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District Court of Appeal, Third District, California.


Civ. 7357.

Decided: July 28, 1947

Van Dyke & Harris, of Sacramento, for respondents. Yale S. Kroloff and Charles Koler, both of Stockton, for appellant.

This is an appeal from an order granting plaintiffs a new trial under the provisions of subdivision 3 of section 657 of the Code of Civil Procedure, to wit, accident or surprise which ordinary prudence could not have guarded against, caused by the non-appearance of a witness subpoenaed and relied upon by plaintiffs as a rebuttal witness. In support of their motion for a new trial plaintiffs filed five affidavits, while defendant filed two. From these affidavits and from the record in the case it appears that the trial was commenced on the 25th day of June, 1946, and a verdict in favor of defendant returned on June 27th.

Plaintiffs sought damages for severe injuries sustained by Mrs. Kauffman in a collision between an automobile operated by her, and an automobile owned and operated by defendant, which collision occurred on the streets of Auburn on January 4, 1946, and was alleged to have been caused by the negligence of defendant. In preparation for the trial, and prior to June 23rd, defendant subpoenaed as a witness one Rudolph Erends, a resident of Truckee, who was employed by the Southern Pacific Company as a locomotive engineer, and had witnessed the accident. On June 22nd Erends was also served with a subpoena to appear as a witness for plaintiffs. On June 24th one of defendant's attorneys telephoned to Truckee for the purpose of informing Erends that he would not have to respond to the subpoena served on him in behalf of defendant, but failing to reach the witness left word with someone at the Truckee Roundhouse. The message as received by Erends was that he would not have to respond to the subpoenas. He then so advised his employer, with whom he had previously made arrangements to be absent from his work, and was thereupon ordered to leave on a scheduled run.

At noon on the second day of the trial, at the conclusion of defendant's evidence, plaintiffs' attorney, who had expected to use Erends as a rebuttal witness that afternoon, seeing that the witness was not in court, asked plaintiff Frederick Kauffman to telephone him. Kauffman did so and was advised by Erends that he would not be able to appear as he was leaving immediately on a scheduled run as a locomotive engineer. On receiving this information plaintiffs' counsel did not request a continuance of the trial, but proceeded therewith when Erends failed to answer to the call of the bailiff made during the afternoon.

After a hearing on the motion for a new trial the trial court stated in a written opinion that the non-appearance of the witness was not due to any negligence or lack of diligence on the part of plaintiffs, that his testimony was material in that it would have contradicted that of defendant on important matters such as the speed at which defendant's car had entered the intersection and was traveling at the time of the impact, and it was not cumulative; and that for said reasons a new trial should be granted.

Appellant urges that the affidavits show that plaintiffs' counsel knew at noon on June 26th that Erends was not present, and that he would not respond to plaintiffs' subpoena; and that defendant's attorney Kroloff at that time advised plaintiffs' attorney that he should ask for a continuance; but that plaintiffs' attorney refused to do so; and that, because of such failure to ask for a continuance the motion for a new trial should have been denied.

Erends, in an affidavit in support of plaintiffs' motion, averred that he saw the accident, and that defendant's automobile entered the intersection at a speed of from 35 to 40 miles per hour and was so traveling when it struck plaintiffs' car; and that he would have so testified at the trial. He also deposed that the message received by him from defendant's counsel was that he would not have to appear in response to either of the subpoenas served upon him; and that when plaintiff Kauffman telephoned him at noon on June 26th he told Kauffman that he had been advised that his presence was not required, and that he could not appear because he had been assigned to immediate duty by his employer.

Appellant urges here that the trial court abused its discretion in granting a new trial, in view of the allegations of the affidavits, and that this court should reverse its order.

It is settled that a motion for a new trial is, to a large extent, addressed to the sound legal discretion of the court to which the application is made; and it has often been said that its action will not be disturbed on appeal in the absence of a clear and affirmative showing of a gross, manifest or unmistakable abuse of discretion. See Fennessey v. Pacific Gas & Electric Co., 10 Cal.2d 538, 544, 76 P.2d 104; Mazzotta v. Los Angeles Railway Corp., 25 Cal.2d 165, 169, 153 P.2d 338; Prescott v. City of Orange, 56 Cal.App.2d 144, 150, 132 P.2d 523; Whitfield v. Debrincat, 18 Cal.App.2d 730, 733, 64 P.2d 960. In the latter case it was said that where there appears to be reasonable or even fairly debatable justification therefor, an order granting a new trial will not be set aside, although a contrary order might not be disapproved or the appellate court might be inclined to take a different view. And this rule is applicable where the ground for the motion is surprise. 20 Cal.Jur. 67.

Appellant urges, however, that in this case the motion for a new trial should not have been granted because, though plaintiffs' counsel knew that Erends was not present and would not appear, they made no request for a continuance. While this might have justified the refusal of the motion had the trial court been satisfied that plaintiffs had not used reasonable diligence to procure the attendance of the witness, nevertheless it was within the province of that court to determine from the affidavits on file and the record in the case not only the question of diligence but whether the absence of the witness resulted in injury to plaintiffs.

Appellants rely upon Baker v. Barreman, 61 Cal.App.2d 235, 142 P.2d 448, but there the facts were quite different. The absent witness had never been subpoenaed nor had any attempt been made to secure his deposition; also it was known two days before the trial date that the witness would not be able to attend. In the case before us plaintiffs had duly subpoenaed the witness and did not know until noon of the second day that he would not appear, and by that time the taking of evidence was largely completed, and it was concluded that afternoon, though the case was not submitted to the jury until the 27th. Also, Erends' nonappearance was apparently due to the acts of defendant's counsel because of the manner in which they had advised Erends that they did not desire his testimony. In Baker v. Berreman it is recognized that the general rule requiring the presentation of a motion for a continuance when a party is taken by surprise is not inflexible but is to be given a reasonable application. It was so held in Delmas v. Martin, 39 Cal. 555, 557, 558, where a motion for a new trial had been denied, but the supreme court reversed the order, stating:

‘The general rule undoubtedly is, that a party surprised on a trial must apply for relief at the earliest practicable moment, and in such method as to produce the least vexation, expense and delay. He will not be allowed to speculate on the chances of a favorable decision on other points, and if he fails on these, fall back on his motion for new trial on the ground of surprise. (Schellhous v. Ball, 29 Cal. 605, 609.) But while this is the general rule, cases may and do frequently arise in which it ought not to be enforced. In Rodriguez v. Comstock, 24 Cal. 85, it was considerably relaxed in favor of a party who was deceived by his own witness in respect to the facts to which he would testify, and who failed to move for a continuance. But, in relaxing the rule, it should be done only where the surprise is clearly established, and the consequences of it can be avoided on another trial; and it must also be apparent that the party has not been guilty of laches, and has acted in good faith in omitting to apply for relief at an earlier stage in the proceedings. In this case, the deed from Black to the plaintiff was the last evidence offered in the cause, and the Court immediately proceeded to charge the jury. It may well be, that in the last stage of a jury trial, at the conclusion of the evidence, sufficient opportunity may not have occurred to enable the defendants and their counsel to decide, deliberately and discreetly, what course it was proper to pursue in respect to the last item of proof which was offered in the cause. We perceive nothing in the record to justify the belief that the defendants and their counsel were not acting in good faith in omitting to apply for a continuance, and are satisfied that they were guilty of no laches; that they were surprised, in the sense of the statute, by the deed from Black to the plaintiff, and that they can probably overcome the effect of that deed, if allowed an opportunity to do so. We think this is a proper case in which to relax somewhat the rule to which we have reverted.’

Also see Whitfield v. Debrincat, supra.

In the case before us the wisest course for plaintiffs to pursue may have been to ask for a continuance when it was learned that Erends would not be present. But the trial court's opinion indicates that it believed that plaintiffs were taken by surprise when Erends failed to appear in answer to their subpoena; that sufficient opportunity was not afforded them and their counsel to decide, deliberately and discreetly, what course it was proper to pursue, that they acted in good faith and were not guilty of laches, that the testimony of Erends was important in view of the fact that defendant had testified that his automobile was practically stopped at the time of the impact, and that in view of the whole situation presented and the importance of the testimony of Erends the ends of justice would be best met by granting the new trial as requested. That court was in a better position than we are to decide those questions; and we cannot say that in so doing its conduct constituted such an abuse of discretion as necessitates a reversal.

The order is affirmed.

I dissent.

I believe the trial court abused its discretion, under the undisputed facts of this case, in granting a new trial for alleged surprise resulting from the absence of a material witness. Suit for damages for personal injuries resulting from an automobile collision was commenced. Each party subpoenaed Rudolph Erends as a witness. He was employed as a trainman with the railroad company, and resided at Truckee. The day before the trial was commenced the defendant excused the witness. The trial lasted three days. On the second day of trial plaintiff learned that defendant had excused the witness. Plaintiffs' attorney telephoned the witness about noon on the second day of trial. The attorney was informed by the witness that he thought both parties had excused him, and that he had to leave with his train immediately and could not attend the trial at that time. Plaintiffs' attorney promptly informed counsel for the defendant that he wanted to call that witness to rebut evidence adduced by the defendant. Defendant's attorney told him he should then move for a continuance. Plaintiffs' attorney neglected to call the court's attention to his failure to obtain the presence of the witness, and he failed to move for a continuance. He permitted the completion of the evidence, argument and submission of the case to the jury, without notice of the absence of the witness, and without a motion for continuance. He evidently speculated on a favorable verdict. The jury returned a verdict for the defendant. For the first time plaintiff urged his alleged surprise on his motion for new trial. The court found that the evidence of the witness was material and not cumulative, and thereupon granted the motion for new trial. Plaintiffs' failure to call the court's attention to the absence of the witness, and their failure to move for a continuance constituted a waiver of the presence of the witness on that account, in spite of the fact that he had been previously subpoenaed. Plaintiffs' attorney had full knowledge of the inability of the witness to attend the trial at least one day before the cause was submitted to the jury, and failed to show diligence, by a motion for continuance, or otherwise. Under such circumstances there appears to be no room for discretion of the court in granting the new trial on that ground.

The rule is uniform to the effect that when a litigant has full knowledge of the inability of a material witness to attend before or during the trial, and fails to avail himself of his remedy by timely notice to the court or motion for a continuance, he thereby waives his right to complain on that account. Baker v. Berreman, 61 Cal.App.2d 235, 243, 142 P.2d 448; Schellhous v. Ball, 29 Cal. 605; Denvir v. Judson Freight Forwarding Co., 86 Cal.App. 369, 372, 260 P. 846; 20 Cal.Jur. 74, sec. 53. In the Baker case, supra, quoting with approval from the Schellhous case, supra, it is said, 61 Cal.App.2d at page 242, 142 P.2d at page 452, that:

“Upon this ground [surprise] new trials should be granted with great caution, for in many cases it is used as a pretext and a cover for carelessness and inattention rather than as a meritorious ground for relief. A party claiming to have been injured must show that the surprise has not resulted in any degree from his own fault or negligence, and must in addition claim his relief at the earliest opportunity. If he can relieve himself from his embarrassment in any mode, either by a nonsuit or a continuance, or the introduction of other testimony, or otherwise, he must not take the chances of a verdict, but must at once fortify his position by resorting to all available modes of present relief.”

With reference to the foregoing uniform rule, the court in the Baker case further said:

‘So far as our attention has been called, there has been no repudiation of such general rule.’

In the Denvir case, supra [86 Cal.App. 369, 260 P. 846] it is likewise said:

‘Appellant made no effort to secure a continuance in order to meet this contingency of adverse testimony secured from her own witness on cross-examination. It is the general rule that a party who claims to have been surprised by the evidence adduced by his adversary must move for a continuance, or he will not be permitted to avail himself of that point on appeal. * * * A party should not be allowed to speculate on the chances of a favorable decision, and after he has lost his cause, move for a new trial on the ground that he was surprised by the introduction of certain testimony by his adversary.’

A trial court ordinarily has a sound discretion in granting or denying a new trial. But it may not be said to be the exercise of sound discretion when the granting of a new trial necessarily conflicts with the uncontradicted evidence, and results in a disregard of the foregoing uniform rule with respect to diligence. Such a ruling would furnish a precedent for the utter destruction of a wise and just rule of law.

The order granting a new trial should be reversed.

ADAMS, Presiding Justice.

PEEK, J., concurs.

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