Kauffman v. De Mutiis , 31 Cal. 2d 429 ( 1948 )

EDMONDS, J.

The propriety of an order granting a new trial upon the ground that a witness subpoenaed by the plaintiff did not appear for examination is challenged by the defendant, who obtained a verdict in his favor. The question for decision concerns the construction and application of section 657 of the Code of Civil Procedure insofar as it authorizes a new trial because of “accident or surprise.”

The action is for damages because of personal injuries received in an automobile collision. Rudolph Erends, a locomotive engineer, witnessed the accident. Eight days before the trial, he was interviewed by Charles E. Koller, one of defendant’s counsel. When Erends stated that he had not been subpoenaed by the plaintiffs, Koller served him with a subpoena. But Koller told him that, after further consideration of the evidence, he would notify him as to whether or not he need appear at the trial. Five days later, Erends was subpoenaed by the plaintiffs.

Erends was not present at the trial. According to the affidavits presented on behalf of the plaintiffs, their counsel had planned to use him as a rebuttal witness. After the defendant had rested, counsel found that he was not present, and they reached him by telephone at the railroad roundhouse in another city. At that time, Erends stated “that he had planned to attend the trial ... in response to subpoenas served upon him, but that he had been notified by telephone that it would not be necessary for him to appear in court; that ... he was scheduled to leave immediately on a railroad run as locomotive engineer and that it would ... be impossible for him to . . . appear at the trial. ...” Erends’ statement in regard to his failure to appear is that he “received a telephone call from a person unknown to him and was advised by said person that it would not be necessary for him to appear in court in response to said subpoenas; . . . .”

In affidavits submitted by counsel for the defendant, it is said that on the day before the trial commenced, Koller, an attorney associated with Kroloff, endeavored to reach Erends by telephone at the railroad roundhouse. Erends was not there, Koller was informed, but a message could be left for him. Koller then identified himself as the attorney who had subpoenaed Erends to appear “on behalf of the defendant Joseph B. De Mutiis at a trial that was commencing in Auburn [on the following day] . . ., and that it had been decided that . . . Erends would not be needed as a witness for the defendant and that he need not answer to the subpoena given to him by Mr. Koller in behalf of the defendant.”

There is no suggestion that Erends’ failure to appear in response to the subpoena served upon him by the plaintiffs was due to anything other than a misunderstanding of the message left by Koller. As stated by Koller in his affidavit, at no time, either directly or indirectly, did he say that Brends should ignore any subpoena other than the one served on behalf of the defendant.

Kroloff declared in his affidavit that after the plaintiffs’ attorneys learned that Erends was not present, there was a discussion between counsel. Kroloff then suggested to Harris, it is said, “that if he was desirous of having the witness testify, that he should request a continuance of the case for that purpose; Mr. Harris immediately retorted that he did not intend to have the ease continued for that purpose, but that if anything went wrong he would file affidavits with this court in support of a motion for a new trial. ...”

When the court reconvened, Harris did not request either a continuance or the issuance of a bench warrant, nor did he advise the court as to what had occurred. He had the bailiff call the witness and, when there was no response, proceeded to present his rebuttal evidence. The next day the case was argued and submitted to the jury, which returned a verdict in favor of De Mutiis. Thereafter, the plaintiffs made a motion for a new trial based upon all of the statutory grounds and supported by affidavits. The motion was granted upon the sole ground of “accident or surprise which ordinary prudence could not have guarded against and by which plaintiffs were prevented from having a fair trial.” (Code Civ. Proc., § 657.)

Upon his appeal from that order, De Mutiis contends that the trial court abused its discretion in granting the motion for a new trial. Under the undisputed facts, he argues, there was no accident or surprise within the meaning of the quoted code section. And to allow a plaintiff a new trial when no continuance or other relief was asked at the time when he knew that a witness was not present gives counsel opportunity to speculate on a favorable verdict. The plaintiffs’ reply that abuse of discretion is not shown because they had no opportunity calmly and deliberately to determine the effect of the failure to call Erends as a witness.

“ The terms ‘accident’ and ‘surprise,’ although not strictly synonymous, have, as used in legal practice, substantially the same meaning, as each is used to denote some condition or situation in which a party to a cause is unexpectedly placed, to his injury, without any default or negligence of his own (see Bouvier’s Law Dict.; Anderson’s Law Dict.), which ordinary prudence could not have guarded against. (Code Civ. Proc., § 657, subd. 3.) ” (McGuire v. Drew, 83 Cal. 225, 229 [23 P. 312]; Jennings v. American President Lines, 61 Cal.App.2d 417, 429 [143 P.2d 349, 144 P.2d 54]; Porter v. Anderson, 14 Cal.App. 716, 726 [113 P. 345].) However, where a situation arises which might constitute legal surprise, counsel cannot speculate on a favorable verdict. He must act at the earliest possible moment for the “right to a new trial on the ground of surprise is waived if, when the surprise is discovered, it is not made known to the court, and no motion is made for a mistrial or continuance of the cause.” (Bailey v. Richardson, 66 Cal. 416 [5 P. 910]; Heath v. Scott, 65 Cal. 548 [4 P. 557]; Dewey v. Frank Bros. & Co., 62 Cal. 343; Ferrer v. Home Mut. Ins. Co., 47 Cal. 416; Delmas v. Martin, 39 Cal. 555; Doyle v. Sturla, 38 Cal. 456; Schellhous v. Ball, 29 Cal. 605; Turner v. Morrison, 11 Cal. 21; Baker v. Berreman, 61 Cal.App.2d 235 [142 P.2d 448]; Bradbury Estate Co. v. Carroll, 98 Cal.App. 145 [276 P. 394]; Denvir v. Judson Frt. Forwarding Co., 86 Cal.App. 369 [260 P. 846]; 1 Haynes New Trial, §76 et seq.; 20 Cal.Jur. 69, 74; 39 Am.Jur. 158.)

Plaintiffs concede that a litigant must take prompt action when he is confronted by the absence of a material witness, but they argue that they were excused from asking for a continuance because they did not have time for discreet deliberation as to the effect of not calling Erends. As authority for their position they rely upon Delmas v. Martin, supra. However, in Ferrer v. Home Mut. Ins. Co., supra, the Delmas ease was expressly limited to its facts, and it has no application here. Delmas sued to quiet title, and a deed by one Davidson conveying to him the land in dispute was the last evidence introduced. The defendant claimed surprise because that deed was made some years after a prior conveyance of the same property to him by Davidson. The subsequent deed had not been recorded; Martin had no knowledge of it and was not prepared to meet it. The court held that a new trial should have been granted, stating: “It may well be, that in the last stage of a jury trial, at the conclusion of the evidence, sufficient opportunity may not have occurred to enable the defendants and their counsel to decide, deliberately and discreetly, what course it was proper to pursue in respect to the last item of proof which was offered in the cause. We perceive nothing in the record to justify the belief that the defendants and their counsel were not acting in good faith in omitting to apply for a continuance, and are satisfied that they were guilty of no laches. ...” (Delmas v. Martin, supra, at p. 558.)

An entirely different situation is shown by the record now being reviewed. Here the plaintiffs and their counsel knew before they commenced the presentation of rebuttal evidence that Erends would be unable to attend. The attorney for De Mutiis suggested a continuance so that Erends could testify. Opposing counsel, in the presence of the plaintiffs, stated “that he did not intend to have the case continued for that purpose, but that if anything went wrong would file affidavits ... in support of a motion for a new trial.” This amounts to an express statement that the plaintiffs intended to speculate upon a favorable verdict. As this court said in an early case: “Not till after the decision did they present the view of surprise; and we think it was then disappointment rather than surprise;. ...” (Dewey v. Frank Bros. & Co., supra, at p. 347.)

Although it is well settled that the granting or denial of a motion for a new trial is discretionary with the trial court and its determination will not be disturbed even though this court might be inclined to rule differently if passing on the motion de novo (Mazzota v. Los Angeles Ry. Corp., 25 Cal.2d 165 [153 P.2d 338]; Koyer v. McComber, 12 Cal.2d 175 [82 P.2d 941]; Fennessey v. Pacific Gas & Elec. Co., 10 Cal.2d 538 [76 P.2d 104]; Whitfield v. Debrincat, 18 Cal.App.2d 730 [64 P.2d 960]), the power is not absolute. As stated by Mr. Justice Carter in Slemons v. Paterson, 14 Cal.2d 612, 615 [96 P.2d 125]: “This rule has no application where the affidavit or other evidence upon which the order is made furnishes no basis for the exercise of such discretion.” To the same effect are Dewey v. Frank Bros. & Co., supra, and Baker v. Berreman, supra.

The order granting a new trial is reversed.

Gibson, C. J., Traynor, J., Sehauer, J., and Spence, J., concurred.