BAKER ET AL v. BERREMAN ET AL

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

BAKER ET AL. v. BERREMAN ET AL.

Civ. 12276.

Decided: April 21, 1943

Cooley, Crowley & Supple and Robert L. Lamb, all of San Francisco, for appellants. Felix Lauricella and George I. Hoffman, both of San Francisco, and T. B. Scott, of Modesto, for respondents.

Plaintiffs, the mother and father of John Ventura, deceased, brought this action to recover damages for the death of their son, which resulted from injuries sustained in a collision between the automobile he was driving and one driven by the defendant William Berreman. The accident happened and the action was brought in San Francisco. The trial took place before a jury, a verdict was rendered in defendants' favor, and judgment entered accordingly. Plaintiffs moved for a new trial; the motion was granted, and defendants appealed. The judge who heard and granted the motion was not the one who presided at the trial, the latter having died subsequent to the entry of the judgment in the action. Insufficiency of the evidence was not specified in the order as a ground for the granting of the new trial; but among the grounds urged in support of the motion therefor was “accident or surprise, which ordinary prudence could not have guarded against”, Code Civ.Proc. § 657(3), due to the fact that an eye–witness to the accident, an army lieutenant, who had arranged to be present at the trial, was the day the trial began transferred to another station, the whereabouts of which were a military secret, and he was therefore unable to testify; and the single issue to be determined on this appeal is whether it was error for the trial court to grant the motion on that ground.

It is well settled that the matter of granting or refusing to grant a motion for new trial is largely within the discretion of the trial judge to whom the motion is addressed, and that his order will not be disturbed on appeal in the absence of a clear showing of abuse. It is only in rare instances and upon strong grounds that his determination will be disturbed (2 Cal.Jur. pp. 905, 906; Owings v. Gatchell, 32 Cal.App.2d 482, 90 P.2d 368), and this is especially so when such discretion is exercised in awarding a new trial, Pettigrew v. O'Donnell, 32 Cal.App.2d 502, 90 P.2d 93; 20 Cal.Jur. p. 215. Every legal presumption is indulged in support of such an order (Gray v. Robinson, 33 Cal.App.2d 177, 91 P.2d 194; Cooney v. Furlong, 66 Cal. 520, 6 P. 388), for the reason that the order does not finally dispose of the case, but leaves it for retrial upon the merits. Bonner v. Los Angeles Examiner, 17 Cal.App.2d 458, 62 P.2d 427; Pettigrew v. O'Donnell, supra. Therefore, where it appears that there is a reasonable or even fairly debatable justification for the action taken by the trial court in granting a new trial, its ruling will not be disturbed even if as a question of first impression the appellate court might feel inclined to take a different view from that of the trial court as to the propriety of its action. Ogando v. Carquinez G. School Dist., 24 Cal.App.2d 567, 75 P.2d 641; Kehlor v. Satterlee, 37 Cal.App.2d 116, 98 P.2d 759. Furthermore, the governing rules above stated are not altered by the fact that the judge who heard the motion was not the judge who presided at the trial. Altschul v. Doyle, 48 Cal. 535. The law places him in the same position as the latter; he exercises identical rights and powers; and the same presumptions must be indulged in support of his action in passing upon the motion. Churchill v. Flournoy, 127 Cal. 355, 59 P. 791; Hausmann v. Sutter Street Ry. Co., 139 Cal. 174, 72 P. 905.

In view of the foregoing rules, it is our opinion that the record here presents no showing of an abuse of discretion by the trial court in granting the new trial which would justify a reversal of its order by this court. Among the facts shown by the affidavits filed in support of the motion and on which the trial court based its decision are the following: The cause was first set for trial on October 22, 1941. On October 10, 1941, plaintiffs' attorney delivered subpoenas to a process server for service on plaintiffs' witnesses, one of whom was Jack Burness, a resident of San Francisco. On October 16 the process server reported to plaintiffs' attorney that he was unable to serve the subpoena addressed to Burness for the reason that Burness had been inducted into the U.S. Army. The attorney immediately communicated with Burness' mother and was informed that Burness was stationed at Camp Roberts in San Luis Obispo County. Thereupon the attorney sent Burness a telegram asking him to be present at the trial, and Burness replied that he had arranged with his commanding officer to be excused from camp so that he might attend the trial and testify. On October 22, due to the congestion of the superior court calendar and at the request of the secretary of the court, the trial of the action was indefinitely postponed. On October 23 plaintiffs' attorney advised Burness by letter of the postponement and that he would notify him of the date of the trial when it was definitely settled. Thereafter counsel for both sides stipulated that the trial date be set for November 13; and Burness was so notified. On November 10 the secretary of the court again advised counsel that the matter would again have to be put over, and Burness was so notified by telegram and by letter. Meanwhile Burness had come to San Francisco and told plaintiffs' attorney that being a lieutenant it would be an easy matter for him to get leave to attend court and testify when the date of the trial was finally set. On December 30 Burness was still at Camp Roberts, and the date of trial had not yet been set, so the attorney by letter suggested that when the trial date was set Burness should come to San Francisco by plane. The next day, before Burness could reply, the secretary of the superior court informed plaintiffs' attorney that the matter would have to go to trial Monday, January 5, 1942, and the attorney telegraphed Burness to be present on that day. On Saturday, January 3, Burness telegraphed the attorney that he would not be present; and the attorney then sent Burness a telegram asking when he could appear, so that the trial might proceed on Monday and a continuance requested until Burness could appear. Burness' reply was not received until Monday, January 5, 1942, and the trial had already begun. In his letter Burness stated that he expected a change of station and his plans were indefinite. That night said attorney tried to reach Burness at Camp Roberts by phone, but was informed by the commanding officer that Burness had been transferred that day and that his whereabouts were a military secret. Thereafter said attorney kept in daily touch with Burness' mother to obtain information as to Burness' whereabouts, but up to the end of the trial she was unable to furnish any information as to his whereabouts. The trial ended on January 8, 1942, without plaintiffs having the benefit of Burness' testimony. As stated, the jury returned a verdict in defendants' favor, and judgment was entered accordingly.

Defendants contend that in order to establish a claim of accident or surprise the moving party must show that there was no lack of diligence in producing the evidence; and they argue that here plaintiffs' attorney, knowing that Burness was in the army, should have taken his deposition, or that when he learned that Burness would not be able to be present at the trial he should have asked for a continuance. But as stated in Heintz v. Cooper, 104 Cal. 668, 38 P. 511, and again in Brannock v. Bromley, 30 Cal.App.2d 516, 86 P.2d 1062, 1066: “ ‘Diligence’ is a relative term incapable of exact definition. What would amount to due diligence under one state of facts would fall absolutely short of it under another and different state of facts. It depends, therefore, so essentially upon the particular circumstances of each case, with all their distinct and varying phases and bearings, as they have appeared to the lower court at the trial and throughout the conduct of the cause, in determining whether diligence has been used in any particular instance, that this court should hesitate to disturb a ruling upon this ground where it has any substance whatever upon which to rest. The presumption is that the discretion has been properly exercised, and that presumption must be overcome by a clear want of facts before the order will be disturbed.” Taking into consideration all of the circumstances here shown by the record, it cannot be said that the trial court was unwarranted in holding there was no lack of diligence on the part of plaintiffs. Up to the Saturday prior to the commencement of the trial on the following Monday, plaintiffs had definite assurance that Burness would be present at the trial to testify, and it was then impossible to procure his deposition for use at the trial. And it is quite obvious that it would have been futile to move for a continuance for the reason that plaintiffs did not know, and therefore could give the trial court no assurance as to when, if ever, they would be able to produce Burness as a witness at the trial or take his deposition. In those circumstances the fact that plaintiffs did not move for a continuance did not, as a matter of law, operate as a waiver of their right to move for a new trial upon the ground of surprise which ordinary prudence could not have guarded against, nor preclude the trial court from exercising its discretionary power to grant such relief. Laverne v. Dold, 17 Cal.App.2d 180, 61 P.2d 497; Whitfield v. Debrincat, 18 Cal.App.2d 730, 64 P.2d 960; Rodriguez v. Comstock, 24 Cal. 85.

Defendants also contend as an additional reason why a new trial should not have been granted is that Burness' testimony would have been merely cumulative and therefore would not have presented any different case to the jury. There is no merit in the point. While it appears from the affidavit subsequently procured from Burness that his testimony would in many respects be the same as that given by the only other two eye–witnesses to the accident, namely, Berreman, the defendant, and Allemany, who was riding with the deceased, it further appears, as plaintiffs contend, that on many vital points Burness' testimony would have supplied facts not covered by the testimony of the defendant. Moreover, as contended by plaintiffs, Burness and Allemany viewed the accident from entirely different angles, and it may be reasonably inferred that Burness would have been much more effective as a witness than Allemany, who was a close friend of the deceased and admitted he had been drinking before the accident, and who was illiterate and afflicted with a nervous disorder.

As supporting plaintiffs' contentions the record shows the following: The accident happened about 2:30 a. m. on a rainy night at the intersection of Fremont and Mission Streets in San Francisco. Berreman was travelling north on Fremont Street, and testified that at the time of the impact he was travelling at a speed of from 15 to 18 miles an hour; that he did not know in what direction deceased's car was travelling; that he did not even see an automobile when he drove into the intersection, nor did he know what portion of deceased's car he hit; that just before the collision he saw “a light object” in front of him but did not even know it was an automobile, nor in which direction it was travelling. Burness' affidavit shows that he would testify that he also was travelling north on Fremont Street, at about 20 miles an hour; that about three–quarters of a block from Mission Street defendant passed him, obviously travelling in excess of 20 miles an hour; that defendant did not slow down, nor did he swerve to the right or left, but maintained the same line of travel up to the very point of impact; that as Burness approached the intersection he saw a light colored coupe enter the intersection from the right; that it was not travelling fast; that it entered ahead of defendant, and was struck squarely in the middle of its left side in the center of the intersection and spun around once or twice. Thus it is obvious that Burness' testimony would not be cumulative insofar as that given by the defendant was concerned. Allemany testified that the deceased's automobile in which he was riding approached the intersection from defendant's right and entered it ahead of defendant's automobile; that defendant was travelling about 30 or 40 miles an hour; that the lights on deceased's car were on; that there was a “bump” and deceased's car spun around and deceased was thrown out into the street. Plaintiffs argue, therefore, that the jury must have disregarded Allemany's testimony, or not believed him; whereas a proper presentation of the facts, by a young army officer who was a disinterested witness, would have probably brought about a different result. In any event, the rule is that even if the evidence is cumulative, the court is not thereby precluded from granting a new trial; that “The question before the trial court, even where the newly discovered evidence is simply cumulative, is whether if such evidence had been presented on the trial of the cause it would probably have produced a different result. The determination of that question is peculiarly within the province of the trial court. It is a matter addressed wholly to its discretion, and as a general proposition, whether its ruling is favorable or unfavorable on a motion for new trial based on newly discovered evidence which appears to be merely cumulative, that discretion will not be reviewed except for manifest abuse. * * * What the probable effect of this evidence would have been if presented to the jury upon the trial of the cause was a matter for the trial court to determine, and in granting such new trial it necessarily concluded that, had this evidence been presented to the jury in the first instance, the trial might have had a different result. It would not have granted it on such ground unless it so concluded.” Cahill v. E. B. & A. L. Stone Co., 167 Cal. 126, 138 P. 712, 715. And where it is doubtful whether the evidence is cumulative, it then becomes a matter of discretion; and unless there has been a manifest abuse of it by the trial court, a reviewing court will not interfere. Brannock v. Bromley, supra, citing Kenezleber v. Wahl, 92 Cal. 202, 28 P. 225; see, also, Oberlander v. Fixen & Co., 129 Cal. 690, 62 P. 254. It is our conclusion that such interference in the present case would be unwarranted.

The order appealed from is affirmed.

KNIGHT, Justice.

PETERS, P. J., and WARD, J., concurred.