I dissent. The record shows that plaintiff was awarded damages by the verdict of a jury against defendants, master and servant, the former’s liability resting entirely upon the doctrine of respondeat superior. Thereafter the trial court granted the master’s motion for a judgment notwithstanding the verdict and the servant’s motion for a new trial. The judgment notwithstanding the verdict was reversed and the order granting a new trial was affirmed on appeal. (Gardner v. Marshall, 56 Cal.App.2d 62 [132 P.2d 833].) Plaintiff then dismissed the action against the servant. The master’s motion for a new trial after entry of the judgment on the verdict was denied. The master has appealed. In affirming the order granting the new trial as to the servant, the District Court of Appeal said nothing more than that it was properly grcmted upon some of the statutory grounds. (Gardner v. Marshall, supra, 67.) The new trial was granted on all of the grounds stated in section 657 of the Code of Civil Procedure except insufficiency of the evidence.
In arriving at the conclusion that the judgment against the master must be reversed, the majority opinion states: “It must now be taken as established by the verdict and by the *693decision on the former appeal that Marshall was an employee of the corporate defendant at the time of the accident, that he was then acting within the scope of his employment, and that he was guilty of negligence which was the proximate cause of the plaintiff’s injury.” And “By a process of elimination, then, it must be concluded that Marshall’s new trial was ordered and could be justified only on the ground of excessive damages. If the damages awarded were excessive as to Marshall it would necessarily follow that they were likewise excessive as to his employer. And since it has been conclusively established in this case by the ruling on the former appeal that Marshall’s motion for a new trial was properly granted it must follow that his employer’s motion for a new trial should also have been granted.” And “but since he (servant) was originally a party defendant his dismissal before the second trial could not prejudice the right of his employer to rely on the record theretofore made in the case to show that he was only secondarily liable, that if the damages flowing from the employee’s primary liability were excessive as to him they were likewise excessive as to the employer and that the latter’s motion for a new trial should have been granted.” (Italics added.)
Turning first to the last above quoted excerpt, it would seem that the majority of the court is of the opinion that the master’s rights were prejudiced by the dismissal of the action against the servant. It is not claimed, however, that the master could be prejudiced in any way except where the granting of the new trial as to the servant was necessarily upon some ground which also affected the master’s liability. The majority opinion then attempts by a process of elimination to find the ground upon which the new trial was granted as to the servant, with the assumed premise that in order to reverse the judgment against the master, the new trial must have been granted upon some ground which affected the master’s liability. If there is a ground upon which the new trial could have been granted as to the servant which had no relation to the liability of the master then the judgment against the master must stand. Such a result would not be prejudicial to the master for many reasons. Obviously, the plaintiff need not have made the servant a party to the action, and certainly, he was entitled to dismiss the action as to him after he made *694him a party. Plaintiff having those rights, the master cannot be prejudiced by their exercise except in the situation where there might be inconsistent judgments; that is, a judgment against the master but in favor of the servant where the issue is one that necessarily affects the master’s vicarious liability. In the instant case if there had been no dismissal of the action against the servant the retrial of the action against him might have resulted in a judgment favorable to him and hence inconsistent with the judgment against the master, but that will not happen because the action against the servant will not be retried. It is dismissed. How can it be said that the master is entitled to the benefit of the new trial granted as to the servant when because of the dismissal there will be no retrial as to the servant? Indeed it is immaterial whether the order for a new trial was based upon some ground affecting the master’s liability. The effect of the dismissal is to wipe the cause of action against the servant from the record. The proceeding is back in the same condition it would have been if plaintiff had sued the master alone.
But if we assume that the master is entitled to the benefit of the order granting a new trial as to the servant, certainly it must first be determined that that order was based upon a ground which affects both the master and servant. The order was made on all of the grounds provided by statute except insufficiency of the evidence. The precise ground does not appear. If it is supportable on any ground it must be assumed that the court granted the servant’s motion on some ground that did not affect the master’s liability. Otherwise the denial of the master’s motion for a new trial would be error. A trial court is not presumed to act erroneously. On the contrary all presumptions are in favor of the correctness of its action. Hence, if there is any error for which the servant’s motion for a new trial could be granted without affecting the master, that ground must be presumed to be the one relied upon. I suggest two such grounds. There may be more. There may have been misconduct on the part of plaintiff’s counsel such as suggesting that the servant was insured or was a wealthy man well able to pay any verdict rendered against him. Neither of those statements would prejudice the master or be error as to him. Yet they would entitle the servant to a new trial. The record does not show that such misconduct occurred but neither does it show it did not occur. *695It does not contain the arguments to the jury. We should presume that the trial court acted correctly and therefore that such error existed in the absence of anything in the record to the contrary.
Furthermore, the majority opinion, by the process of elimination, determines that the motion for a new trial as to the servant must .have been granted upon the ground of excessive damages. If such was the case, then a new trial should be ordered on the issue of damages only instead of requiring the plaintiff to establish again all of the other issues in the case.
In my opinion the judgment should be affirmed.