GREENMAN v. ROGERS

Reset A A Font size: Print

District Court of Appeal, Second District, Division 3, California.

GREENMAN et al. v. ROGERS et al.

Civ. 19510.

Decided: November 17, 1953

Parker, Stanbury, Reese & McGee, Los Angeles, for appellants. Joseph Lewis, Los Angeles, for respondents.

Appeal by defendants from an order granting a new trial to ‘Martin Greenman as Guardian Ad Litem of Benita Greenman only,’ in an action for damages for personal injuries.

The parties were involved in an automobile accident. Martin Greenman was driving one car, accompanied by his wife, and his nine year old daughter, Benita. They brought this action for damages for personal injuries against Lloyd Irwin Rogers, 17 years of age at the time of the accident, driver of the other car, and Lloyd Rogers and Jane Rogers, his parents. Defendants denied negligence, and pleaded contributory negligence and unavoidable accident. The trial was by jury. Verdict was for defendants. On plaintiffs' motion, the court granted a new trial to ‘Martin Greenman as Guardian Ad Litem of Benita Greenman only.’ The court did not specify the ground of the order.

The accident occurred at the intersection of Amherst, a north-south street, and Goshen, an east-west street, Avenues in Los Angeles in the late afternoon of June 17, 1951. It was daylight and visibility was clear. Both streets were narrow, Amherst 30 feet and Goshen 26 feet in width. Defendant Lloyd Irwin Rogers was driving north on Amherst; the Greenmans were traveling east on Goshen. A house on the southwest corner of the intersection obstructed the vision of the drivers during the last 100 feet of approach. Martin Greenman had slowed down to 10 to 15 miles an hour before reaching the intersection.

The first time Martin Greenman saw defendants' car, it was 100 feet or more from the intersection; and it was going about 35 to 40 miles an hour. Mrs. Greenman stated that when her husband made the stop, or had slowed down for the intersection, she saw defendants' automobile coming ‘half-way down the block’; and her husband proceeded to drive into the intersection. She estimated that defendant driver was traveling ‘over 25’ miles an hour. Mrs. Greenman said their car was ‘definitely’ in the intersection before defendants' automobile entered the intersection. The second time Martin Greenman saw defendants' car, it was about 15 feet from the intersection; at that time he was approximately 10 feet in the intersection and traveling not more than 15 miles an hour. Defendant driver stated that he did not see the Greenman car until it was 10 feet away. He did not testify as to who entered the intersection first.

Martin Greenman testified he was ‘just about stopped’ at the time of the impact. His wife first testified he had ‘stopped at the intersection’ before entering. Later she explained what she meant by ‘stopped,’—that he had slowed down so that he was barely moving when he applied the brakes. Defendant driver testified he was going approximately 25 miles an hour at the time of the impact.

Just before the collision, Martin Greenman ‘yanked’ his steering wheel to the left and the impact knocked his car slightly more to the left. The two cars came together corner to corner, defendants' left corner to the plaintiffs' right corner. They stopped side by side, the Greenman car slightly farther to the north than the other. The police located the point of impact as being 18 feet east of the west curb of Amherst and 5 feet north of the south curb of Goshen.

The rules which govern a reviewing court in the determination of an appeal from an order granting a new trial are so well known they need not be repeated. The order of the trial court will be reversed only when it can be said as a matter of law that there is not substantial evidence to support a contrary judgment. Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 307, 163 P.2d 689. Manifestly there was sufficient evidence to support a contrary verdict. The court may well have concluded that defendant driver violated section 550(a) of the Vehicle Code, which provides: ‘The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.’

Defendants assert ‘the order fails to grant a new trial to anyone.’ Every action must be prosecuted in the name of the real party in interest. An action should be brought in the name of the ward by the guardian and not in the name of the guardian. 20 Cal.Jur. 496, § 12; 13 Cal.Jur. 187, § 38. That Benita Greenman, rather than her guardian, Martin Greenman, should have been named as plaintiff by the court in its order for a new trial is well settled. Dixon v. Cardozo, 106 Cal. 506, 39 P. 857; Fox v. Minor, 32 Cal. 111; Alvez v. Toprahanian, 39 Cal.App.2d 126, 102 P.2d 566; Loock v. Pioneer Title Ins., etc., Co., 4 Cal.App.2d 245, 40 P.2d 526; Lindsey v. Superior Court, 100 Cal.App. 37, 40, 279 P. 837. However, courts look to the substance of things rather than to mere names. The reformed system of procedure was designed to enable courts of justice to brush aside technicalities affecting no substantial right and decide cases upon the merits. Alvez v. Toprahanian, 39 Cal.App.2d 126, 129, 102 P.2d 566; Lindsey v. Superior Court, 100 Cal.App. 37, 41, 279 P. 837.

The order granting a new trial to ‘Martin Greenman as Guardian Ad Litem of Benita Greenman only,’ designating the guardian as plaintiff instead of naming the ward as plaintiff, was manifestly not intended as a dismissal of the action as to Benita and should not be given that effect. Alvez v. Toprahanian, 39 Cal.App.2d 126, 129, 102 P.2d 566; Lindsey v. Superior Court, 100 Cal.App. 37, 40, 279 P. 837. The pleadings throughout, the verdict, and the judgment name Benita as plaintiff and real party in interest. Plainly the court intended that a new trial be granted only to Benita Greenman by Martin Greenman, her guardian. The order should be so construed. The wording of the order was obviously a clerical error and may be corrected by the court at any time. It does not appear that defendants have been misled or prejudiced, and the error complained of has not resulted in a miscarriage of justice. Therefore, the order may not be reversed. Const. art. VI, § 4 1/212. To hold otherwise would be to ignore matters of substance and give effect to the barest technicality. Krukow v. Silvius, 105 Cal.App. 724, 728, 288 P. 684.

Affirmed.

VALLÉE, Justice.

SHINN, P. J., and WOOD, J., concur.

Copied to clipboard