*1 obligation escape voluntarily from the which he undertook obligation penalty. that such under the claim is There is why adjudicate reason the courts should that which the no free, voluntary their have determined solemn and act.
Judgment affirmed. J.), J., J., (W. McComb,
Wood concurred. Dist., Apr. 25, 13442. Second Div. No. Two. [Civ. 1942.] al., et Respondents, HARRIETT JOHN CRANDALL McGRATH, Appellant. J. Appellant. Hughes for W.
James Respondents. for Betts & Garrison appeal on this for decision The question MOORE, P. J. new granting a its abused discretion the court whether *2 re only. The verdict damages single issue upon trial the the amount than less $100 was turned established. order, contending that the court’s appeals from Defendant in evidence the “irreconcilable conflict” because of the upon all granted be liability new trial should the a issue issues. may be vacated provided statute that a verdict
It is granted part all or a new trial part whole or Proc.) long It has been estab (§ 657, of the Civ. issues. Code court, of the trial where power lished that it is within the a separable, to the of a are distinct and issues cause it others. refusing new as the Such trial of one issue while showing a an order the absence of will be reversed Hildebrand, ante, (Adams p. 117 an abuse of discretion. v. (2d) 80].) judge having P. The trial heard [124 having injury action, all personal the evidence in a convinced, peculiar been position he is to know that gained by relitigating nothing could be the issue of though the His damages. decision dissatisfied with award of granting single issue is on the ordinarily (Tu final. discretion and should be exercise melty ; 530 Stages, App. v. Peerless 96 Cal. Pac. 430] [274 (2d) 986]; 410 Resta, App. Amore v. Di 125 Cal. P. [13 Muir, 521].) 118 Robinson v. 151 Cal. Pac. [90 It has likewise been established that determination judge the issues of and of as to whether so as to that new inseparably are blended require issues, trial, granted all, granted at all of if question of the trial court also committed the discretion (Amore Resta, supra) Di will decision not be dis v. whose plainly apparent it that such appeal dis turbed unless (Adams Hildebrand, v. supra; cretion has been abused. Rigell Lewis, 97].) 1 App. (2d) (2d) P. Cal. More [37 over, goes if providing any rule further that sub produced by stantial conflict exists as between the evidence respective parties, of the trial the order is conclu- (Ibid.) sive. order to obviate the rule laid statute down
foregoing authorities, defendant conflict in insists of the instant case is so irreconcilable as to make rules exception this case an He above bases announced. contention Miller, decisions in upon Wallace v. Cal. App. (2d) (2d) 745], P. v. Market and Bencich [78 Ry. Co., (2d) Street (2d) P. 398]. reading of cases readily those discloses that the authors opinions were satisfied that verdict returned was result of unwarranted concessions of convictions members consequently it grave would work a injustice upon the defendant limit only. of damages issue it Under such circumstances practice deemed to be better the issue as against inquiry should not forever appeared closed that'the verdict of a free and unrestricted collaboration of minds least of at nine jurors. study Prom a authorities, last two cited we (1) deduce the rule where the record that there discloses *3 actually jurors were nine who were the convinced of negligence of the and defendant negligence that his was proximate plaintiff’s injuries, (2) cause of the or where the of issues and are so inseparably blended fairly that one proof cannot tried without of the other: in either of trial such events the should both issues. proof
But of defendant’s proximate fact that was cause of the accident over whelming, confining then the decision of damages only to the should not be dis on appeal. turbed Under such circumstances we should with may interfere the order. The conflict irreconcilable because the witness who behalf of testified on directly defendant contradicted the witnesses who testified on behalf of in which event both narratives could showing any difficulty not be true. There is no experienced in establishing have been of defendant. immediately preceding Proof of the events collision of presented two automobiles was four on witnesses behalf strangers plaintiffs, three whom utter were to
441 defendant behalf of Proof offered wholly disinterested. and testimony. his own was occupied of the car Robinson was driver The witness driving east on testimony, while According his to plaintiffs. Avenue, speed was his Woods approaching Sixth Street directions looked both hour. He per 15 about miles point reached a car had front his After the slowed down. 40 feet McGrath’s car intersection he saw 10 east feet 40 miles of about going speed at Avenue north Woods to the collision. At change prior did not per hour, which 2 5 going about car was impact, time of the Robinson’s students corroborated three per hour. Robinson was miles Notwithstanding slight High School. Garfield observations, the substance of the respective in their variations approached testimony Woods of each of them is that hour; per 10 to 15 miles speed of about Avenue at Avenue and into down Woods car thundered McGrath’s per hour; 40 speed miles intersection at car, of his near the attempted to veer direction McGrath right fender struck intersection, his front center headlights of car which the Robinson left front fender hour; moving per 5 to 10 miles cars was then at about along together the curbs both sides parked were close higher two Avenue, the middle of which is about feet Woods curbs. than the surface at the negligent he was same issues as whether
On injuries, plaintiffs’ caused negligence proximately whether his wholly unsupported. in his own behalf was McGrath way he a funeral According testimony his his early. On get chapel approaching Gar- and anxious to speed miles School, per he diminished High field he was feet north of the Robinson car while He saw hour. west of the inter- that time it was feet and at Sixth Street intersection, Robinson was ; entered the section that as he car at the center west; when front of his feet inter- *4 feet out of Street, Robinson’s car of Sixth slowing McGrath that Robinson was When saw section. into the Robinson crashed the left when down, he turned to Robinson’s car shoved impact car. The of right side of his west; Robinson feet McGrath car several front of the impact. ear before did swerve against pales weighed testimony significantly when This plaintiffs. witnesses for the that of the four order is is denied. The affirmed. The motion for diminution McComb, J., concurred. Dissenting. J.), J., In this action (W. I dissent.
WOOD re Addie Robinson seek plaintiffs Harriett Crandall and they auto injuries suffered when an damages for which cover an by defendant collided with automobile driven mobile they Robinson, in were rid L. G. which owned and driven granting plain ing. an order appealed Defendant has from single of of a trial on amount tiffs new awarded. Among injuries plaintiff Crandall as suffered lacerations, jaw, three fractures of the collision were injuries injury Among an her knee. suffered plaintiff cheek concussion Robinson were a fractured bone and Special proved of were the brain. physicians’ the sum of for and nurses’ $585.67 services hospitalization expenses. to be no appears and medical There injuries conflict in the suffered or as to evidence as jury damages incurred. The case was tried with a which in the plaintiff a verdict favor rendered Crandall plaintiff sum of the sum $435.64 and favor $50.22, parties being for $485.86. the total both presented Plaintiffs a motion trial on for new the issue damages only presented and defendant a motion a new for trial on all court motion but issues. The denied defendant’s granted plaintiffs’ thereby motion and limited the new trial single damages. issue of amount that,
Defendant. contends since the evidence on the issue alleged conflicting defendant’s and since the jury undisputed awarded a sum special damages, less than the the trial court limiting erred in single damages. my issue of In opinion the decision Wallace Miller, (2d) (2d) 745], P. is determina- question. tive of the plaintiff suffered in the sum $120.25 for medical repairs bills and for $203.64 to his automobile. plaintiff returned verdict for the sum On plaintiff $120.25. motion of the granted on the question damages only. The reviewing order, this pointing court reversed out that *5 strength question equal of about the evidence was if should plaintiff, recover, entitled to that the and damages an amount and all of his been awarded have injuries. The personal compensate him for sufficient to namely question, primarily important that “the court held jury” defendant, negligence was not determined all issues a new trial on that failure and the court’s discretion.” arbitrary reasonable refusal exercise a was “an & Metal Donnatin v. Hardware upon Union The court relied 26, 845], 177 Pac. Pac. Co., App. Cal. [175 Pac. Ry. (2d) 518 Co., v. Market St. Bencich jury (2d) 398], it “The verdict of the which is said: guilty found, effect, that defendants were yet contributory negligence free plaintiff from grossly inadequate, furnishes which were allowed 11, convincing case, supra, page Donnatin proof as said in the agreement, ‘that in order to reach ah the verdict was made of unwarranted concessions of convictions jury, each of which con opposing of two factions of the one scientiously in the prevail believed that defendant should equally opinion action other conscientious in the plaintiff the in should recover commensurate with ’ juries uncertainty sustained. ... view of this fact that clearly something other than question jury, must have actuated the some of or verdict, them arriving justice a low at such substantial requires (as case, supra, 11), Donnatin page said just receive, ‘. . . compensation plaintiff what if he is entitled to all, recover at can best be determined trying jury the whole case one and one instead before “splitting up” judges between different and different ” juries. . . .’ similarity striking in the facts case now before us bear a Miller, supra. to the facts in the of Wallace v. The testi- mony sharp of the drivers of two automobiles was in being conflict, the statement of each if believed liability. agree I sufficient to excuse him from cannot with opinion majority proof statement contained that the “overwhelming.” defendant’s Nor was testimony support of defendant the evidence. without photographs Defendant introduced in evidence three argues automobiles involved in the properly collision and now sheriff, deputy give strength to Ms contentions. they headlights that both by defendant, testified called a witness glass and that he found car were broken and thus, Avenue, Woods west curb feet east debris argument giving de- according corroboration to to counsel’s only partially testimony fendant’s that the Robinson car The fact impact. the intersection at the time discrepan- testimony schoolboys, of three contained which *6 not, cies, was favorable to contentions does holding my opiMon, justify reviewing overwhelming in as a matter of law the evidence was favor only party. either distinction can be made between the Wallace v. Miller and the ease now before us is Miller reviewing the Wallace v. case the court stated equal strength.” “of about evidence The true rule to derived from the decision Wallace Miller therein relied that where the evi- eases conflicting support dence is sufficient to verdict favor either party returns a for less than verdict special damages new trial uncontroverted granted on all of the issues. petition rehearing for a May 22, 1942. Wood denied
(W. J.), J., rehearing. Appellant’s petition voted for a for a hearing by Supreme 1942. 19, Court was denied June Edmonds, J., hearing. voted for a Apr. Dist., 25, No. 3534. Div. Second Two.
[Crim. 1942.] PEOPLE, Respondent, THE W. MONT v. CHARLES
GOMERY, Appellant.