The opinion
Ross, J.:
The opinion delivered by Department Two in this case is here approved and adopted, but we think that instead of directing judgment to be entered for the defendant on the findings, the cause should be remanded for a new trial.
The power so to do is expressly conferred on the Court by Section 53 of the Code of Civil Procedure, which declares: “The Supreme Court may affirm, reverse or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had.” * * * (See also Argenti v. The City and County of San Francisco, 30 Cal. 463 ; Pollard v. Putnam, 54 id. 630.)
Of course this power must be exercised in a proper case; and the appellant here contends, as was contended in Enrichs v. DeMill, 75 N. Y. 375 , that as the findings of fact were not excepted to, they are to be taken as absolutely true, and as assented to by both parties. But to this we answer, as did the Court of Appeals of New York, in the case cited, that it must be remembered that the plaintiff obtained judgment in the trial court upon the findings as they stood, and was not called upon to except to them, or to insert the evidence in the case to show that they were controverted. And we also agree with *472 the same Court, where it says, in another case—Griffin v. Marguardt, 17 N. Y. 28—“ that extreme caution ought to he exercised in refusing new trials where judgments are reversed. The discretion of the appellate Court should he exercised in that direction only in cases where it is plain either from the pleadings or from the nature of the controversy, that the party against whom the reversal is pronounced, cannot prevail in the suit.”
In the present case, the counsel for the respondent asserts that when the findings were settled they objected to the finding in respect to the custom and usage of the Pacific Mail Steamship Company with reference to the voyages of their steamships between San Francisco and Hong Kong, and that if judgment had been against the plaintiff, they would have impeached it by bill of exceptions, bringing up the evidence. As that usage and custom is an important fact in the case, we are of the opinion that the cause ought to be remanded for a new trial.
Judgment reversed and cause remanded for a new trial.
Morrison, C. J., and McKee, Myrick, and Sharpstein, JJ., concurred.