Calkins v. Gossard

CECIL M. CALKINS, Respondents, v. DR. EARL J. GOSSARD, Appellant.

COUNSEL

Harry D. Parker, Raymond G. Stanbury, White McGee, Jr., and Vernon W. Hunt for Appellant.

Richard A. Dunnigan for Respondent.

OPINION

Gould, J., pro tem.

Plaintiff sued defendant for damages for personal injuries resulting from a collision between plaintiff's motorcycle and defendant's automobile. Trial by jury resulted in a verdict for defendant. Plaintiff's motion for new trial was granted by the trial court and defendant presents this appeal from the order so entered.

Ten grounds, including four specifications of insufficiency of the evidence, were enumerated in the motion for new trial. [1] In the order granting the motion, however, it is not specified that it is made upon the ground of insufficiency of the evidence, and it therefore will be presumed that the order was not based upon that ground. (Code Civ. Proc., sec. 657.)

[2] Examination of the transcript on appeal reveals that the evidence is not insufficient in law to sustain the verdict and that it is not without conflict upon any material point. We are therefore precluded from considering whether or not the evidence is sufficient to sustain the verdict. (Read v. Pacific Electric Ry. Co., 185 Cal. 520 [197 P. 791].)

[3] As to the other grounds stated in the motion for new trial, the record reveals nothing to support them. No affidavits were presented and no assignments of misconduct or [9 Cal. App. 2d 262] irregularity were made, and the record is wholly silent and negative with respect thereto.

It follows that the order granting a new trial should be and the same is hereby reversed.

Crail, P. J., and Wood, J., concurred.