PETERS, P. J.
Defendant Souza appeals from an order of the trial court granting plaintiffs’ motion for a new trial after a verdict and judgment in favor of defendant Souza. The sole question necessary to be decided on this appeal is whether the motion was granted on the ground of insufficiency of the evidence to justify the verdict. If so, the appeal is without merit.
Robert Bayley and his wife Florence Bayley brought this action, for damages sustained in an automobile accident, against Ethel Ewing, Audrey Wheeler (now Audrey Bates), and appellant Souza. A verdict was returned in favor of defendant Souza, and in favor of plaintiffs against Ethel Ewing and Audrey Bates in the sum of $1500. These two last mentioned defendants moved for a new trial, and plaintiffs moved for a new trial against all defendants. In plaintiffs’ notice of intention to move for a new trial one of the grounds specified was “insufficiency of the evidence to justify the verdict”. Upon the hearing of the motions the trial court ordered that “the motion for a new trial be granted as to defendants Ethel Ewing and Audrey Bates, and the motion for new trial as to defendant George A. Souza be continued” to a later date. Several days later plaintiffs’ motion for a new trial against Souza was granted, the order reading in part as follows: “It is ordered by the Court that plaintiffs’ motion for new trial as to defendant, George A. Souza be and the same is hereby granted on all issues”.
In his opening brief appellant proceeds upon the assumption that the motion for a new trial was granted solely because the trial court concluded that a certain statement, pre[168]*168sumably inconsistent, as appellant contends, with other evidence of an impeaching character, had been erroneously admitted into evidence. Appellant argues that such evidence was admissible; that the motion for a new trial should have been denied, and that the order of the court should now be reversed. Respondents ignore this point, and argue that under the phraseology of the ruling of the trial court upon the motion, insufficiency of the evidence was the ground or included within the grounds upon which the motion was granted. It will not be necessary to consider the question of the admissibility of the evidence referred to by appellant. The respondents did not object to the admission of the evidence during the trial and are therefore precluded from doing so on appeal. (Estate of Russell, 189 Cal. 759 [210 Pac. 249] ; Supreme Grand Lodge, etc., v. Smith, 7 Cal. (2d) 510 [61 Pac. (2d) 449]; 46 C. J., p. 129, see. 84; p. 131, sec. 85.) The objection was interposed by some of the defendants who are not parties to this appeal.
Respondents do not argue that any error of law occurred during the trial, but depend solely upon the contention that the order above quoted was based upon insufficiency of the evidence. Code of Civil Procedure, section 657, enumerates the grounds for granting a new trial on all or part of the issues. Subdivision 6 thereof, as it read at the period applicable to this case specified insufficiency of the evidence to justify the verdict. The section also provided: “When a new trial is granted, on all or part of the issues, upon the ground of the insufficiency of the evidence to sustain the verdict, the order shall so specify; otherwise, on appeal from such order it will be presumed that the order was not based upon that ground”. Prior to an amendment making the presumption conclusive (Stats. 1939, chap. 713, p. 2234), which amendment became effective after the entry of the order here appealed from, the section simply provided that in the absence of the designation of the ground of insufficiency of the evidence it would be presumed that the order was not based upon that ground.
The limitation contained in the section requiring a specification where a new trial is granted on insufficiency of the evidence, prior to the 1939 amendment, supra, only applied to orders granting a motion for a new trial after a verdict by a jury, and did not require such specification in an order [169]*169granting a new trial after a decision by the court. (Gruben v. Leebrick & Fisher, Inc., 32 Cal. App. (2d) (Supp.) 762 [84 Pac. (2d) 1078].) Prior to 1919 the section did not require the trial court to specify insufficiency of the evidence in its order granting a new trial after a jury verdict. The quoted provision of the statute requiring such specification was added in that year (Stats. 1919, p. 141). Under the 1919 amendment the cases have established the construction that it id not necessary for the trial court to use the exact language contained in section 657 of the Code of Civil Procedure— that if the language used in granting the motion for a new trial after a jury verdict is susceptible of the reasonable interpretation that the trial court intended to include insufficiency of the evidence, it must be so interpreted. (Secreto v. Car-lander, 35 Cal. App. (2d) 361, 363 [95 Pac. (2d) 476] ; Lewis v. Southern California Edison Co., 116 Cal. App. 44 [2 Pac. (2d) 419].) The only question presented, therefore, is whether the language “on all issues” can be reasonably interpreted to include insufficiency of the evidence.
Many cases have considered the question as to whether the particular language there used could be interpreted as including insufficiency of the evidence. It is well-settled that when the order provides simply that a new trial is granted, such order is a general one and does not include insufficiency of the evidence. (Tasker v. Cochrane, 94 Cal. App. 361 [271 Pac. 503].) In such case there is nothing to interpret. There is no language that can be interpreted as complying with the provisions of section 657 of the Code of Civil Procedure. But when the trial court goes beyond such general order, and uses any language that can reasonably be interpreted as including insufficiency of the evidence, the appellate courts have uniformly interpreted the language as including that ground. It must be remembered that all presumptions are in favor of the order and that the burden is on the appellant to show error. (2 Cal. Jur., p. 887, sec. 522.)
In Lewis v. Southern California Edison Co., supra, a new trial after a jury verdict was granted, the order reading: “ ... it is ordered that the said motion be granted on all the grounds stated in the notice of intention to move for a new trial.” It was held that, inasmuch as the notice of intention specified insufficiency of the evidence, the order included that as one of its grounds.
[170]*170In Griffey v. Pacific Electric Ry. Co., 58 Cal. App. 509 [209 Pac. 45], the order recited that it was granted “on the ground of excessive damages.” The court held that this language was (p. 513) “tantamount to a specification that the new trial was granted on the ground of the insufficiency of the evidence ... ”.
In Secreto v. Carlander, supra, the order granting the new trial after a jury verdict provided that if the defendant filed a consent to increase the judgment in a specified amount, “the motion for a new trial will be denied; otherwise the motion will be granted." It was held that the order included insufficiency of the evidence because it indicated that the trial court believed the verdict was not adequate.
In Lucerne Country Club v. Beal, 21 Cal. App. (2d) 121 [68 Pac. (2d) 408], the order read that the new trial was granted “as to all issues made by the said cross-complaint of the said B. J.
Free access — add to your briefcase to read the full text and ask questions with AI
PETERS, P. J.
Defendant Souza appeals from an order of the trial court granting plaintiffs’ motion for a new trial after a verdict and judgment in favor of defendant Souza. The sole question necessary to be decided on this appeal is whether the motion was granted on the ground of insufficiency of the evidence to justify the verdict. If so, the appeal is without merit.
Robert Bayley and his wife Florence Bayley brought this action, for damages sustained in an automobile accident, against Ethel Ewing, Audrey Wheeler (now Audrey Bates), and appellant Souza. A verdict was returned in favor of defendant Souza, and in favor of plaintiffs against Ethel Ewing and Audrey Bates in the sum of $1500. These two last mentioned defendants moved for a new trial, and plaintiffs moved for a new trial against all defendants. In plaintiffs’ notice of intention to move for a new trial one of the grounds specified was “insufficiency of the evidence to justify the verdict”. Upon the hearing of the motions the trial court ordered that “the motion for a new trial be granted as to defendants Ethel Ewing and Audrey Bates, and the motion for new trial as to defendant George A. Souza be continued” to a later date. Several days later plaintiffs’ motion for a new trial against Souza was granted, the order reading in part as follows: “It is ordered by the Court that plaintiffs’ motion for new trial as to defendant, George A. Souza be and the same is hereby granted on all issues”.
In his opening brief appellant proceeds upon the assumption that the motion for a new trial was granted solely because the trial court concluded that a certain statement, pre[168]*168sumably inconsistent, as appellant contends, with other evidence of an impeaching character, had been erroneously admitted into evidence. Appellant argues that such evidence was admissible; that the motion for a new trial should have been denied, and that the order of the court should now be reversed. Respondents ignore this point, and argue that under the phraseology of the ruling of the trial court upon the motion, insufficiency of the evidence was the ground or included within the grounds upon which the motion was granted. It will not be necessary to consider the question of the admissibility of the evidence referred to by appellant. The respondents did not object to the admission of the evidence during the trial and are therefore precluded from doing so on appeal. (Estate of Russell, 189 Cal. 759 [210 Pac. 249] ; Supreme Grand Lodge, etc., v. Smith, 7 Cal. (2d) 510 [61 Pac. (2d) 449]; 46 C. J., p. 129, see. 84; p. 131, sec. 85.) The objection was interposed by some of the defendants who are not parties to this appeal.
Respondents do not argue that any error of law occurred during the trial, but depend solely upon the contention that the order above quoted was based upon insufficiency of the evidence. Code of Civil Procedure, section 657, enumerates the grounds for granting a new trial on all or part of the issues. Subdivision 6 thereof, as it read at the period applicable to this case specified insufficiency of the evidence to justify the verdict. The section also provided: “When a new trial is granted, on all or part of the issues, upon the ground of the insufficiency of the evidence to sustain the verdict, the order shall so specify; otherwise, on appeal from such order it will be presumed that the order was not based upon that ground”. Prior to an amendment making the presumption conclusive (Stats. 1939, chap. 713, p. 2234), which amendment became effective after the entry of the order here appealed from, the section simply provided that in the absence of the designation of the ground of insufficiency of the evidence it would be presumed that the order was not based upon that ground.
The limitation contained in the section requiring a specification where a new trial is granted on insufficiency of the evidence, prior to the 1939 amendment, supra, only applied to orders granting a motion for a new trial after a verdict by a jury, and did not require such specification in an order [169]*169granting a new trial after a decision by the court. (Gruben v. Leebrick & Fisher, Inc., 32 Cal. App. (2d) (Supp.) 762 [84 Pac. (2d) 1078].) Prior to 1919 the section did not require the trial court to specify insufficiency of the evidence in its order granting a new trial after a jury verdict. The quoted provision of the statute requiring such specification was added in that year (Stats. 1919, p. 141). Under the 1919 amendment the cases have established the construction that it id not necessary for the trial court to use the exact language contained in section 657 of the Code of Civil Procedure— that if the language used in granting the motion for a new trial after a jury verdict is susceptible of the reasonable interpretation that the trial court intended to include insufficiency of the evidence, it must be so interpreted. (Secreto v. Car-lander, 35 Cal. App. (2d) 361, 363 [95 Pac. (2d) 476] ; Lewis v. Southern California Edison Co., 116 Cal. App. 44 [2 Pac. (2d) 419].) The only question presented, therefore, is whether the language “on all issues” can be reasonably interpreted to include insufficiency of the evidence.
Many cases have considered the question as to whether the particular language there used could be interpreted as including insufficiency of the evidence. It is well-settled that when the order provides simply that a new trial is granted, such order is a general one and does not include insufficiency of the evidence. (Tasker v. Cochrane, 94 Cal. App. 361 [271 Pac. 503].) In such case there is nothing to interpret. There is no language that can be interpreted as complying with the provisions of section 657 of the Code of Civil Procedure. But when the trial court goes beyond such general order, and uses any language that can reasonably be interpreted as including insufficiency of the evidence, the appellate courts have uniformly interpreted the language as including that ground. It must be remembered that all presumptions are in favor of the order and that the burden is on the appellant to show error. (2 Cal. Jur., p. 887, sec. 522.)
In Lewis v. Southern California Edison Co., supra, a new trial after a jury verdict was granted, the order reading: “ ... it is ordered that the said motion be granted on all the grounds stated in the notice of intention to move for a new trial.” It was held that, inasmuch as the notice of intention specified insufficiency of the evidence, the order included that as one of its grounds.
[170]*170In Griffey v. Pacific Electric Ry. Co., 58 Cal. App. 509 [209 Pac. 45], the order recited that it was granted “on the ground of excessive damages.” The court held that this language was (p. 513) “tantamount to a specification that the new trial was granted on the ground of the insufficiency of the evidence ... ”.
In Secreto v. Carlander, supra, the order granting the new trial after a jury verdict provided that if the defendant filed a consent to increase the judgment in a specified amount, “the motion for a new trial will be denied; otherwise the motion will be granted." It was held that the order included insufficiency of the evidence because it indicated that the trial court believed the verdict was not adequate.
In Lucerne Country Club v. Beal, 21 Cal. App. (2d) 121 [68 Pac. (2d) 408], the order read that the new trial was granted “as to all issues made by the said cross-complaint of the said B. J. Palmer and the answer thereto.” The appellate court erroneously treated the case as if it involved the granting of a new trial after a jury verdict. It discussed at some length the requirement of section 657 of the Code of Civil Procedure, and held that the order, properly interpreted, did include insufficiency of the evidence. After quoting from Lewis v. Southern California Edison Co., supra, the court stated (p. 126) : “The order in the instant case is likewise not a general order. While it does not directly refer to any of the six grounds upon which the motion for a new trial was based, it does grant a new trial as to all the issues made by the cross-complaint and the answer thereto. All of the issues made by the cross-complaint and the answer thereto, and all the facts involved or tendered by the pleadings mentioned, which necessarily includes whatever testimony may be offered to support the issues there tendered and the facts to be determined by the trial court which, as has been determined in a case about to be cited, is tantamount to granting a new trial on account of the insufficiency of the testimony to support the facts as theretofore found upon the issues tendered by such pleadings”.
These cases demonstrate that the order here involved, granting the new trial "on all issues", is susceptible of the reasonable interpretation that the trial court intended by that language to include insufficiency of the evidence. What else can the expression "on all issues" mean ? It must mean either [171]*171all issues presented by the pleadings, which would include the issues of negligence of appellant and contributory negligence of respondent, and the sufficiency of the evidence to support the implied finding of the jury on these issues, or it must mean all issues presented by the motion for a new trial, one of which was the sufficiency of the evidence. In either event, under the cases cited, such order is not a general order, but must be interpreted as including a reference to insufficiency of the evidence within the meaning of section 657 of the Code of Civil Procedure.
That this must have been the trial court’s intention is demonstrated by the facts of the present case. The accident happened on a Sunday at about 6:30 P. M., on the Black Point Cut-off in Marin County. There was a steady stream of westbound traffic on this two lane highway at that time, and among the cars was one owned by defendant Ewing, and driven by her daughter Audrey Bates; one driven by defendant Robert Bayley, who was accompanied by his wife, and one being driven by a Max D. Petroff. There is some conflict as to the order of these three ears in the line of traffic, but there is no doubt that plaintiffs’ car was the third of that particular group. Defendant Souza, traveling eastward, from which direction there was less travel, came in contact with the car driven by defendant Bates, and as a result of this collision the above three cars became involved in the accident. Both plaintiffs suffered certain injuries, and their car was damaged.
The questions involved in the case were whether the accident was due solely to the negligence of respondents, or solely to the negligence of Souza, or solely to the negligence of Audrey Bates, or due to the concurring negligence of any two or more of them. There is substantial evidence in the record from which a jury would be justified in finding that respondents were not negligent and that the accident was either caused by the negligence of Souza, or by the concurring negligence of Souza and Bates. Under such circumstances it rested within the discretion of the trial court to grant or deny the motion for a new trial on the ground of insufficiency of the evidence. (Lewis v. Southern California Edison Co., supra.) Obviously, inasmuch as a new trial was granted as to the other defendants, the ends of justice will be served if the cause is retried on all the issues. That is very likely the [172]*172reason why the trial court inserted in its order the words “on all issues.”
Some reference should be made to the 1939 amendment to section 657 of the Code of Civil Procedure, supra,, even though the parties to this appeal place no reliance thereon. That amendment became effective some time after the entry of the order from which the appeal here involved was taken. Whatever may be the rule as to the retroactive effect of procedural amendments, that amendment, whatever its proper interpretation may be, can have no application to this appeal. We are here trying to ascertain what the trial court meant by certain language in the order. If that language meant and was intended to mean one thing when it was used by the trial court, then that meaning obviously could not be changed by a later amendment of the law.
The order appealed from is affirmed.
Knight, J., concurred.