KREBS v. LOS ANGELES RY CORPORATION

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District Court of Appeal, Second District, Division 2, California.

KREBS et al. v. LOS ANGELES RY. CORPORATION.*

Civ. 10723.

Decided: February 24, 1936

A. Brigham Rose and Paul Angelilo, both of Los Angeles, for appellants. Gibson, Dunn & Crutcher, of Los Angeles, for respondent.

This is an appeal by the plaintiffs from an order granting a new trial in an action wherein husband and wife sued as joint plaintiffs for damages sustained by each individually in separate counts. After a trial of several days' duration a jury returned its verdict for the plaintiffs and assessed damages as follows: $10,000 to the wife; $2,000 to the husband. Judgment was entered accordingly. Thereafter, upon motion of the defendant for a new trial, the court made the following order: “Matter heretofore submitted, it is now ordered that the defendant's motion for a new trial will be granted on the ground of excessive damages, unless within ten days the plaintiffs remit $7,500 in writing, and upon the filing of said remission the motion will be denied.” The plaintiffs failed and refused to remit $7,500 in writing within the ten-day period, and thereupon the order granting a new trial became effective.

In an action of this character where the evidence as to the nature and extent of plaintiffs' injuries is conflicting and the trial court feels that the damages awarded are so excessive as to indicate that they have been given under the influence of passion or prejudice, it is not only the right but the duty of the court to grant a new trial, or it may in its sound discretion make an order such as set forth above. In such case every intendment in favor of the validity of the order must be indulged and the order affirmed, unless it plainly appears that in entering the order the trial court abused the wide discretion vested in it in passing upon a motion for a new trial.

The plaintiffs contend, however, that the order granting a new trial was based upon the solitary ground of excessive damages to the wife. This contention cannot be sustained for the reason that the order does not limit the damages which it refers to as excessive to the wife alone, neither does it limit the degree of the excessiveness, and the presumption must be indulged that the order was made on the ground of excessive damages to the husband as well as the wife and that the damages were so excessive as to indicate that they were given under the influence of passion or prejudice.

The plaintiffs' next contention is that the order was erroneous for the reason that the sum to be remitted was in excess of the damages awarded to the husband. We see no merit to this contention. The court was authorized to grant the motion for a new trial without condition. It made a condition for the benefit of plaintiffs which the plaintiffs at their option were privileged to accept. They refused to accept the option, and they may not now complain merely because they did not accept an option which was included for their benefit.

The plaintiffs next complain because the order was made upon the ground that the sum awarded was “too high.” That, however, was not the ground upon which the order was made, but was merely oral talk which was not a part of the order.

Finally, the plaintiffs complain because the court “evinced a prejudicial attitude throughout the trial and prognosticated before verdict by jury that a new trial would be granted in the event of a verdict for the plaintiffs.” It may be that the trial court evinced a prejudicial attitude throughout the trial, but apparently it did not prejudice the plaintiffs in the eyes of the jury, which returned a verdict totaling $12,000. It did not indicate prejudice for the judge to say after the case had been submitted to the jury, but not in the presence of the jury, that a new trial would be granted in the event of a verdict for the plaintiffs. If, indeed, the court was prejudiced against the plaintiffs, which we do not hold, and the prejudice resulted in reversible error, then plaintiffs would be entitled to a new trial before a judge who was not prejudiced; but the order appealed from already gives them a new trial.

Order affirmed.

CRAIL, Presiding Justice.

We concur: WOOD, J.; GOULD, Justice pro tem.

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