred just before or just after the Ford-Chevrolet impact. Malkasian died without making any statement.

At the conclusion of oral arguments on the motion at a hearing held February 1, 1963, the trial judge's comments from the bench indicated his firm belief that the evidence was insufficient to support the verdict. He then ruled 'The matter will be taken under submission.' On the same day a minute order was entered reading, 'The motion for new trial is argued to the court by respective counsel, and submitted to the court for a ruling; and is by the Court taken under submission.'

A minute order, entered on February 4, 1963, reads in relevant part, as follows: 'IT IS ORDERED by the Court that plaintiff's motion for new trial be, and it is hereby, granted.'

Plaintiff's contention that the oral ruling made from the bench on February 1 should be treated as an order granting a new trial upon the ground of insufficiency of the evidence cannot be sustained. An oral order granting a new trial on this Pacific Home v. County of Los Angeles,

Adam v. Los Angeles Transit Lines, Miller v. Stein, Jalof v. Robbins, MacDermot v. Grant, King v. Superior Court,

Had that minute order specified that it was based upon the ground of insufficiency of the evidence, the order would be sustainable when measured by the applicable rules. In considering a motion made upon the ground of insufficiency of the evidence to support the verdict, the trial judge is entitled to weigh the evidence and the inferences to be drawn therefrom (Hawk v. City of Newport Beach, 46 Cal.2d 213, 219, 293 P.2d 48); and to judge the credibility of the witnesses (Yarrow v. State of California, 53 Cal.2d 427, 434, 2 Cal.Rptr. 137, 348 P.2d 687). He is not bound by conflicts in the evidence and 'not only has the right, but the duty, to grant a new trial if in his opinion the evidence does not warrant the judgment based on the jury's verdict.' (Pemberton v. Barber, 199 Cal.App.2d 534, 538, 18 Cal.Rptr. 784.) An appellate court will not reverse an order granting a new trial on this ground unless it can be said, as a matter of law, that there is no substantial evidence to support a contrary judgment. (Richardson v. Ham, 44 Cal.2d 772, 775, 385 P.2d 269; Williams v. Field Transportation Co., 28 Cal.2d 696, 698, 171 P.2d 722.) But this is not our case. The order under consideration is general in nature, silent as to the grounds upon which it is predicated. Therefore, on appeal it must be conclusively presumed that it was not based upon the ground of insufficiency of the evidence to justify the verdict. (Code Civ.Proc. § 657; Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 577, 12 Cal.Rptr. 257, 360 P.2d 897; Yarrow v. State of California, supra, 53 Cal.2d 427, 434, 2 Cal.Rptr. 137, 348 P.2d 687.)

The second ground specified in the motion for new trial is that the decision is against the law. At the hearing on the motion, in brief, and at the oral argument on appeal, plaintiff argued the sufficiency of the evidence. When a new trial has been granted on the ground that the verdict or decision is against the law because the evidence is insufficient to justify it, the more lenient rules above set out must yield to the stricter rules which then become applicable. As was stated in Jordan v. Warnke, 205 Cal.App.2d 621, at pages 634-635, 23 Cal.Rptr. 300 at page 308:

'In the absence of insufficiency of the evidence as a ground for granting a new trial, this court must follow the language of Aced v. Hobbs-Sesack Plumbing Co., supra, [55 Cal.2d 573, 12 Cal.Rptr. 257, 360 P.2d 897] appearing 55 Cal.2d at page 577, 12 Cal.Rptr. at page 259, 360 P.2d at page 899, to wit:

"If this provision is not complied with, the appellate court is precluded from considering insufficiency of the evidence as justification for the order unless the evidence is insufficient as a matter of law and is without conflict on any material point." (Jordan v. Talbot, 55 Cal.2d 597, 602, 12 Cal.Rptr. 488, 361 P.2d 20; Adams v. American President Lines, 23 Cal.2d 681, 683, 146 P.2d 1; Opp v. Sykes, 194 Cal.App.2d 208, 211, 15 Cal.Rptr. 1; 36 Cal.Jur.2d, New Trial, § 104, pp. 291-292; Witkin, California Procedure 1963 Supplement, § 34, p. 679.) In Kralyevich v. Magrini, 172 Cal.App.2d 784 at page 789, 342 P.2d 903, 906, it was stated:

'When a general verdict only is returned it can be said to be 'against law' only when it is unsupported by any substantial evidence, i. e., when the entire evidence is such as would justify a directed verdict against the party in whose favor the verdict is returned. '[T]he words 'against law' do not import a situation in which the court weighs conflicting evidence and merely finds a balance against the judgment.' [Citation.]'

When a new trial is granted on the ground that the verdict is against the law, the evidence must be viewed as it supports the judgment, not the order; and if there is substantial evidence to support the judgment, the granting of a new trial on this ground is unauthorized. (Thompson v. Guyer-Hays, 207 Cal.App.2d 366, 375, 24 Cal.Rptr. 461.) An order based on this ground cannot be sustained by merely showing that the verdict is unsupported by the evidence. (Hawkinson v. Oesdean, 61 Cal.App.2d 712, 716, 143 P.2d 967.)

Although this case was tried more than four years after the unfortunate accident and the testimony of the witnesses striving to recall a happening long past is fraught with conflicts and contradictions, the record discloses substantial evidence from which the jury could reasonably find, as it did, in favor of defendant.

The defendant testified that he was traveling south at a speed of about 40 miles per hour when he observed the Chevrolet automobile about 100 to 130 feet ahead; that it appeared to be 'bouncing off the truck and in a backward manner crosswise directly in front' of him; that it appeared to bounce over from the right hand side of the highway with its front end pointed at the truck at an angle; that it then settled to a stop in a crosswise position; that he applied his brakes but the right front of his Ford collided with the left rear of the Chevrolet; that his Ford then veered sharply to the left almost straight across the highway and the Chevrolet spun around in the direction of the parked truck.

The only other eyewitness, Gary Stillwell, testified that he was driving north. When he was some 300 feet south of the point of impact, he saw the Chevrolet hit the rear of the truck; that it bounced back and into the Ford; that there was an impact between the Ford and the Chevrolet and the Chevrolet spun around against the truck; that at the time of the impact the Chevrolet was moving backwards from the truck.

There was a material conflict in the testimony relating to the position at which the Chevrolet came to rest. Joe Legari, produced by plaintiff, testified that he did not see the accident but arrived a few minutes later, that he did not then observe the position of the Chevrolet in relation to the truck and trailer but that several bystanders swung it around to the position it was in when the officers arrived later. However, Mr. Stillwell further testified that he stopped his car at the scene of the accident and put out flares, that the Chevrolet was at rest alongside the trailer, pointing north, and that he did not observe any bystanders move it after the accident. Officer Hughes testified that he was one of the investigating officers, that the Chevrolet left broad sliding marks in a circular pattern when it spun around, and that those marks led to the rear tires of the Chevrolet in its at rest position.

From the evidence briefly recited above the jurors could well have concluded that the defendant was not negligent in that he did everything a reasonable man would have done under the same or similar circumstances; or that plaintiff's decedent first ran into the left rear of the trailer then bounced back onto the highway into the path of the oncoming Ford and thus was contributively at fault. In any event, we cannot say, as a matter of law that there was no substantial evidence to support the verdict.

In an effort to demonstrate that the verdict is 'against law,' plaintiff points to conflicts We turn to plaintiff's contention that the recital in the pretrial order to the effect that at the time of the accident the decedent 'was then and there driving and operating [his automobile] in a general southerly direction along and upon said U.S. Highway 99' constitutes an admission binding upon defendant, precluding him from introducing evidence at the trial concerning any directional movement of the Chevrolet other than that it was being driven southerly on the highway. It is argued that the pretrial order, unmodified and unamended, defines the issues and limits the admissibility of evidence to those issues. Even assuming that the pretrial order circumscribed the issue and foreclosed evidence other than that the decedent was driving in a general southerly direction, the argument still must fail. At the trial testimony was introduced without objection that the decedent's car was moving in a crosswise position from the outer southbound lane toward the inner lane of the highway. Defendant and Stillwell both so testified. By permitting evidence of the directional movement of the decedent's car immediately prior to the impact to be received, without objection, plaintiff must now be behalf to have enlarged the issue in that respect. It is the rule that 'A party cannot permit an issue to be litigated and on appeal escape the consequences by claiming that such issue was not pleaded' (Vaughn v. Jonas, 31 Cal.2d 586, 605, 191 P.2d 432, 444; Miller v. Peters, 37 Cal.2d 89, 93, 230 P.2d 803); the same rule is applicable to issues framed by a pretrial order (Collision v. Thomas, 55 Cal.2d 490, 498, 11 Cal.Rptr. 555, 360 P.2d 51); and it is applicable to an appeal from an order granting a motion for a new trial (Thompson v. Guyer-Hays, supra, 207 Cal.App.2d 366, 24 Cal.Rptr. 461).

The third ground specified in the motion is prejudicial misconduct of defense counsel in his summation to the jury. Since a new trial may be granted upon this ground (Code Civ.Proc. § 657, subd. 1; People v. Amer, 151 Cal. 303, 90 P. 698; Green v. County of Merced, 62 Cal.App.2d 570, 144 P.2d 874), the question for decision on this point is whether the broad discretion of the trial court was abused.

Defendant points out that plaintiff's counsel stood mute, making no objection, and that he failed to assign the language as misconduct or request that the jury be admonished to disregard it. Hence, it is claimed that he is estopped from raising the point on a motion for new trial. It is thoroughly established that conduct not objected to at the time of trial may not be raised on an appeal from a judgment. However, there is a contrariety in the decisional law as to whether the same rule governs on an appeal from an order granting a new trial. In at least two cases it was held that the failure of counsel to object to, or assign as misconduct, an improper statement made to the jury by his adversary (Murphy v. Zwieg, 100 Cal.App. 266, 269, 279 P. 1062) or the introduction of insurance into the case (Causey v. Cornelius, 164 Cal.App.2d 269, 273, 330 P.2d 468) constituted a waiver and foreclosed the question on appeal. On the other hand, cases holding that the doctrine of invited error does not restrict the power of the trial court to grant a new trial are Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 159, 323 P.2d 391, and cases there cited; Springer v. Sodestrom, 54 Cal.App.2d 704, 707, 129 P.2d 499; and Weaver v. Shell Oil Co. of California, 129 Cal.App. 232, 235, 18 P.2d 736. In Shaw, the Supreme Court stated:

'It has also been said that the power of the judge to do justice by ordering a new trial is not impaired even though the moving party is technically estopped to claim error or has waived his right to We adopt the view enunciated by the Supreme Court and hold that the failure to object to, or assign as misconduct, claimed improper argument of counsel is not deemed waived on a motion for new trial or on appeal from an order in favor of the movant, although a contrary rule is applicable to an appeal from a judgment.

Moving to the merits, during argument to the jury defendant's counsel stated:

'In my own heart I wonder about the sign that appears in one picture which says, entrance to a fruit stand, which appears in another picture, orange juice stand. You could speculate that perhaps the boy went in there for orange juice or to park in the large area that appears in the photos to check his tires. I don't know. You might decide that he decided to shoot out on finding the orange juice stand closed, to get up enough speed, that perhaps he was coming out on the highway looking back over his shoulder and never saw the truck. He may have gone to sleep. We don't know whether he worked the mid-watch the night before. You heard me ask his mother. He may have dropped a cigarette, but in my own heart, for reasons we will never know, this boy hit this truck before we hit him.'

In summing up to a jury, counsel are given a wide latitude and may indulge in all fair arguments in favor of their client's case (Johnston v. Key System Transit Lines, 167 Cal.App.2d 383, 387, 334 P.2d 243; Risley v. Lenwell, 129 Cal.App.2d 608, 659, 277 P.2d 897); and '* * * there is no rule of law which requires attorneys to be absolutely logical in their arguments.' (Miller v. Pacific Constructors, Inc., 68 Cal.App.2d 529, 551, 157 P.2d 57, 68.) An attorney may express his own opinion based upon fair deductions from the evidence or from reasonable inferences drawn therefrom. (Rogers v. Foppiano, 23 Cal.App.2d 87, 95, 72 P.2d 239.)

As has been briefly summarized above, there was direct evidence that, immediately before the impact, the decedent's Chevrolet moved backwards and in a crosswise position across the highway into the path of the defendant's automobile. The reason for this movement could never be known for Malkasian silently went to his death. Clearly the argument did not go to the main issue in the case, which was the directional movement of the decedent's automobile immediately prior to the collision, a fact which was in evidence, but merely called the attention of the jury to possible reasons for that fact. Therefore, the statements made by counsel were within the bounds of legitimate argument and did not constitute prejudicial misconduct.

We are mindful of the rule that the granting of a motion for a new trial rests within the broad discretion of the trial court, and its ruling will not be disturbed on an appeal unless an abuse of discretion is clearly shown. (Shaw v. Pacific Greyhound Lines, supra, 50 Cal.2d 153, 159, 323 P.2d 391; Myers v. J. H. Degnan, Inc., 205 Cal.App.2d 62, 66, 22 Cal.Rptr. 777.) But the discretion of the trial judge does not extend to the granting of a motion for new trial upon the ground of error which does not exist (Rosenberg v. Wittenborn, 178 Cal.App.2d 846, 850, 3 Cal.Rptr. 459; Mattina v. Conant, 177 Cal.App.2d 23, 27, 1 Cal.Rptr. 820).

Precluded from considering insufficiency of the evidence as a ground for the order, we have searched the trial record in vain for error warranting a new trial.

The order is reversed.

STONE, Acting P.J., concurs.

CONLEY, P.J., deeming himself disqualified, did not participate.


Summaries of

Malkasian v. Irwin

California Court of Appeals, Fifth District
Feb 20, 1964
37 Cal. Rptr. 134 (Cal. Ct. App. 1964)
Case details for

Malkasian v. Irwin

Case Details

Full title:Siranoush MALKASIAN, Plaintiff and Respondent, v. Ralph Carlisle IRWIN…

Court:California Court of Appeals, Fifth District

Date published: Feb 20, 1964

Citations

37 Cal. Rptr. 134 (Cal. Ct. App. 1964)

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Malkasian v. Irwin

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