Casner

Two appeals are here for disposition: (1) An appeal from a judgment for the defendant Market Street Railway Company, entered June 30, 1937, and (2) an appeal from a judgment for the defendant Daily News Company, Ltd., entered July 2, 1937.

Motions to dismiss these appeals on the ground that they were taken too late were denied. (Casner v. Daily News Co., Ltd., 12 Cal. (2d) 402 [ 84 Pac. (2d) 1032 ].) In the opinion on those motions, referring to the judgments appealed from herein, it was said at pages 405 and 406: “Whatever irregularity or illegality may have attended the action of the triai court in ordering the entry of judgments on a directed verdict after the discharge of the jury (questions which are, of course, not here decided), it is clear that the judgments so *412 entered effectively terminated the trial proceedings in favor of the defendants ...” It was held that the appeals had been taken in time and inferentially that they could not be disposed of on their merits on the motions to disfniss.

On the merits of the appeals it is clear that said judgments were erroneous and that the opinion of the District Court of Appeal, First Appellate District, Division Two, prepared…

Ordinarily, a dissenting opinion upon a question concerning procedure only adds uncertainty in a field where the profession’s aim should be toward simplification. But the decision of the majority in the present case, it seems to me, gives a plaintiff rights which are not consistent with fair dealing and strikes down long established principles relating to the administration of justice.

The result is reached by the application of the supposed rule that there can be no judgment rendered upon a directed verdict unless the jury actually proceeds, under compulsion of the court, to return the prescribed verdict. This rule is derived from certain language in the case of Vitimin Milling Corp. v. Superior Court, 1 Cal. (2d) 116 [ 33 Pac. (2d) 1016 ], quoted in the majority opinion. If on its facts that case were in point, I should be reluctant to question its controlling effect herein. However, as will be seen, not only are the facts of the two cases substantially dissimilar, but the proposition stated in the Vitimin Milling Corp. case is in flat conflict with expressions in prior decisions of this court and the District Court of Appeal, none of which was considered in the opinion. Under…