JOSEPHINE DORSEY et al., Appellants, v. VINCENT BARBA et al., Respondents.
S. F. No. 18369
In Bank
Feb. 4, 1952
38 Cal.2d 350
James F. Galliano, C. Paul Paduck, Henry Teichert, Gerald P. Martin, Clark & Heafey, Edwin A. Heafey, Augustin Donovan and Louis B. De Avila for Respondents.
GIBSON, C. J. — This action was brought to recover damages for personal injuries sustained by plaintiffs Dorsey and Anderson in an automobile accident. They sought recovery against Vincent Barba as operator, and Catherine Barba as registered owner, of the car which collided with the one in which they were riding. The jury returned verdicts against Vincent but in favor of Catherine, and judgment was entered accordingly. Thereafter, pursuant to a conditional order made on plaintiffs’ motion for a new trial, the court, with Vincent‘s consent, modified the judgment against him by increasing the amount of damages awarded. Plaintiffs, who did not consent to the increase, have appealed from the modified judgment against Vincent and from the judgment in favor of Catherine.
LIABILITY OF CATHERINE
The automobile, which was purchased with community funds, was registered in Catherine‘s name alone, and she testified that Vincent “had it put in my name so that I would feel that half of it belonged to me and the other half belonged to him.” Defendants separated, and a property settlement agreement was entered into by which Catherine transferred “all of her right, title, and interest” in the car to Vincent. The agreement was approved by an interlocutory decree of divorce signed about three months prior to the accident. Before the separation Vincent drove the car to and from work and used it whenever he desired, and it was in his possession when the agreement was made. The car was never
It is clear, however, that a person may be liable as an owner under
There can be no question that at the time of the accident Vincent was driving the car with Catherine‘s permission, but she contends that any consent she may have given was ineffective because she lacked power to give her husband permission to use the car since he had the right of management and control under
The foregoing cases may be distinguished, however, because none of them involved the situation here present where the car was registered in the wife‘s name alone and she in fact consented to her husband‘s use and operation of it. Under these circumstances, the wife should not be permitted to claim that she was without power to give such consent.
The requirements for registration were enacted in the interests of public welfare, and one of the purposes for the legislation is to afford identification of vehicles and persons responsible in cases of accident and injury. (See Henry v. General Forming, Ltd., 33 Cal.2d 223, 227 [200 P.2d 785].) Where the registration shows the names of both husband and wife, their identity is disclosed as contemplated by the statute, and, if an accident occurs while the husband is driving, there may be some justification for permitting the wife to explain and amplify the record by showing the true status of her ownership. On the other hand, where, as here, the registration
It appears from the foregoing that the record establishes as a matter of law that Catherine was liable, to the extent provided by
PROPRIETY OF ORDER INCREASING AWARDS
The verdicts against Vincent apparently made no allowance for damages for pain and disfigurement suffered by plaintiffs since the amounts awarded were insufficient to cover medical expenses and loss of earnings. Plaintiffs’ motion for new trial was denied on condition that Vincent consent to a modification of the judgment increasing each award in an amount fixed by the court. The figures arrived at exceeded the special damages proved and apparently included some compensation for pain and disfigurement. Vincent agreed to the increases, but plaintiffs’ assent was not required or given. The primary question concerns the propriety of the court‘s action in assessing damages without plaintiffs’ consent.
Plaintiffs contend that the amounts fixed by the court are inadequate and that, since the damages are contested and uncertain, the act of the court in increasing the jury‘s award without their consent constitutes a denial of their right to a jury trial in violation of
The constitutional guarantee does not require adherence to the letter of common law practice, and new procedures better suited to the efficient administration of justice may be substituted if there is no impairment of the substantial features of a jury trial. (People v. Hickman, 204 Cal. 470, 476 [268 P. 909, 270 P. 1117].) An essential element of such a trial, however, is that issues of fact shall be decided by a jury, and the assessment of damages is ordinarily a question of fact. The jury as a fact-finding body occupies so firm and important a place in our system of jurisprudence that any interference with its function in this respect must be examined with the utmost care.
There is a conflict of authority as to the extent of a court‘s power to increase the amount of an inadequate award over plaintiffs’ objection. Some jurisdictions do not permit the exercise of such a power. (Lemon v. Campbell, 136 Pa. Super. 370 [7 A.2d 643], citing Bradwell v. Pittsburgh & W. E. P. R. Co. 139 Pa. 404 [20 A. 1046]; see Watt v. Watt, L. R. [1905], A.C. 115, 119-121.) Some allow it where damages are liquidated or can be ascertained by a fixed standard. (Rudnick v. Jacobs, 9 W.W.Harr. (Del.) 169 [197 A. 381, 383, 384], discussing Massachusetts and Michigan decisions; Kraas v. American Bakeries Co., 231 Ala. 278 [164 So. 565, 570].) Other jurisdictions apparently allow the court to assess increased damages as a condition to denying a new trial without regard to whether damages are liquidated or unliquidated. (See Markota v. East Ohio Gas Co., 154 Ohio St. 546 [97 N.E.2d 13, 18-19].)2 The Wisconsin rule permits a court to in-
The leading authority on the subject is Dimick v. Schiedt, 293 U.S. 474 [55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150] which held that a federal court could not increase a jury‘s award without the consent of both parties. The decision points out that the practice was not recognized generally at common law, and that an attempt by the court to fix damages over plaintiff‘s objection constitutes a violation of the Seventh Amendment to the United States Constitution which provides that “the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.” State courts, of course, are not bound by the Seventh Amendment (Pearson v. Yewdall, 95 U.S. 294, 296 [24 L.Ed. 436]; Walker v. Sauvinet, 92 U.S. 90, 92 [23 L.Ed. 678]), and it is true that there is some difference in language between that amendment and the parallel provision of the California Constitution.3 The reasoning of the Dimick case, however, is applicable here since both the state and federal Constitutions adopted the existing rules of common law with regard to trial by jury, and the variation in language does not warrant a different interpretation of the state Constitution.
In support of the practice of denying a new trial over the plaintiffs’ objection on condition that defendant consent to pay an increased amount, it has been said that the constitutional guarantee is satisfied when the plaintiff has had one jury trial and that the court‘s exercise of its power to grant or deny new trials will not be disturbed in the absence of an abuse of discretion. (See dissenting opinion Dimick v. Schiedt, 293 U.S. at 492-498, 55 S.Ct. at 303-305.) However, it is not the mere form of a jury trial to which one is entitled under the Constitution, but the fundamental right to have a jury determination of a question of fact. It is, of course, clear that there has been no denial of such right if a verdict is set aside and motion for new trial granted. (Estate of Bainbridge, 169 Cal. 166 [146 P. 427]; Ingraham v. Weidler, 139 Cal. 588 [73 P. 415].) But it does not follow that, in lieu of ordering a new trial, the court may itself assess damages on conflicting or uncertain evidence and modify the judgment with the assent of only one party. Neither can such procedure be justified as a proper exercise of the court‘s authority to prescribe terms in granting or denying motions for new trials. A court may not impose conditions which impair the right of either party to a reassessment of damages by the jury where the first verdict was inadequate, and the defendant‘s waiver of his right to jury trial by consenting to modification of the judgment cannot be treated as binding on the plaintiff.
It is true that a court has power to require reduction of a jury‘s award over the defendant‘s objection as a
Arguments to the effect that courts should be permitted to increase awards without the plaintiff‘s consent because such procedure is more expeditious and would constitute an improvement over established practice might be persuasive if addressed to the people in support of a constitutional amendment, but they are not appropriate here.
The judgment is reversed as to both defendants.
Shenk, J., Edmonds, J., Carter, J., and Spence, J., concurred.
SCHAUER, J., Concurring and Dissenting. — I agree that the modified judgment should be reversed as to Vincent; I would, however, affirm the judgment as to Catherine. She lacked the power to forbid Vincent‘s use of the car and, hence, as a matter of law she could not in any legally material sense consent to his use of it. (See Krum v. Malloy (1943), 22 Cal.2d 132, 135 [137 P.2d 18]; People v. Forbath (1935), 5 Cal.App.2d Supp. 767, 769 [42 P.2d 108].)
TRAYNOR, J., concurring and dissenting. — For the reasons stated in the majority opinion, I agree that the judgment in favor of Catherine Barba should be reversed. I dissent, however, from the holding that the courts of this state do not have the power of additur.1
I
It is incongruous that plaintiffs should base their appeal upon the ground that they have been denied a constitutional right to jury trial. Although they had a jury trial, they do not want a judgment entered on the jury verdict. They attack that verdict and ask the court to rescue them from it by granting a new trial before another jury. The right to a jury trial, however, does not include the right to a new trial.
Plaintiffs’ erroneous reliance upon the constitutional guarantee results from a failure to recognize the dual character of the right to jury trial.
Unwillingness to interfere with the jury‘s decision was likewise a controlling consideration in the first California case to discuss the constitutional function of the jury with respect to the assessment of damages. In Payne v. Pacific Mail S. S. Co., 1 Cal. 33, a tort action decided in 1850, the evidence on the issue of damages was conflicting, and the jury returned a verdict for $1,000. The trial court ordered a new trial unless the plaintiff consented to a remittitur of $400, but the plaintiff refused and appealed from the order granting a new trial. In unanimously reversing the action of the trial judge, this court said: “Courts with great reluctance ever interfere with the finding of a jury in an action for unliquidated damages for reason that the damages are excessive, and a court ought never to set aside a verdict for such a cause, unless, beyond doubt, the verdict be unjust and oppressive, obtained through some undue advantage, mistake, or in violation of law, as upon questions so peculiarly pertaining to the powers and investigation of the jury, it ought to be presumed that the verdict of the jury is correct. . . . The right of trial by jury in civil as well as criminal cases, being secured by the Bill of Rights, and believing as we do, that it is the duty of this court to remove every obstacle in the way of a free exercise of its right, and that it should not be interfered with on the part of the courts, except for the reasons above alluded to, and that in the end, however just it may have appeared to the court below to set aside this verdict, great abuse, if not the destruction of this right, would ensue, we are of the opinion that the order of the court of First Instance, granting a new trial, should be reversed.” (1 Cal. 33, 36-37.)
The following year, the Payne case was expressly approved in George v. Law, 1 Cal. 363, 365, which was decided under circumstances even more directly analogous to the present
These early English and California cases show clearly that when the constitutional right to jury trial was established it was regarded as a protection to parties relying upon a verdict. Not until today has this court undertaken to extend that protection to parties who attack a verdict. It is true that new trials because of excessive or inadequate damages are more frequently granted now than a century ago (cf. Holmes, The Common Law, pp. 122-129), but it is also true that this modern practice constitutes a limitation upon the former powers of the jury. Whatever may be the basis of a party‘s right to a new trial on the ground of inadequate damages, it is obvious that such relief is granted in spite of, rather than because of, the constitutional right of trial by jury.
II
In an attempt to overcome the fact that plaintiffs have already had their jury trial, it is contended that there has been thus far only a formal compliance with the constitutional requirement; it is said that plaintiffs have yet to be accorded the substance of the right to jury trial — “the fundamental right to have a jury determination of a question of fact.” Unquestionably, the practical effect of additur is to give plaintiffs a judgment based, as to amount, upon a finding made by the trial judge. Moreover, the mere fact that plaintiffs have benefited from the disagreement between judge and jury is not of itself a sufficient answer to the claim that the judge had no authority to make such a finding.
Under appropriate circumstances, judges constitutionally may, and constantly do, determine fact issues. The broad scope of this fact-finding activity refutes the contention that the framers of the Constitution regarded the jury as the
It is apparent that these many instances of judicial fact-finding cannot be reconciled with what plaintiffs claim is the underlying principle of jury trial. In reality the explanation of the right to jury trial is neither logical nor theoretical — it is historical.5 The jury system developed in England over a period of centuries, and during that development many fundamental changes took place; at no time was the system wholly consistent within itself. The framers of the Constitution wisely refrained from attempting to rationalize into a single principle the conflicting rules relating to juries. Their object was not to perfect the jury system but to perpetuate it, and the right they established was therefore a limited one — the right to have a jury trial of certain questions of fact under certain circumstances. Expan-
In deciding the issue of constitutionality, therefore, we must be governed by an historical standard. At the time of the American Revolution, would plaintiffs have had the right to a reassessment of damages by a second jury? They would have had no such right simply because, as has been seen, the first jury‘s determination of the amount of damages was conclusive. The reexamination of the damages issue following an inadequate verdict in cases of torts against the person is a modern development unknown to the common law. Moreover, there is every reason to believe that the English judges of the late 18th century would have utilized the additur device, had they been willing to give plaintiffs’ motion any consideration at all.
It must be borne in mind that plaintiffs are in this court on an appeal from the trial court‘s ruling on their motion for a new trial on the ground of the insufficiency of the evidence to support the verdict. Two of the well-established principles governing the disposition of such motions are of particular importance.
1. The granting of new trials on the ground of the insufficiency of the evidence is discretionary with the court.7 Such new trials developed in the 17th century after punishment of jurors and the harsh remedy of attaint had fallen into disuse. (1 Holdsworth, History of English Law, 3d ed. p. 225; Thayer, Preliminary Treatise on Evidence, pp. 169, 172.) Equity had undertaken to relieve against unjust verdicts, and, in seeking to protect their jurisdiction from the encroachment of the chancellor, the common law courts themselves began to set aside verdicts that were inequitable. (Bright v. Eynon, 1 Burr. 390, 394-395, 97 Eng.Rep. 365, 367; 5 Holdsworth, History of English Law, 3d ed. p. 301;
By their motion for new trial, therefore, plaintiffs in effect appealed to the conscience of the court. They cannot complain that the court, viewing all the equities of the case, has selected a more expeditious and less costly method of remedying the alleged injustice of the verdict. The trial judge‘s solution is reasonable and equitable — plaintiffs are entitled to no more.
2. New trial orders are frequently conditional. At common law a typical condition was that the moving party pay the costs of the first trial. (Bright v. Eynon, 1 Burr. 390, 97 Eng.Rep. 365; see, also, Rice v. Gashirie, 13 Cal. 53, 54.) According to Blackstone, the moving party might even be required to consent to a change in the rules of evidence at the second trial. (3 Bl.Com. 392 [Jones ed. p. 2005].) New trials have also been conditioned upon payment of the opposing party‘s counsel fees (see Brooks v. San Francisco & N. P. R. Co., 110 Cal. 173, 174 [42 P. 570]) and upon consenting to go to trial at a particular term of court. (Nelson v. Devney, 102 F.2d 487, 491.) Similarly, new trials have been refused on condition that the opposing party remit excess damages
There are dicta in some of the common law cases to the effect that the verdict of a jury can be reexamined only by a second jury. (See, for example, Bright v. Eynon, 1 Burr. 390, 393, 97 Eng.Rep. 365, 366 [K.B. 1757].)8 It is clear, however, that in making such statements the judges had in mind only the liability issue. On that issue there are but two possible verdicts, and the court can change the jury‘s decision only by making a directly contrary finding. Invariably the party relying on the verdict would oppose such a change, and to protect that party it was held that any reexamination of the liability issue must be before another jury. An entirely different situation is presented, however, by a motion for a new trial on the ground of excessive or inadequate damages — a situation not considered by the common law judges. In such a case the court is not limited to a complete reversal of the jury‘s determination and may decide to make only a modification. The party relying on the verdict may prefer that modification to the expense and delay of a new trial; his consent removes the necessity for a second jury.
III
Although few courts have ruled directly on additur, remittitur has been accepted in almost all states where the question has arisen. (See 53 A.L.R. 783-792; 95 A.L.R. 1166-1168.) Remittitur has been allowed in California for over 100 years. (George v. Law, 1 Cal. 363, 365; Hughes v. Hearst Publications, Inc., 79 Cal.App.2d 703, 704 [180 P.2d 419].) The majority opinion concedes that “There may be no real
To hold remittitur constitutional and additur unconstitutional is not only illogical — it is unfair. In the present case plaintiffs are being given a new trial as a matter of right, and yet, if the second jury allows excessive damages, the trial judge, with plaintiffs’ consent, can select a lesser amount and require defendant to pay it. I doubt whether such a procedure accords a defendant the equal protection of the laws.
There is nothing unusual in the fact that early cases permitting remittitur are to be found whereas additur precedents are both few and recent. Courts undertook to grant new trials for excessive damages many years before similar action was taken on the ground of inadequacy. (See McCormick on Damages, pp. 72-73; Washington, Damages in Contract at Common Law, 47 L.Q.Rev. 345, 365, n. 7; 46 C.J. 207-213, §§ 152-154.)9 The issue of additur, therefore, was not presented until modern times. Nevertheless, additur is an equally logical step in the growth of the law relating to unliquidated damages.10 When the party relying on a verdict consents to a modification by the court, whether that modification be a reduction or an increase, the necessary constitutional protection has been provided.
The remittitur cases attest not only the constitutionality of additur but its practical value as well. Remittitur became an established rule of the law of damages as soon as the practice of setting aside excessive verdicts became general.11 It has been utilized in innumerable cases to avoid, for both the parties and the courts, the expense and delay of repetitious litigation. In the field of inadequate verdicts, additur can be of similar value.
IV
The majority opinion relies upon Dimick v. Schiedt, 293 U.S. 474 [55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150], in which the United States Supreme Court held that additur violates the federal Constitution. That decision is not controlling here, for the Seventh Amendment is not binding upon the California courts. Moreover, there are persuasive arguments for rejecting the reasoning upon which the Dimick case rests.
The restrictive character of the Seventh Amendment language has more than once led the federal courts to follow anomalous rules in dealing with judicial supervision of juries. Thus, it has been held that a federal judge, sitting in a jury case, could direct a verdict when the evidence as a matter of law was conclusive, but could not enter judgment notwithstanding the verdict after he had erroneously failed to direct the verdict and the jury had erroneously found for the opposing party. (Slocum v. New York Life Ins. Co., 228 U.S. 364, 399 [33 S.Ct. 523, 57 L.Ed. 879].) The reason for this distinction was that, after a verdict has been returned, a federal court is limited by the second clause of the Seventh Amendment to the formal procedure of the common law. Since the California Constitution guarantees only the substance of jury trial, judgment notwithstanding the verdict is available in this state in cases where directed verdicts are proper. (
It is apparent that in the Dimick case the problem of constitutional construction facing the United States Supreme Court was materially different from that presented here. (See 44 Yale L.Jour. 318, 324-325.) The court concluded that additur involves a reexamination of the damages issue after
Even under the narrow language of the Seventh Amendment, the United States Supreme Court had great difficulty in reaching the conclusion that additur is unconstitutional. The decision in the Dimick case was by a bare majority of five Justices, and Justice Stone, with whom Chief Justice Hughes and Justices Brandeis and Cardozo concurred, filed a well-reasoned dissenting opinion. The dissent emphasizes the broad discretion of the common law judges in ruling on new trial motions, the essential identity of additur and remittitur, the dangers of too rigid a construction of constitutional provisions, and “the generally recognized advantages of the practice as a means of securing substantial justice and bringing the litigation to a more speedy and economical conclusion than would be possible by a new trial to a jury. . . .” (293 U.S. 474, 490 [55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150].)