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District Court of Appeal, Fourth District, California.


Civ. 3689.

Decided: August 09, 1948

Leslie L. Burr, of El Centro, for appellants. George R. Kirk, of El Centro, for respondent.

This case was before this court before. The appeal was based on an order granting a new trial. Imperial-Yuma Production Credit Ass'n v. Shields, 74 Cal.App.2d 932, 169 P.2d 671. The nature of the proceedings, pleadings and factual background are the same as there related. The original action was based on a promissory note for $6281.12, signed by defendants, upon which there was an unpaid balance in the sum of $3422.48. Its due execution was admitted in the answer. Defendants denied that there was anything due thereon and filed a cross-complaint alleging that $2310.88 was due them because plaintiff had failed to give them credit on the note for the sale of 1010 sacks of wheat. Secondly, that in 1941, defendants planted a crop of barley and that it was the understanding that at the proper time the acreage in barley was to be pastured and the return from the pasturage was to be paid to plaintiff; that plaintiff failed to have the pasturing done at the proper time and the crop, consisting of 120 acres, was destroyed and that if permitted to be pastured at the proper time that acreage would have produced a grain crop valued at $3500 and therefore defendants suffered this amount of damage less a credit of $298.88 already allowed for such pasturage.

The case was tried before a jury on April 22, 1947. At the conclusion of the evidence the trial judge, apparently believing that the defendants had failed to substantiate their alleged claim under their answer and cross-complaint, granted a motion on behalf of plaintiff for an instructed verdict in the amount sought in plaintiff's complaint and directed that defendants recover nothing upon their cross-complaint. A verdict, in this form, was presented to it. The jury retired for deliberation and on returning refused to obey the court's instruction. Counsel for plaintiff moved that the jury be dismissed and also moved for a judgment for plaintiff as prayed for and asked the court to enter such a judgment. Counsel for defendants then moved for a mistrial and asked that the jury be discharged. Later, the court denied defendants' motion and granted that of plaintiff and on the same day a written judgment in favor of plaintiff was presented to the court and signed. A motion for a new trial and to vacate the judgment was denied. This appeal followed.

The defendants argue that it was error to grant plaintiff and cross-defendant's motion for entry of judgment by the court and to later enter such a judgment; that the denial of the motion of defendants, upon the refusal of the jury to return a directed verdict for the plaintiff was error; and that the judgment of the court is void as being in violation of section 616 of the Code of Civil Procedure; and that it was error to deny defendants and cross complainants' motion for a new trial and to deny the motion to vacate the judgment.

We are guided first by the general rule with reference to the authority of a trial court to direct a verdict. It is the established law of this state that the power of a court to direct a verdict is the same as the power of the court to grant a nonsuit. Quoting from Estate of Flood, 217 Cal. 763, 21 P.2d 579, 580, it is said:

‘A nonsuit or a directed verdict may be granted ‘only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given.’'

A similar statement of the rule is set forth in Gish v. Los Angeles R. Corporation, 13 Cal.2d 570, 90 P.2d 792, and it is there said that a court is not justified in taking a case away from the jury and itself rendering the decision unless it can be said that, as a matter of law, no other conclusion is reasonably deductible from the evidence. See, also, Powers v. Cherry, 42 Cal.App.2d 489, 109 P.2d 361.

We must therefore first analyze the evidence presented, in the light of this rule, to determine whether or not there was sufficient substantial evidence presented in support of the defendants' answer and cross-complaint upon which the jury could have found in their favor.

Plaintiff offered in evidence the promissory note as well as its books of account showing all credits given defendants. A crop and chattel mortgage on certain described farming implements was executed by defendants as security for the payment of the original note. Assignments of proceeds of sale of mortgaged crops for 1940, 1941, and 1942 were obtained from defendants and also the Warner Seed Company where defendants sold their crops. A similar assignment was signed respecting proceeds from rentals of certain lands for forage for 1940–1941. Letters in evidence show that defendants wrote plaintiff in September, 1940, acknowledging an indebtedness and expressing a great desire to pay it off. The Warner Seed Company's records were received in evidence. They disclose an account for all grains it claims it received from defendants and of the payments made to plaintiff which were the proceeds under the assignment.

This action was instituted in 1944. The farm implements and machinery given as security under the chattel mortgage are all worn out and have no particular value.

Plaintiff's agent testified that Mr. Shields admitted owing the balance due but claimed ‘Times were pretty tough’. Defendant Mr. Shields testified that he was farming about 600 acres under crop mortgage to plaintiff and that he was farming 320 acres not under the mortgage; that the Pasqual Land and Cattle Company pastured, by agreement, his acreage planted to barley but that it was not ‘pastured off’ at the proper time. For this pasturage plaintiff gave credit under the assignment to defendants on their note in the sum of $290, less a water bill of $51.80, and gave the cattle company a receipt for same.

It is defendants' argument, as we interpret, it, that plaintiff company became liable for the reason that a loss occurred because the cattle company pastured defendants' acreage at an improper time.

There is no competent or substantial evidence substantiating this claimed damage nor is there any evidence attaching liability to the plaintiff for this claimed act. In fact, all of the evidence points to the conclusion that defendants made all arrangements with the cattle company for the pasturing of the acreage.

Considerable testimony was received in respect to the amount of grain delivered to the Warner Seed Company by defendants. Defendants intimate that they delivered more than the records of the Warner Seed Company reflect by their books. They fall far short of proving this fact. They point to no evidence substantiating this claim. Even assuming there was some discrepancy between their accounts, the record shows that as far as the plaintiff was concerned, it credited defendants' account with the amounts actually received from the Warner Seed Company under the assignment of the proceeds. If there was a shortage as between defendants and the Warner Seed Company it is not reflected in the record. At least, plaintiff's liability for any claimed shortage does not appear.

It therefore appears that there was no evidence substantiating defendants' cross-complaint as to plaintiff's liability for damages or that defendants were entitled to any credits other than those established by the uncontradicted evidence. Proof of these credits and the balance due on the note are the same as the allegations in the complaint. Therefore, there was no factual question for the jury to decide. Defendants failed to prove a cause of action on their cross-complaint. Plaintiff was entitled to and the court gave a directed verdict thereon. No other verdict could have been legally supported by the evidence.

We now turn to the next question presented, i. e., that the trial court lacked authority to enter the judgment complained of and was bound to again present the question to another jury under sec. 616 of the Code of Civil Procedure, citing Vitimin Milling Corporation v. Superior Court, 1 Cal.2d 116, 33 P.2d 1016; and Casner v. Daily News Company, Ltd., 16 Cal.2d 410, 106 P.2d 201, 202.

In the Vitimin Milling Corporation case a motion for an instructed verdict was granted but the court never instructed the jury to return such a verdict. It was there held that sec. 616 of the Code of Civil Procedure did apply. In the instant case the trial court did so instruct the jury and it refused to comply with the instruction.

Likewise, in the Casner case, no order directing a verdict was made and no such instruction was submitted to the jury for its consideration. It is there said:

‘* * * there is no showing or intimation that the jury in this case would have refused to return a verdict for the petitioner, if it had been instructed so to do.’

In the former trial of the instant case a jury did render a verdict in favor of defendants on their cross-complaint and the trial court granted a new trial. On a new trial a second jury refused to follow the instructions of the court and apparently intended to base a verdict in favor of defendants without substantial evidence to support it. Has the trial court no power to put an end to such litigation where the question raised becomes one of law only and not a question of fact?

Estate of Sharon, 179 Cal. 447, 460, 177 P. 283, definitely holds that a direction to render a verdict in favor of a party is the decision of the court upon a question of law. It was said by Mr. Justice Edmonds in his dissenting opinion in the Casner case, 16 Cal.2d at page 417, 106 P.2d at page 204, that

‘* * * The absence of a written verdict in such a case is at most a defect of form; and where the absence is a result of contumacious refusal by the jury, it is not a defect at all, since the court has full power to give the necessary judgment. Subsequent decisions have followed this reasoning and have applied the rule without any question * * *

‘The District Courts of Appeal, in a number of recent decisions, have spoken unequivocally to the same effect, namely, that the court may enter judgment where a directed verdict is proper, irrespective of whether the jury actually returned the verdict.’ (Citing cases.)

It now appears that a new section of the Code of Civil Procedure, sec. 630 (effective 91 days after June 20, 1947), was added, specifically declaring the right of the trial court to order judgment entered on a directed verdict where, for any reason, the motion for a directed verdict was not granted and the jury was discharged without having rendered a verdict. The judgment in the instant case, however, was entered prior to the effective date of the new section.

In Reay v. Reay, 97 Cal.App. 264, 271, 275 P. 533, 536, it was said:

‘As the court was empowered to direct any one member of the jury to sign and return a verdict in compliance with the instruction, so also was the court empowered to enter judgment on that case of action for defendants irrespective of whether or not the jury returned any verdict or if the jury refused to return a verdict in compliance with the instruction. * * *

‘* * * the court would have the power to enter judgment in a case at law where directions to return a verdict were not followed.’ See, also, Umstead v. Scofield Engineering Const. Co., 203 Cal. 224, 263 P. 799.

The question of the right of plaintiff to bring this action on a renewal note, which question is attempted to be raised again on this appeal, was determined in the former appeal.

We firmly believe that the trial judge was fully justified in entering the judgment appealed from under the circumstances here related.

Judgment affirmed.

GRIFFIN, Justice.

BARNARD, P. J., concurs.

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