208 P. 997 | Cal. Ct. App. | 1922
This is an appeal from an order granting a new trial in an action for damages alleged to have been sustained by plaintiff through the negligence of defendant. The answer pleads contributory negligence. A verdict for fifteen thousand five hundred dollars in favor of plaintiff was returned by the jury, and judgment was entered accordingly. Thereafter defendant gave notice of its intention to move for a new trial on the ground, among others, that the evidence is insufficient to support the verdict. In due time defendant presented its motion; the motion was granted and a new trial ordered; and plaintiff now appeals from the order.
Respondent, claiming that the record shows that the new trial was ordered on the ground of the insufficiency of the evidence to support the verdict, in that it appears from the preponderance of the evidence that the plaintiff was guilty of contributory negligence, contends that the order must be affirmed unless it shall be made to appear that the lower court, in granting the new trial, committed a manifest abuse of its discretion.
The record on appeal contains copies of two minute entries of the order granting a new trial, made, respectively, on March 18, 1921, and March 28, 1921. The first, that of March 18, 1921, reads: "Defendant's motion for a new trial is granted." The second, dated March 28, 1921, is as follows: "It appearing that in the minute entry of the order granting a new trial on the 18th day of March, 1921, the statement of the grounds on which said order was made was inadvertently omitted, and for the purpose of correcting said inadvertent omission, said order is hereby amended and corrected, nunc pro tunc, as of March 18, 1921, to read as follows: Defendant's motion for a new *503 trial is hereby granted, on the ground of the insufficiency of the evidence to support the verdict, in that it appears from the preponderance of the evidence that the plaintiff was guilty of contributory negligence."
Appellant, contending that the second minute entry was unauthorized and that the first is the only existing valid record of the order granting a new trial, claims that, because the first minute entry does not specify that the new trial is granted on the ground of the insufficiency of the evidence to support the verdict, it must be presumed here that insufficiency of the evidence was not the ground on which the order was based, citing section
Both sides have filed in this court affidavits wherein the affiants purport to set forth some of the circumstances under which the two minute entries were made. These affidavits may not be considered by us. They are not a part of the record on appeal. This court must be governed by the record on appeal, duly authenticated in the mode prescribed by law. [1] That record, properly certified, is conclusive evidence of the facts stated therein, and no extrinsic evidence may be received to supplement or contradict it. (Boston v. Haynes,
[2] The record on appeal discloses no lack of authority in the trial court to direct the making of the second minute entry. That court has the inherent power to correct its records so as to cure clerical misprisions. Any error or defect in a record occurring through acts of omission or commission of the clerk in entering of record the judgment or proceedings of the court may be corrected at any time by the court on its own motion, or on motion of an interested party. "Every court of record," says our supreme court in Kauffman v. Shain,
[3] Appellant's claim that the lower court exceeded its authority in entering the nunc pro tunc order of March 28, 1921, is based upon the assumption that the omission from the original minute entry of any statement that the new trial was granted on the ground of the insufficiency of the evidence was a judicial and not a clerical error. That is, it is gratuitously assumed by appellant that when the trial judge announced that a new trial would be granted he made no mention of the ground upon which it was ordered, and that, therefore, the failure of the first minute entry to specify that the new trial was granted upon the *505
ground of the insufficiency of the evidence to support the verdict was not a mistake of the clerk but an error of the judge. Aside from the two minute entries, there is nothing whatever in the record on appeal to show any of the circumstances under which either entry was made. There is nothing in the record on appeal to show that, in ordering the new trial, the trial judge did not specifically direct the clerk to specify in his minute entry of the order that it was made on the ground of the insufficiency of the evidence to support the verdict. This being the condition of the record we must presume that the trial judge did direct the clerk to specify in the original minute order that the new trial was granted on the ground of the insufficiency of the evidence to support the verdict, or that he in some way communicated to the clerk the fact that insufficiency of the evidence to support the verdict was the ground upon which the order was made. We must presume that, through clerical misprision, the clerk failed to make the entry as directed, or to make it in conformity with the judge's announcement, and that it was for that reason that the court, in the exercise of its inherent power to cause its acts to be correctly recorded, directed the entry of the second order. An appellate court never indulges in presumptions to defeat an order or a judgment. On the contrary, every intendment is in favor of the validity and regularity of the order or judgment appealed from. The burden of overcoming this presumption is upon the appellant, and where the record is silent, it will be presumed that what ought to have been done was not only done, but rightly done. (Niles v. Gonzalez,
What we have said is a sufficient reply to appellant's claim that the second minute entry was made without notice to him. Where there is nothing in the record to *506
amend it by, there may be some question as to a judge's right to resort to his recollection, and, ex mero motu, direct the clerk to correct the entry of an order or judgment. But assuming, without deciding, that notice was essential in this case, the record on this appeal does not show that notice was not given. To uphold the validity of the order, we must indulge every presumption not controverted by the record. The supreme court of Nebraska, in Brownlee v. Davidson,
Our conclusion is that, upon this appeal, we must treat the second minute entry as a correct record of the order as originally announced by the trial judge; and since that entry specifically states that the order is granted "on the ground of the insufficiency of the evidence to support the verdict, in that it appears from the preponderance of the evidence that the plaintiff was guilty of contributory negligence," the order must be affirmed unless we can say that in granting the new trial the court abused its discretion.
[4] Upon the issue of contributory negligence there was some conflict in the testimony. But while an appellate court will not review a verdict where the evidence shows a substantial conflict, the trial court is guided by very different considerations. If the trial judge, notwithstanding a conflict in the testimony, is satisfied that the verdict is against the weight of the evidence, he may, indeed he should, grant a new trial, although upon the same conflict an appellate court would be bound by the verdict. And even though there be no conflict in the testimony, the probative force and effect of the evidence is ultimately for the determination of the trial judge upon the hearing of a motion for a new trial. (Meinberg v.Jordan,
[5] If we rightly understand appellant's position, his claim is that the principles just announced by us are not applicable where contributory negligence is the issue. In support of that contention we are referred to Schneider v. Market Street Ry.Co.,
The cases cited by appellant are in entire harmony with these views. In Schneider v. Market St. Ry. Co., supra, the trial court had denied defendant's motion for a new trial. *508 In that case the supreme court held that to justify anappellate court in disturbing the verdict it must affirmatively appear to that court, as a matter of law, from the undisputed facts, that the plaintiff was guilty of contributory negligence. [6] This is so because it is the province of an appellate court to pass on questions of law, not questions of fact; and that court, therefore, may not set aside a verdict on the ground of the plaintiff's contributory negligence unless, from the undisputed facts, it can see that the plaintiff has not exercised such care as men of common prudence usually exercise in positions of like exposure and danger. But, as we have seen, the trial judge possesses a much wider power. He cannot rest upon a conflict in the evidence, but must weigh and consider the evidence introduced by both sides and determine for himself the just conclusion to be drawn therefrom. (Green v. Soule, supra.)
It would subserve no useful purpose to state at length the facts of the case as they are shown by the record. After carefully reading the evidence touching the question of contributory negligence, we are convinced that fair and impartial men might reasonably differ in their deductions from the evidence, and we therefore cannot say that there is basis for the claim that the trial judge abused the discretion which the law has wisely vested in him.
The order appealed from is affirmed.
Works, J., and Craig, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 7, 1922.
All the Justices present concurred.
Richards, J., pro tem., and Myers, J., pro tem., were acting. *509