Fahey

Plaintiff appeals from the order of the trial court granting defendant Madden’s motion for a new trial. [1] The motion was made on all the statutory grounds. It appears from the briefs that the only ground argued in support of the motion was the insufficiency of the evidence to justify the verdict. The order granting a new trial does not specify the ground upon which it was granted and, therefore, under the provisions of section 657 of the Code of Civil Procedure, it must be presumed that it was not based upon the ground of insufficiency of the evidence to sustain the verdict.

[2] At the close of plaintiff’s case the respondent moved for a nonsuit and after all the evidence of both parties was concluded he renewed his motion and also requested the court to instruct the jury to find for respondent. Both motions were denied and the request for an instructed verdict was refused. In reviewing these rulings, notwithstanding the provisions of section 657, the evidence may be examined to ascertain whether it is sufficient to make a prima facie case for the plaintiff. (Carter v. Canty, 181 Cal. 749 [ 186 Pac. 346 ]; Beeson v. Schloss, 183 Cal. 618 [ 192 Pac. 292 ] ; Williams v. Bullock…

I concur upon the ground that the court erred in giving said instruction and I desire to add a few words in reference to the opinion in Randolph v. Hunt, 41 Cal. App. 739 [ 183 Pac. 358 ]. Therein it could be said properly, as pointed out by this court and also by the supreme court, that a conflict existed in the showing as to agency. Even, if the inference arising from the ownership of the machine should not be considered sufficient when standing alone, it was strengthened by certain circumstances, which are indicated in the opinion. It may be added that an inaccuracy occurred therein in the use of the term “presumption" in the discussion of the proposition. Correctly speaking, it is not a presumption but rather an inference, as clearly shown by the presiding justice in the main opinion herein. The terms are sometimes loosely used as interchangeable, but, of course, there is a clear distinction between them when accurately employed.

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 April 24, 1922.

All the Justices concurred.

Waste, J., was absent and Richards, J., pro tem., was acting.