Meek v. Southern California Railway Co. — 7 Cal. App. 606

Majority

p. 606

[Civ. No. 346.

Second Appellate District.

February 25, 1908.]

MAE MEEK, Appellant, v. SOUTHERN CALIFORNIA RAILWAY COMPANY, Respondent.

Headnote

Appeal—Review—Support of Judgment—Insufficient Specifications for New Trial—Affirmance.—On appeal from the judgment and from an order denying a new trial, where the findings fully support tne judgment for the respondent, and there are no sufficient specifications of error, or of insufficiency of the evidence to support the findings in the motion for a new trial, the judgment and order appealed from must be affirmed.

Id.—General Specification Insufficient—Rule as to Absence of Evidence Inapplicable.—A general specification is insufficient where there is ■ more than one finding, and it is impossible to ascertain which finding is attacked; and the rule" where there is an entire absence of evidence is inapplicable where one of the findings is clearly supported by evidence.

APPEAL from a judgment of the Superior Court of Los "Angeles County, and from an order denying a new trial. Charles Monroe, judge.

p. 607

The facts are stated in the opinion of the court.

Bernard Potter, and Frank James, for Appellant.

T. J. Norton, B. E. Milliken, and B. W. Camp, for Bespondent.

Appeal by plaintiff from a judgment of the superior court of Los Angeles county in favor of defendant and from an order denying a new trial.

The action was by a passenger who had been ejected from a train by defendant’s servants without cause and in a violent manner. The complaint stated facts sufficient to entitle plaintiff to general damages, and, in addition, set out certain facts entitling her to special damages. The answer denied the various allegations of the complaint, and by way of further defense pleaded an accord and satisfaction.

The court found in favor of plaintiff upon each of the allegations of the complaint relating to general damages, but against plaintiff on her plea of special damages; and found in favor of defendant upon the plea of accord and satisfaction.

The findings are sufficient to support the judgment. The only specifications of error found in the statement on motion for a new trial are, that “the plaintiff gave and duly served and filed her notice of intention to move for a new trial, upon the grounds that the evidence is insufficient to justify the findings and decision of the court; that the findings and decision of the court are against law.” We cannot consider the statement on motion for a new trial to determine whether or not the evidence supports the findings and decision, for the reason that the statement contains no specifications of error, as provided by section 648, of the Code of Civil Procedure. That section provides that “when the exception is to the verdict or decision upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient.” It is insisted by appellant that this section has no application when a single finding only is against the appellant and all the other findings are in her favor. Under the record in this case it is unnecessary to pass upon this question, for, as a fact, there are two findings against appellant, and from

p. 608

the general specifications it is not possible to ascertain which finding is attacked. In Swift v. Occidental Mining etc. Co., 141 Cal. 168 , [ 74 Pac. 700 ], it is said, in speaking of the rule established by the section referred to: “That the object of the rule requiring these specifications is, first, to shorten the statement of the evidence by excluding everything irrelevant to the specified fact; and, second, to notify the opposing party of the particular finding called in question, in order that he may see that the statement fairly and fully presents the evidence bearing upon that particular matter.” The statement on motion for a new trial in the case at bar only purports to contain such evidence as is material to the ease, which must be construed as a statement that it is all of the evidence material in connéction with the findings specified as unwarranted. “The specifications should in some form distinguish each particular proposition of fact excepted to from all others found by the court.” (Dawson v. Schloss, 93 Cal. 194 , [ 29 Pac. 31 ] ; De Molera v. Martin, 120 Cal. 546 , [ 52 Pac. 825 ].) Treating the grounds of motion for new trial found in the statement as being specifications of error, the trial court was not advised, either when settling the statement or hearing the motion for new trial, as to what particular finding of fact the moving party claimed was unsupported. It cannot be said that there was no evidence in support of either finding against plaintiff, for on the plea of special damages the finding is entirely warranted' from the evidence. Hence, the rule applying where there is an entire absence of evidence is not applicable here.

Judgment and order affirmed.

Shaw, J., and Taggart, J., concurred.

Cases cited

Dawson v. Schloss 93 Cal. 194 Cal. 1892-02-04 p. 608