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




Civ. 9238, 9355.

Decided: October 18, 1934

Edmund Scott, of Redwood City, and Hadsell, Sweet, Ingalls & Lamb and George F. Wright, all of San Francisco, for appellants. Ford & Johnson, of San Francisco, for respondents.

To recover damages for injuries sustained in an automobile accident, three different plaintiffs commenced three separate actions against the defendants. For the purposes of the trial the actions were consolidated. The jury returned a verdict in favor of the defendants. The plaintiffs moved for a new trial on all of the statutory grounds and the motion was granted by an order which, on its face, was general. The defendants appealed under section 953a of the Code of Civil Procedure. The plaintiffs made an ex parte application for, and the trial court made, a nunc pro tunc order changing the order theretofore entered. On its face the latter order purported to limit the order granting a new trial by basing it on the ground that the evidence was insufficient. The defendants moved to set aside the nunc pro tunc order. The motion was denied and the defendants appealed from that order and have brought up a bill of exceptions. The appeals have been consolidated; but to determine them it is necessary to take up first the appeal last mentioned.

Nunc Pro Tunc Order.

On May 11, 1933, the jury returned a verdict in favor of the defendants and against the plaintiffs. In due time the plaintiffs served a notice of intention to move for a new trial. It enumerated thirteen statutory grounds. On June 5 the motions came on for a hearing and thereafter were submitted on the same date. On the 3d day of July, the judge of the trial court indorsed on the submission tag, “New trial before another court granted.” On the same day the clerk of the court wrote out a formal minute entry in words and figures as follows:

“The motion for a new trial in the above-entitled causes having been heretofore submitted to the court for consideration and decision, and now the court having considered the same and being fully advised herein, renders the following decision:

“It is ordered that a new trial in the above entitled actions before another court be, and the same is hereby granted.”

On July 10 the defendants served and filed a notice of appeal from the order granting a new trial. At the same time they served and filed a notice to prepare the record. On the 14th of August, without notice to and in the absence of the defendants or their attorneys, the judge of the trial court signed a formal order, among other things, reciting: “It is hereby ordered that the order granting said motion be and the same is hereby amended nunc pro tunc reading: New trial before another court granted on the ground of insufficiency of the evidence to justify the verdict.” On August 17 the defendants served a notice of motion to vacate the order last mentioned. That notice recited that the motion would be based on the affidavit of Robert L. Lamb, a copy of which was attached to the notice. That affidavit recited that the written memorandum dated July 3, 1933, was in the handwriting of the trial judge. It also alleged that the clerk correctly entered the order made by the court in determining the motion for a new trial. Thereafter the motion of the defendants came on for hearing in open court on August 21, 1933. The defendants made their motion and introduced the affidavit of Mr. Lamb hereinafter mentioned. In reply to a question propounded by counsel the judge of the court stated that the memorandum dated July 3 was written and signed by him. He also stated that he did not include in the order all that he should have included at the time. Continuing, the court said: “* * * the order was made here in the handwriting of the court itself and it (sic) was really an oversight by the court in not including therein matters which it should have included, and it is not a correction, so much, of minutes made by the clerk * * * but that order does not set forth what the court had in mind and the grounds that the court had in mind when he made the order and I felt under the circumstances I had a right to correct it * * *.”

The foregoing facts clearly show that the purported nunc pro tunc order was an attempt to correct a judicial error and to make an order that was never in fact made. As stated by the trial judge in the nunc pro tunc order, he inserted “what the court had in mind and the grounds that the court had in mind when he made the order * * *,” but had failed to insert in the order made July 3. Such changes may not be made in that manner. In volume 1 of Freeman on Judgments, p. 248, the author states: “The failure of a court to act, or its incorrect action, can never authorize a nunc pro tunc entry. If a court does not render judgment, or renders one which is imperfect or improper, it has no power to remedy any of these errors or omissions by treating them as clerical misprisions. Omitted judicial action cannot be supplied.” In 42 C. J., at page 532, it is stated: “The authority to make an order nunc pro tunc cannot be used to amend or change an order actually made.” In Egan v. Egan, 90 Cal. 15, at page 21, 27 P. 22, 24, the court said: “It clearly appears in the present case that the matter contained in the amendment made by the order appealed from was not omitted from the judgment by reason of any neglect of the clerk in recording the same, but was intentionally excluded therefrom by the court itself at the time it rendered the judgment. If it should be admitted that the court ought to have included the provisions of this stipulation in its decree, its failure to do so was an error resulting either from a misconception of the law applicable to the facts before it, or from a failure to give sufficient consideration to those facts. In either case it was an error of law committed at the trial, which the defendant should have sought to remedy through her motion for a new trial.” That rule has since been followed by the courts of review in this state. It will not be controverted that a court has power to correct its record by nunc pro tunc orders of its own motion and without notice. However, that principle assumes that a clerical error was made in entering the order. Neither will it be contended that a court has not the inherent right to cause its record to speak the truth. But in the instant case it clearly appears that the record spoke the truth, the sole fact being that the trial judge did not say all that he had in his mind on the subject. The validity of a nunc pro tunc order does not rest on the recitals contained therein. In the instant case the attack is direct and is supported by a bill of exceptions. In Drinkhouse v. Van Ness, 202 Cal. 359, at page 369, 260 P. 869, 872, the court said: “If the order of May 8 were before us on an appeal on the judgment roll alone, the intendments and presumption of regularity, which lend support to judgments and orders of trial courts under review on appeal, would sustain it, but the matter is before us on a bill of exceptions. It is the contention of the intervener that when the lower court entered the order of May 1 granting a new trial, it exhausted its power to pass on the motion, and could not thereafter amend, revoke, modify, or otherwise disturb its judgment in that regard. The second order, that of May 8, it contends, was a nullity and in no wise affected the status of the case with respect to the first order which, in general terms, granted the motion for a new trial. The contention must be upheld.”

It follows that the nunc pro tunc order was invalid and that we must disregard it in considering the appeal of the defendants from the order granting to the plaintiffs a new trial.

Order Granting Motion for New Trial.

The action arose by reason of a collision in which the automobile in which the plaintiffs were riding collided with the rear end of a truck and trailer that were stalled on the highway. The accident occurred about three miles north of South San Francisco on the westerly side of the Bayshore highway. The truck and trailer were owned by the defendant corporation and were being operated by the defendant William Harris. On the trial it was the theory of the plaintiffs that between 9 o'clock and 11 o'clock at night the defendants left the truck and trailer stalled on the highway and that at the time of the accident it was wholly unlighted, unguarded, and unattended. On the other hand, it was the theory of the defendants that by reason of excessive heat generated in the operation thereof, that a certain pump attached to the motor became seized and that the effect was to stall the motor and prevent the truck and trailer from being moved until repairs could be made or until the truck and trailer could be pulled off the highway by tow cars. It was also the theory of the defendants that at all times the truck and trailer were equipped with all of the lights specified in the statute and that the same were continuously burning. The defendants cite section 657 of the Code of Civil Procedure and contend that as the order granting a new trial failed to specify that the new trial was granted upon the ground of insufficiency of the evidence, the order of the trial court can only be sustained where the verdict of the jury is against law, or there are errors of law which have resulted in a miscarriage of justice. Biaggi v. Ramont, 189 Cal. 675, 209 P. 892. In their brief the plaintiffs do not reply to the point so presented by the defendants; however, they contend that the negligence of the defendants was established by the evidence. In support of that contention they cite testimony given by some of their witnesses proving, or tending to prove, that contention. In reply the defendants claim that the witnesses for the plaintiff were not in a position to see and know the fact to which they testified. We think it is not necessary to state the testimony of the witnesses. It is sufficient to state that witnesses called by the defendants gave testimony that was in direct conflict with nearly all of the evidence produced by the plaintiffs. It is true that the evidence showed that the truck and trailer were left where the truck stalled for approximately two hours, but it is equally true that the driver during all that time was making strenuous efforts to get the truck and trailer moved from the spot either under the power of the truck or other means. Considering all of these matters we think it is quite clear that it may not be said the evidence was insufficient as a matter of law.

In their brief the defendants attempt to enumerate every adverse ruling made against the plaintiffs during the trial on the admission or rejection of evidence, and to show that no one of the rulings was prejudicially erroneous. Their showing seems to be sufficient. Moreover, in the plaintiffs' brief we find no reply to those contentions.

Much is said regarding what the trial court did in refusing some instructions, modifying some others, and in giving some instructions asked by the defendants. The car in which the plaintiffs were riding was driven by A. M. Dioze. The plaintiffs requested an instruction: “It is not a defense for the defendants, J. W. Silver Trucking Company, a corporation, and William Harris to prove concurring negligence on the part of the driver of the other automobile involved in the accident in question.” The trial court modified the instruction and gave it as follows: “It is not necessary for the defendants to prove that the driver Dioze was guilty of negligence. The important question is whether the defendants were or were not guilty of any negligence and if so, whether such negligence was an approximate cause of the accident.” (Italics ours.) The plaintiffs contend that as the defendants pleaded, and thereafter offered proof to show, that it was the negligence of Dioze and not the negligence of the defendants that caused the accident, therefore their requested instruction should not have been modified. The reason assigned is not sufficient to show prejudicial error. Nor do we find any force in the argument that the expression “* * * an approximate cause of the accident” should have been “the proximate cause of the accident.” One expression is practically synonymous with the other. When considered with all of the other instructions the attack has no merit.

The plaintiffs requested, and the trial court refused to give, the following instruction: “To escape the charge of being the sole cause of the accident, the test is not whether A. M. Dioze did all that was possible for him to do, such as seeing everything that was possible to see, but whether he acted with ordinary care and prudence under all the facts and circumstances.” On the trial it was the contention of the defendants that they were not guilty of negligence. It was also their contention that the accident occurred by reason of the negligence of A. M. Dioze. It is apparent, therefore, that as the trial court said in one of its instructions, “The important question is whether the defendants were or were not guilty of any negligence.” If not, the defendants were not liable–it was not necessary for them to continue and demonstrate that the accident was caused by A. M. Dioze or that it was an inevitable casualty.

The plaintiffs requested, and the trial court refused to give, the following instruction: “I charge you that plaintiffs are not guilty of contributory negligence as a matter of law simply because they did not discern an unknown danger at the very instant necessary to prevent an impending disaster.” We find no error in the ruling. Other instructions fully covered all that is material to the instant case in the instruction as requested.

The trial court commenced its instructions by making some general observations. True it is that they took the form of being instruction number I. In that instruction the trial court had occasion to speak of the driver of the car in which the plaintiffs were riding. He had not been made a party to the action. However, one sentence is as follows: “If Dioze was negligent that may or may not determine the rights as to the other defendants.” It is apparent that the word “other” should have been omitted. Nevertheless the insertion of the word could not have prejudiced the rights of the plaintiffs. Both during the trial and in the other instructions Mr. Dioze was constantly referred to as the driver of the Buick. At no place was he mentioned as, nor alleged to be, a defendant. Under these circumstances it cannot be assumed that the inadvertent use of the word “other” at all confused the jury. The exactly correct statement of the rule will be found in instruction XL. It follows that the trial court did not commit error in the giving, modifying, or refusing instructions to the prejudice of the plaintiffs. If we are correct in these views, and we think the record fully sustains us, the motion for a new trial should not have been granted and it was prejudicial error to grant it.

The nunc pro tunc order under attack in appeal No. 9355 is reversed, and the order granting a new trial under attack in appeal No. 9238 is reversed.


We concur: NOURSE, P. J.; SPENCE, J.