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


Civ. 19279.

Decided: April 17, 1953

Trope & Trope, Eugene L. Trope and Sorrell Trope, Beverly Hills, for appellants. Moss, Lyon & Dunn, Richard B. Coyle and Henry F. Walker, Los Angeles, for respondent.

From a judgment predicated upon the granting of defendant's motion for a directed verdict after trial before a jury in an action to recover damages for personal injuries, plaintiffs appeal. There are also purported appeals from the verdict and from the order denying plaintiffs' motion for a new trial.

Facts: The Central Jewish Committee rented the Shrine Auditorium for the purpose of holding a ‘Town Fair’. The net proceeds of such event were to be given to the defendant, City of Hope, which is a charitable organization. Plaintiff Jean Sokolow, acting in the capacity of a volunteer waitress at the fair, serving foods and coffee, fell with the result that she was injured.

In the room, at about the place where plaintiff fell, was a gas pipe which had been installed temporarily to supply fuel for the purpose of cooking.

At the end of the trial defendant made a motion for a directed verdict on the ground, among others, that there was ‘no showing or evidence of any negligence on the part of this defendant which was the proximate cause of the accident in question.’ The trial court granted the motion saying: ‘The Court feels that the agency has not been satisfactorily shown to hold the City of Hope as a corporation liable for the accident that the evidence shows took place.’

Question: Did the trial court err in granting defendant's motion for a directed verdict?

No. This rule is here applicable:

On appeal from a judgment predicated upon a directed verdict, an appellate court is not restricted to a consideration of the single ground stated by the trial judge as the reason for directing the verdict, but will sustain the trial court's action if it was proper upon any ground. (United Air Services, Ltd. v. Sampson, 30 Cal.App.2d 135, 138[1], 86 P.2d 366.)

Applying this rule to the facts at bar it is evident the trial court's order was properly made for the reason that the record is devoid of any evidence showing negligence of defendant which was the proximate cause of Mrs. Sokolow's injury.

The record fails to show the cause of her fall. She testified:

‘Well, it was between 2:00 and 3:00 o'clock in the afternoon and the crowd was very big and everyone wanted to eat at the same time. They all come and clamored for food and they wanted it so I served—I had a party of about ten and I served them sandwiches of different kinds; and then they went to sit down at the table further down than the table where we worked. And while standing there and working, one man hollered out, ‘Hand me a cup of coffee, please.’ And I took the cup and the urn was right near me with the coffee already done. I took that cup of coffee and I was going out to hand it to the man because they were at the table; and as I reached the corner of the stand wherever the table was, I felt I was falling. I tripped on something. I felt I was falling and I tried to prevent myself, but I couldn't. That is all I know. The Court: Until when? The Witness: Until after they work me up. I fell. I don't know what happened, * * *'

Another witness, Mrs. Greenberg, merely testified that she saw Mrs. Sokolow fall and Mr. Sokolow testified that he was 30 or 40 feet away from his wife when she fell and learned of her fall from another person. None of the witnesses testified as to the cause of Mrs. Sokolow's fall or any fact from which the jury could reasonably determine the cause of the fall. Hence any verdict in favor of plaintiffs of necessity would have been predicated upon guess, conjecture and speculation. Clearly the order of the trial court was correct.

In view of our conclusion it is unnecessary to consider other points discussed by counsel in their brief.

An appeal does not lie from (1) a verdict or (2) an order denying a motion for a new trial in a civil action. (Sawyer v. Sunset Mutual Life Ins. Co., 8 Cal.2d 492, 501[7], 66 P.2d 641.)

The appeals from the orders are dismissed and the judgment is affirmed.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.