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District Court of Appeal, First District, Division 1, California.


Civ. 12208.

Decided: February 04, 1943

Cyril Appel, Ivores R. Dains, George Liebermann, and George E. Baglin, all of San Francisco, for appellants. George Olshausen and John K. Hagopian, both of San Francisco, for respondents.

Defendant appeals from an order granting plaintiffs' motion for a new trial. The action is one brought by plaintiffs, husband and wife, for personal injuries alleged to have been received by the wife as a result of the negligence of defendant. The jury rendered its verdict in favor of defendant.

Plaintiffs testified that they lived at Market and Octavia Streets in San Francisco; that on the evening of February 21, 1941, they left their home at about 7:15 p.m. to visit the home of the husband's mother on Divisadero Street; that at Haight and Octavia Streets they boarded a No. 17 car operated by defendant; that Mr. Dempsey told his wife to go to the front of the streetcar; that Mrs. Dempsey proceeded to walk through the car while her husband was paying the fare; that while this was occurring the streetcar was proceeding up the Haight Street hill toward Laguna Street. Mrs. Dempsey testified that it was her intention to proceed to the front platform of the streetcar and stand on the left of the front platform; that as she was in the act of stepping down upon the lowered platform the car stopped with a sudden jerk, partially throwing her down; that this occurred while she had her right foot poised in the air preparatory to making the downward step; that she had her left hand on the stanchion located at the back end of the front platform; that she fell onto her knee and grabbed the iron railing which surrounds the motorman; that the curtain behind the motorman was down. She described the jerk of the car that caused her to fall as a “violent” jerk that threw her forward on her foot and twisted it. Mr. Dempsey corroborated his wife as to the facts above described, and testified that the car seemed to “grab” as it was coming to a stop at Laguna Street; that the car stopped “with a sudden jerk”; that he was about three feet behind his wife; that he was carrying a suitcase; that the jerk was so violent that it caused him to bump against the bar in the front of the car so that he dented the suitcase. When asked to describe what he observed when his wife fell down he testified: “Well, the sudden jerk of the car––I will tell you what it felt like to me––I was torpedoed during the last war, and that is just the way it felt––a sudden jar like would throw anybody off their feet.” Both plaintiffs testified that after Mrs. Dempsey fell Mr. Dempsey helped her to her feet, and they stood on the front platform until they reached Divisadero Street, some eight blocks from where the accident occurred, where Mr. Dempsey helped his wife to alight. The plaintiffs proceeded to the home of Mr. Dempsey's mother, where they discovered that Mrs. Dempsey had a badly swollen foot. They taped the foot and returned to their home by taxicab, Mrs. Dempsey suffering severe pain. Subsequently it was discovered that a small bone in the right foot was broken, and this action was instituted for the damages so caused.

Both plaintiffs admitted that they did not notify or complain to the conductor or motorman of the streetcar at the time of the injury. The accident happened on a Friday evening. Mr. Dempsey testified that on Saturday morning, after his wife had spent the night in discomfort and pain, he telephoned the carbarn of defendant that houses the No. 17 car, but was told that they had no information concerning the accident; that he then went out to the carbarn and was told that he must report the accident at the Sutter Street office of the company; that Saturday afternoon he called at that office but no one was there; that he again visited the office Monday morning at 9:15 a.m. and reported the accident. No evidence refuting the telephone and personal call at the carbarn, or the Saturday call at the office, was offered by defendant, and it was admitted the accident was reported on Monday morning.

Other than medical testimony, the defendant produced five witnesses. Its dispatcher Davis testified concerning the car schedules on the Haight Street line. He testified that a streetcar (Run 19, Mysing, motorman, Christopher, conductor) was due at Laguna and Haight Streets on February 21, 1941, at 7:28 p.m.; that another car (Run 14, Roach, motorman, Hefferman, conductor) was due there at 7:41 1/2 p.m. on that evening. Those four employees testified that they had no knowledge of anyone being thrown to the floors of their respective cars at the time and place testified to by plaintiffs, and that no one had complained to them at that time and place. It should be noted that they did not testify that the cars on which they were working did not come to a sudden or violent stop at Haight and Laguna Streets on the night in question.

From this brief summary of the evidence it is obvious that if the jury had brought in its verdict in favor of plaintiffs, such verdict would find ample support in the evidence. Defendant argues that, as a matter of law, no cause of action was proved for the reason that no unusual movement of the car was shown. The contention approaches the frivolous. While it is true that a certain amount of lurching and jerking is inevitable in the lawful operation of a streetcar (Starr v. Los Angeles Ry. Corp., 187 Cal. 270, 201 P. 599; Elliott v. Market Street Ry. Co., 4 Cal.App.2d 292, 40 P.2d 547), a passenger is not required, as a matter of law, to anticipate a “sudden,” or “violent” jerk that has sufficient force to throw her to the floor. On such evidence the jury would be justified in finding that the streetcar was operated in a negligent fashion.

After the jury had returned its verdict in favor of defendant, plaintiffs moved for a new trial on the grounds of insufficiency of the evidence, that the verdict was against the law, and error in law occurring at the trial. By an order duly entered in the minutes within the time prescribed by law the trial court granted the motion for a new trial, on the following grounds: “1. Insufficiency of the evidence to justify the verdict; 2. Error in law occurring at the trial and excepted to by plaintiffs.” If this minute order properly granted a new trial on the ground of insufficiency of the evidence, the evidence being sufficient to support a verdict for plaintiffs, the present appeal is without merit. Defendant contends that, because of the provisions of section 657 of the Code of Civil Procedure as amended in 1939, Stats. of 1939, chap. 713, p. 2234, this court must conclusively presume that the order was not granted on that ground. That section, so far as pertinent here, reads: “When a new trial is granted, on all or part of the issues, upon the ground of the insufficiency of the evidence to sustain the verdict or decision, the order shall so specify this in writing and shall be filed with the clerk within ten days after the motion is granted; otherwise, on appeal from such order it will be conclusively presumed that the order was not based upon that ground. The court may direct a party to prepare the order.” (Italics added.) The question presented is whether a minute order of the type above quoted duly entered in the minutes, specifying insufficiency of the evidence, complies with the requirement that “the order shall so specify this in writing and shall be filed with the clerk.” Note that the section does not require the judge to sign the order. If the order does not comply with the section, because of the statutory mandate, we will be forced to conclusively presume something contrary to the actual fact––that is, we will be forced by the statute to conclusively presume that the order was not based on insufficiency of the evidence even though it is admitted it was so based. In support of its contention that the order does not comply with the section, appellant places its main reliance on the case of Whitley v. Superior Court, 18 Cal.2d 75, 113 P.2d 449, decided by the Supreme Court in May of 1941. In that case, on the same day that a new trial was granted, a minute entry specifying insufficiency of the evidence was made. After more than ten days had elapsed, nunc pro tunc orders were signed by the judge and filed, granting a new trial on the same ground. The petitioner sought by certiorari to annul these last orders. The precise point decided by the Supreme Court was that the nunc pro tunc orders were void––a point not involved in the instant case. In the course of its opinion, however, the Supreme Court also discussed the validity of the minute entry in view of the 1939 amendment to section 657 of the Code of Civil Procedure––the precise point involved in the instant case. In one brief paragraph the court held that the minute entry did not comply with the amended section, stating (18 Cal.2d at page 81, 113 P.2d at page 453): “The entry of the minute order on May 28, 1940, did not satisfy the requirement that a written order specifying the insufficiency of the evidence be filed within ten days after the motion is granted. The entry which the clerk makes in his records is a synopsis merely of the court's order, tantamount to a history of it (18 Cal.Jur. 663; Bailey v. Superior Court, 215 Cal. 548, 11 P.2d 865), and before the amendment of 1939, this record clearly was sufficient compliance with the provisions of section 657, subdivision 7 (Pol.Code, sec. 4178, subd. 3). Again referring to Thomas v. Driscoll, supra [42 Cal.App.2d 23, at page 26, 108 P.2d 43, at page 45], we find the following analysis of legislative intent as indicated by the change in the statutory language: ‘* * * Unless something more than a mere minute entry is required that part of the amendment providing for a written order is meaningless. That the order should be written and “filed with the clerk” is definitely intended is manifest from the provision that “the court may direct a party to prepare the order”. Since the legislature could not have intended that a party should prepare a minute entry, and since the order “shall be filed with the clerk” it is clear that the amendment requires an order in writing other than a minute entry by the clerk.’ ”

If this paragraph correctly interprets the amended section, or if this court is bound by that decision, then the present order must be conclusively presumed not to have been granted on the ground of insufficiency of the evidence.

Plaintiffs argue that the Whitley case does not correctly interpret the amended section, that the quoted language was dicta and is not binding on this court. They also contend that more recent decisions have overruled the quoted portion of the Whitley case. The main case relied upon by plaintiffs is Cox v. Tyrone Power Enterprises, 49 Cal.App.2d 383, 121 P.2d 829, decided by the District Court of Appeal, Second District, Division Three, in January of 1942. In that case the precise point involved on the present appeal––namely, whether an order entered in the minutes within the ten–day limit complies with the amended section––was presented. The court exhaustively analyzed the history, purpose and language of the 1939 amendment and concluded that the requirements of the amendment are satisfied by a minute order specifying insufficiency of the evidence. The holding of the court on this issue covers nine pages of the opinion, and need not be quoted herein. See 49 Cal.App.2d at pages 391 to 400, 121 P.2d 829. The court considered and set forth in its opinion the language above quoted from Thomas v. Driscoll, supra, and Whitley v. Superior Court, supra, and held that what was there said, was dicta. For the reasons set forth at length in the Cox opinion it is apparent that the conclusion reached by the appellate court, when the history, purpose and language of the amendment are carefully considered, correctly interprets the 1939 amendment.

A petition for hearing by the Supreme Court was filed in the Cox case. An examination of that petition discloses that one of the main points urged was that the Cox case had interpreted the 1939 amendment contrary to the interpretation given the amendment by the Supreme Court in the Whitley case. In spite of that fact, and, although the Cox opinion shows on its face that the appellate court refused to follow the Whitley case, and shows further that the appellate court held that what it characterized as the “dicta” of the Whitley case incorrectly interpreted the amendment, the Supreme Court, without a dissenting vote, denied the petition for hearing on March 27, 1942.

Subsequent to the decision of the appellate court in the Cox case, the same court, in Gossman v. Gossman, 52 Cal.App.2d 184, 188, 126 P.2d 178, 181, relying on the Cox case, in discussing a minute order granting a new trial on the ground of insufficiency of the evidence similar to the one involved in the instant case, held: “Such order was by minute entry timely entered, and recited that ‘motion for new trial is granted on the grounds of insufficiency of the evidence and errors of law made during the trial. * * *’ This order, so entered in the minutes, meets the requirements of Code of Civil Procedure, section 657, as amended in 1939.” Again a petition for hearing was filed, and again the Supreme Court, without a dissenting vote, on July 20, 1942, denied the petition.

In August of 1942, the same court, in Bank of America v. Moore & Harrah, 54 Cal.App.2d 37, 128 P.2d 623, relying on the Cox case, in interpreting section 583 of the Code of Civil Procedure which permits the dismissal of an action not brought to trial within five years from the date of its filing “except where the parties have stipulated in writing” that the time shall be extended, held that a “stipulation entered in the minutes of the court is a stipulation in writing.” 54 Cal.App.2d at page 43, 128 P.2d at page 626.

It is our conclusion from these facts that whatever was said in the Whitley case on the point under discussion is no longer the law of the state, and that the Supreme Court has held that the law as stated in the Cox case correctly interprets the section in question. This court, under principles of stare decisis, should follow the Cox case.

In view of the conclusion that the trial court properly granted the new trial on the insufficiency of the evidence, it is unnecessary to discuss respondents' further contention that there were errors in law that likewise justified the order.

The order appealed from is affirmed.

PETERS, Presiding Justice.

KNIGHT and WARD, JJ., concurred.