147 Cal. App. 2d 43 | Cal. Ct. App. | 1956
Plaintiff and appellant was employed by Kaiser Steel Company (hereinafter referred to as Kaiser) in the early part of April, 1952, and was then a member of defendants and respondents United Steel Workers of America, Local 2869 and United Steel Workers of America. He was discharged by Kaiser on April 19, 1952. Defendant Brunton was an agent of the other defendants, had office space, and as such, maintained a grievance room at Kaiser’s plant. Plaintiff was on a so-called “probationary status” to him.
Plaintiff’s complaint is in three counts, (1) in tort alleging that defendants wrongfully procured his discharge; (2) in contract, alleging the constitution and by-laws of defendants constituted a contract between them, and defendants violated it in procuring his discharge; and (3) in contract, alleging breach of an oral agreement between plaintiff and the defendants by inducing Kaiser to discharge plaintiff. Damages are sought for claimed loss of seniority in defendants’ union, loss of benefit of membership, companionship, loss of convenience, for mental anguish and humiliation, and for exemplary damages.
The matter was heard before a jury. Plaintiff called several witnesses under section 2055 of the Code of Civil Procedure in support of his claim, and as to the general setup in the
Plaintiff testified he had no “unsavory record” in the Bast, was not on so-called probation to Brunton; that he had
Plaintiff produced the witness for whom he was campaigning. He testified he talked to defendant Brunton about plain
Defendants produced no witnesses except those testifying under section 2055 of the Code of Civil Procedure. Motions for nonsuit and a directed verdict for defendants were denied. In the absence of the jury, the judge stated that if the jury decides the case in favor of the plaintiff he would grant a new trial on the evidence produced. The jury returned a verdict against defendants for $15,000 and on a motion for a new trial the court granted it upon all statutory grounds, including insufficiency of the evidence. The appeal is from this order and the principal claim is that the court abused its discretion in so doing.
As we view it, plaintiff contends that since all the evidence produced by plaintiff was testimony of his own witnesses and those called under section 2055 of the Code of Civil Procedure, there was no conflict in the testimony, that there was no evidence that would support a verdict in defendants’ favor, and accordingly, the evidence should be judged as though ruling on a motion for nonsuit, citing Weck v. Los Angeles County Flood Control Dist., 80 Cal.App.2d 182,191 [181 P.2d 935]; and de laFalaise v. Gaumont-British P. Corp., 39 Cal.App.2d 461 [103 P.2d 447], We see no merit to this contention. It is apparent from the record that the trial judge, after hearing all the evidence produced, was -of the opinion that a nonsuit might be allowable, but that he preferred to decide the question of the sufficiency of the evidence on a motion for new trial, where the law allows a much wider discretion.
In Otten v. Spreckels, 24 Cal.App. 251 [141 P. 224], it was held that the plaintiff in a civil action must establish his case by a preponderance of proof, but although many witnesses may testify directly in favor of his position, and no adverse testimony may be directly adduced, it is still with the jury, in the first instance, and finally with the trial court where a new trial is asked on the ground of the insufficiency
Here, the trial court had the right to disbelieve certain testimony and reasonably conclude that the evidence was insufficient to support a finding that defendants wrongfully and unlawfully procured the discharge of plaintiff from Kaiser. It further affirmatively appears, even from plaintiff’s testimony, that he failed and refused to first pursue the remedy provided by the constitution and by-laws of the union in reference to his grievance, before resorting to the courts for redress. (Zepeda v. International Hodcarriers etc. Union, 143 Cal.App.2d 609 [300 P.2d 251].) A review of the entire testimony produced fully justifies the action of the trial court.
Order granting a new trial affirmed.
Barnard, P. J., and Mussell, J., concurred.
A petition for a rehearing was denied January 8, 1957, and appellant’s petition for a hearing by the Supreme Court was denied February 13, 1957.