*1 promise reliance on the during lifetime the decedent provide and reward implied, to decedent, actual the trial court It was for death.” on his her for services plaintiff's witnesses in the evidence to resolve the conflict plaintiff whether and defendant’s witness rooming restaurant, store rendered services in decedent’s her bur- plaintiff sustained determine whether house, and to compensate her promised proving that decedent den expectation of her services because and that she rendered regard her monetary because of decedent. reward and not to the cited eases first the reference As indicated determinations opinion the factual paragraph here. trial court conclusive judgment above stated the is affirmеd. For the reasons J., Shenk, J., Carter, J., Traynor, J., and Gibson, C. J., Spence, concurred. judgment.
Edmonds, J., concurred in the Aug. 13, In 21850. Bank. A. No. 1952.] [L. al., Respondents, v. LEIPERT, Minor, etc., et DENNY al., Appellants. et M. BERNARD HONOLD *2 & Forgy, Forgy, Bradley Reinhaus Arthur M. and S. M. Appellants. Reinhaus for
Harvey, Rimel & Johnston and Fred D. Johnston for Res- pondents. p. 11 m., 13, 1948, March about two
TRAYNOR, J.On traveling teen-age children were west automobiles loaded Newport Beach. one in Highway 101 near along U. S. one, The other by Edwards. front was driven Clifton riding, driven Leipert, 15, plaintiff Denny dark by parents owned it. It Phillip Duff, 18, whose hour a half before sprinkled night, and it about had Duff steering apparatus caused A in the accident. defect the left across car, it swerved to control so that lose opposite highway. by car driven was struck It John Honold. Plaintiff direction Woodrow defendant Duff Denny Leipert ocсupant of the car were and one other including the were injured; children, driver, the other five who only passenger, Brady, Eleanor killed. Honold and his injured. wife, is now his his Denny brought through Leipert, action Charles J. part guardian alleging negligence litem, father ad Denny’s John father also sued on Woodrow Honold. own Bernard expenses. behalf for of medical reimbursement doing as George Honold, M. Honold B. Honold business joined defendants; owned Mortuary, Brothers car driven had consented Woodrow John Honold and *3 using to it his on this The case was consolidated occasion. brought wrongful against for trial with four death actions parents the same the of who were defendants the children killed. conflicting. Denny sharply testified that evidence was Duff, travelling per hour; that about miles
the car was sоmething steering wrong with the said there was the driver acting shortly thereafter “the wheels started apparatus; that jerked shimmying”; car across they that “the funny, started stop”; a that wheels to “Our front road, and we came road”; just off the away and we were about off the road quick”; that the “put on brakes driver that driver looked put one foot out and over the “opened his door and “got car”; the driver out and top the hood of that you he kids got again, said, in and then ‘Some then back going try up and back it get car,’ so he was out of wrong, and what and he told side of the road see got open ‘get I the door about’ inches and me out’ and happened”; and he was knocked guess I that’s when it that he Duff He testified that estimated that unconscious. In stopped about seconds befоre it was struck. car had figure how he re- to the he arrived at this answer accident and scene of the plied: “Well, I went down to the and I get watch, went somebody I had behind me with stopped, and through it the actions that car did when person me, in back ‘That did, what we and then I told the thirteen sec- was about when the car it was about and hit/ got onds.” Duff car out just He that before the testified yards ahead; car from 20 control, the Edwards that the when car started shim- applied brakes mying ; highway skid, that it went as across the “it didn’t just it tipped squealing sound”; “it making and was you go sounded like when fast with a around a corner too car, squeal.” it will he did not see sort He testified that the Honold car before the collision.
Defendant Woodrow John Honold testified that he first saw the Edwards and they Duff cars when were about yards to 250 away; that passed he and at first car same swung the other over; moment car it first came angle across sharply then road; turned across the that he away was 100 to 125 feet from it when started that, across; lights its eyes; moving flashed his that it rapidly; that he was traveling from 40 hour; to 50 miles an that as the car Duff tightened turned in front of him he his grip on the wheel and right; turned to the he did not put on brakes; and that moving the other car was when the two cars collided. eyewitness Oakes, other was Jim accident boy riding who was the rear seat of the Edwards car. He testified that he looked back and saw the Honold ear car; hit the Duff right angles “the Duff car was at got I road, back, just looked I glimpse lights it, car on Honold and then hit and it kind of up ”; lifted the car he that when looked back Edwards car point was abоut 900 feet from collision. No one car Edwards heard the collision. sergeant
A the Newport Beach Department Police an officer of Highway the California Patrol testified that at point vicinity of either car were there skid *4 marks. Smith, officer, expert
Lieutenant traffic as an called by plaintiffs. direct examination On was asked if he had he opinion formed an as to whether not Duff car “was moving impact.” replied had, at the moment He that he objection giving but opinion defendants’ to his his was sus- 466 Honold car was travel- gave opinion that He his
tained. objection hour, defendants’ an of 45 miles ing in excess “minimum or maximum” opinion as giving his to to his gave opinion He Duff car was sustained. speed traveling 40 a car to miles on cross-examination present case, 1-ikethose in the road conditions hour, under feet without within hundred stopped be could not application of brakes. plaintiffs in verdicts in favor of the jury returned
The Leipert case, Denny was awarded In the five actions. all jointly and, in against all three defendants $500 Denny’s alone; against Woodrow John Honold addition, $700 against jointly. $1,000 all three defendants father was awarded The Lei- for a new trial was denied. motion Defendants’ damages only trial on the issue perts’ for a new motion The Denny and denied as his father. granted as for a new that “the said motion order stated trial court’s insufficiency ground evi- upon the granted is justify the verdict that the amount awarded dence to conformity adduced at evidence inadequate though inadequate far and is not so the trial prejudice.” appealed Defendants have рassion or to indicate granting Denny a judgment and from the order from the appeals taken in the other four trial. No partial new actions. appellate power of a trial or court to order generally recognized fewer than all the issues
new trial on C.J.S., Trial, p. 87; 39 New (see 11, Am.Jur., New § 21, p. 44; 941), 98 A.L.R. and is authorized statute Trial, § (Code Proc., §§657, 662.) Civ. in this state. purpose expedite of limited retrials is to the ad by avoiding costly repetition. justice
ministration Such granted, if it is clear that however, retrials should (Gasoline Champlin Products Co. v. injustice will result. 494, Co., 513, ; 75 L.Ed. Refining U.S. S.Ct. 1188] 88.) ex C.J.S., Trial, §11, p. courts have see 66 New Some negligence cases, sug limit new trials in pressed reluctance only rarely step proper (Simmons such a gesting 563, Ann. Cas. 1912D Fish, 102, 210 Mass. N.E. ; Murray 503, Krenz, Conn. A. California, where new trials limited to the issue Even in injury frequently apprоved personal damages have been request wrongful actions, been held that a death it has cau- a trial be considered with the utmost such should
467
Co.,
(Donnatin
Cal.App.
& Metal
38
v. Union Hardware
tion
Ry. Co.,
Market
845]; Bencich
St.
8,
26,
11
P.
177 P.
v.
[175
398])
P.2d
doubts
Cal.App.2d
20
528
and
518,
[67
complete
be resolved in favor of
a
trial.
should
858].)
21
(Keogh Maulding,
Cal.App.2d 17,
v.
52
P.2d
[125
limiting
appropriately
decision
the new
judge.
presumed
It
is
rests
discretion
.the
weighed
passing upon
motion he
the evidence
has
the possibility
prejudice
de
defendant. His
appeal
will not
cision
be reversed on
unless
abuse of dis
Stages,
is
(Tumelty
Cal.App.
cretion
shown.
v.
96
Peerless
Resta,
410,
532
125
530,
;
Cal.App.
P.
Amore v. Di
[274
430]
986];
Cal.App.2d 193,
413
P.2d
13
v. Wilcox,
[13
Sanford
Tripcevich
194
;
Compton,
Cal.App
P.2d
v.
25
.2d
[56
548]
191
188,
286];
Co.,
P.2d
art v.
33
Southern Pac.
Cal.
[77
Hof
App.2d 591,
Tyrone
602
436];
P.2d
v.
Power Enter
Cox
[92
prises
Inc.,
Cal.App.2d 383,
829];
P.2d
Adams
[121
Hildebrand,
Cal.App.2d
117,
; Hughes
P.2d 80]
Schwartz,
Such an abuse shown when inade quate, close, record of liability discloses that the issue other prob indicate circumstances that the verdict was ably the of prejudice, compromise result or sympathy, or some liability actually other reason the issue has not been determined.
There can doubt that awarded plaintiff Denny Leipert inadequate. Forty fifty or required stitches scalp close the lacerations his forehead, partially remain pelvis which will scarred. His broken places; complete. was in two one fracture was There a system was definite shock brain and nervous con trolling eyes. rupture bladder, He also suffered of the a which necessitated operation an abdominal that left a con siderаble amount of scar tissue in and around bladder. hospital He was confined three about weeks and then was removed his home, where he remained in bed six or another seven weeks. after Several weeks he returned low-grade he home suffered a infection, bladder which was probably injuries. Approximately result of five months elapsed from date accident before he was able to go about his usual activities. readily apparent
It also from the record that the issue very close. The Duff car and the Honold high- approaching each other on curved-four-lane car were got way night. When Duff car out of control a dark wrong side, the driver of the other car and crossed demanding rapid situation reactions. confronted moving path into the Duff cаr was other Whether long stopped enough it had car when it was struck whether reasonably operator was struck to enable a careful before it car crucial of the other to avoid collision testimony stopped car was in the case. The that the Duff *6 15-year-old it was was that of a 13 seconds before struck boy the who was knocked unconscius at time and who was in going “through later timed the actions that the car did testimony stopped when it and what we did.” of Jim The car, presented jury also boy Edwards the in the Oakes, the “If fact. Plaintiff contends Ed- question of the with a close traveling per hour at miles it was was wards automobile immediately if second and before the per covering 58.7 feet broke, the Duff automobile the two steering mechanism lengths approximately apart, few car only a vehicles were elepsed between time when the have the would seconds passed point the where the collision sub- Edwards automobile point arrived at the from which sequently and Jim occurred argue occur.” Defendants that this the collision Oakes saw speed take consideration the of the into contention does plaintiff the testified that “there were Duff fact that the car, Duff ear” or the fact that there were on in the no brakes They vicinity either car. conclude no skid marks Duff collision were true the plaintiffs’ “version the that if application of and the brakes came car coasted without the momentum. This would mean that stop by the loss of forty speed per at starting at least miles Duff car the stop. to a The momеntum gradually hour lost came they consider difficulty is that with the calculations accept that, impossible the conclusion car. It is Edwards high- on the application of brakes or skidmarks without the travelling least 40 miles way, had been at car, Duff stopped suddenly stopped remained per hour, nine while the Edwards car travelled seconds, least thirteen hundred feet west.” difficulty jury great that the had
The record shows probably was questions these that its verdict and indicates compromise. of a result p. m. m. it jury went out at 11:30 At 4 returned The a. testimony of Lieutenant part to hear that asked car the Duff question whether relating crucial Smith testi- His occurred. the collision moving stopped or when was his jury, read to mony was on direct examination stipulated not. Counsel testimony was on cross-examination testimony. There- his was an accurate statement that it given had Smith jurors that Lieutenant after two insisted the Duff question whether testimony bearing other impact. time of moving stopped car or at the you” been read to testimony point has said, “The on that testimony apparent jury and sent the out. It is infer- supports the jury not read to witness impact, moving instant ence that the Duff car was at the contrary in- supports a testimony read whereas that was reading request ference. Defense counsel did not (See testimony objection comment. additional make or Cal.App.2d 77, Son, Duncan v. J. H. Corder & however, is not important consideration, testi- having whether the court error in not committed mony jury, but the fact that cross-examination read testimony read jurors interest of the having two finding difficulty in jury having great indicates that any negligence part Honold. of Woodrow John p. and announced m. the returned
At :17 wrongful death cases In each of had reached its verdicts. *7 jointly $5,000 against all defendants the verdicts awarded three In against Honold. Woodrow John $300 and an additional verdict, Denny Leipert $4,000 Leipert the the awarded case $300 against jointly and an additional all three defendants Lei against Honold, John and awarded Charles J. Woodrow against pert against $1,000 all three defendants. award The per maximum the owners of the Honold ear exceeded the polled by Code, jury The was mitted Vehicle section 402. answering they verdicts, more than that three Leipert jurors In five answered not their verdicts. case The juror “No” and one “half half no.” yes, answered incomplete court announced and then that verdicts in read section 402 of Vehicle and the rest of an Code explaining The applied. struction how the section was to be jury jury again brought returned to in room and was p. m., they at 11:30 when the could foreman announced that juror not reach a Upon inquiry verdict. each expressed agree. opinion they would be unable to jury again After considerable discussion the sent out. was jury At 12:33 a. m. the returned with a in this action verdict awarding against all defendants Denny Leipert three $500 against jointly, Woodrow John Honold. $700 additional jury again polled in The was and it stood nine to three favor of the verdict. jury hours, including out 13 the time out for lunch half
and dinner. After it was four and a hours it asked out to have reread. material evidence on the issue repudiated Five later hours it returned verdict that was jurors. by six of the Three later it and one-half hours brought in awarding $1,200 instead nine-to-three verdict $4,300 provided proposed in the earlier verdict. long by any deliberation could have not been caused dispute regard in Denny’s to in- and extent nature juries. parents regard expenses After his testified with to questions incurred in treatment, were asked on cross- examination. No to evidence was introduced defendants testimony Denny contradict or his father regard Denny’s injuries. Any to the nature or treatment difficulty difficulty must have arisen from a cause other than regard injuries. to the and extent of his It is nature true apportionment was confused on the damages under Vehicle Code also 402, section true great it had difficulty determining or not whether defendant negligent Woodrow John Honold was only after prolonged disagreement a 9-3 verdict returned awarding grossly inadequate damages.
We strongly have concluded that the record in case so inadequate Denny Leipert that the indicates verdict compromise the result of unjust that it would be to defend- damages. ants have a new trial limited the issue of appealed judg have from
Although defendants arguments appeal from limited their ment, they have They Denny Leipert a trial. granting limited new the order trial, a limited new order seek reversal necessary judgment if that and a reversal -of they Moreover, expressly new trial. have preclude a limited they judgment if order reversed wish the stated that expressly have stated that wish to stand. Plaintiffs also may judgment if a limited not be had. to stand judgment move They appeal from the and did not did *8 complete in event a limited new trial for a new trial vigorously urged in denied; they have should tended “the action of the trial court be restricted to denying granting motion made” and that either as
471 appellate jurisdic neither the trial court nor the courts have complete new trial on the tion to order a basis of that motion.. clear, therefore, parties deliberately It is that all have waived any rights judgment. to a reversal of the Under these cir judgment cumstances, (Estate should be affirmed. Hinde, 561]; 200 710, Galvin, Cal. 715-716 P. Hatch v. [254 441, 443; Co., Cal. Hartman v. Pedro San Commercial Cal.App.2d P.2d [153 granting order a new judgment trial is reversed. The
is affirmed. Bach party appeal. is to bear his own on costs
Gibson, Shenk, J., Edmonds, J., C. J., J., Sehauer, and Spence, J., concurred.
CARTER.
I dissent.
holding
majority
оf the
of this
two
.companion cases,*
effect,
statutory
nullifies the
provision
(Code
Proc.,
657)
Civ.
expressly
§
authorizes the trial
grant
court to
a motion for a
“part
new trial on
of the is
sues,’’ when such new trial
is limited to the issue of dam
ages only in cases
damages
where the
awarded are deemed
inadequate by the trial court. While there is no code sec
tion which expressly specifies inadequancy
as a
ground for granting a motion for a new trial,
it has been
held that it
purview
comes within the
insufficiency
of the
support
evidence to
judgment
(Code
verdict or
Proc.,
Civ.
[6];
Cal.Jur. 104).
being
§657
Such
the case, the same
rule
applied
should be
granting
of a motion on the
damages,
limited
to all issues.
The rule
type
being
latter
of cases
if
there is a conflict in the evi
dence,
though
even
overwhelmingly
evidence is
in favor
party against
of the
whom
motion is granted,
the order
of the trial court
a new trial
insufficiency
appeal
evidence will not be disturbed
(Brignoli
v. Seaboard
Transp. Co.,
ney Wierman, v. 143] [126 ; Petti Co., 148 35 P. son v. Const. Cal. 367] [82 California Fennessey 93]; P.2d grew O’Donnell, Cal.App.2d 502 [90 ; Co., & Elec. Cal.2d P.2d Gas Pacific 814]). From the Lamb, Cal.App.2d P.2d Simmonsv. necessarily exist foregoing follows that same reasons it limited sustaining in a new trial the trial court only granting of a new damages as to the to the issue of insufficiency ground of the evi trial on all issues from an erroneous instruc dence, prejudice or that resulted tion. in the majority concede is wisdom and merit there grant trial
legislation to a new which authorizes a trial court majority Then obvious. limited issues. should be This by deprive the court of proceed these three decisions to trial grant upon by to a trial power conferred it statute damages only damages on the issue of where the awarded obviously inadequate. step judicial pro take a backward in our
These decisions reactionary phil They products are the of that same cedure. majority a of this court osophy which has been invoked effort to accord power judges trial in their to curtail degree equal justice under greater a to the less fortunate (See Dry Co., Dock 36 Cal.2d Sanguinetti law. v. Moore can that the sole There be doubt majority only is the fear basis for these decisions greater might in awards plaintiffs that the these cases receive pre damages liability retried. To if the issue of than destroy effective majority willing this result the to vent legislation. What is the court-made ness of this remedial It majority apply accomplish this result? rule which the to majority there appears seems be if it to damages and the liability, in the evidence as to conflict for the is an abuse of discretion inadequate, awarded are grant motion for a new trial trial court to Or, trial court? damages only. leave Where does this plaintiff do greater is, what should a moment face of these Obviously, in the under such circumstances? stupid lawyer decisions, judge would three a trial or trial retrying anything other than all issues to consider though even injury circumstances, such personal action under difficulty jury had no positive had information issue of determining issue of and that IAnd it. problem which concerned expressing my utter amazement from at the cannot refrain attempting majority rationalize ineptness of the juries in these cases. Obvi- deliberations reactions of of this ously, such rationalization is not the function court. exclusively If function of the done, it must be it is experience court. Those who have had many eases know that factors influence the ultimate decision reached, position much and the trial is in a better than jurors prevailed. this court to know what factors Some have respect economics, while others have fixed views racial religious adversely may prejudices, which influence them justice. might the cause While the record disclose *10 leanings, they apparent such be trial would astute judge. majority the of in say, Yet this court cases here, judge guilty such as we have a trial of an abuse of grants discretion if he a on damages new trial the issue of only, though even he is inadequacy satisfied the of an damages award of was due to or one more the factors mentioned, above or other factor which had no bear- some ing on liability. whatever the issue of For this in- court to province vade the the trial in this field court as unwise unfortunate. example, For a man earning capacity with an of $300 per month, and a expectancy life of 20 years, who loses a leg in an thereby automobile incapacitated and is accident pursuing from occupation, by $10,000 jury. is awarded a present money At the appear value this would in- be adequate. But, majority would the so hold if a judge trial a by denied motion for a new plain- trial made tiff ground inadequate? that the award was It cer- tainly would not. But, if the grant trial court would such a motion the damages on only, majority issue of would obviously reverse if there was a conflict in the evidence liability. words, majority In other would hold the inadequate award as a matter of law in the latter if instance, but not so the motion for a new trial were denied granted on all foregoing issues. The results inescapable under specious reasoning opinions in the majority in these three cases. thing The that is made clear de- these cisions is that majority approve do not of a trial court granting a motion for a new trial on damages the issue of only in a case where damages inadequate awarded are and there ais in conflict liability. evidence on the issue of he new trial majority say, must a ease, there
In such a
all.
or none
all the issues
granted
the issue of
course, if
new trial
Of
a
trial court was of the
damages only case where the
damages
excessive,
the ma
opinion
awarded
They
jority
an order.
would
do
not disturb such
would
proof
would fear that
facts
reason
so for the
might
larger
dam
establishing liability
result in a
award of
(Fuentes
Tucker,
the defendant.
ages
the detriment of
31 Cal.2d
P.2d
[187
request
majority opinion
states “that
such
only)
be
damages
should
considered
(on the issue of
’’ citing
v. Union Hardware
caution,
Donnatin
with the utmost
P.
Co., Cal.App.
26, 177
P.
and Bencich
Metal
&
398],
Ry. Co., Cal.App.2d 518
P.2d
v. Market St.
plaintiff’s
court denied
motion
in both of these cases
asked
appellate
court was
to reverse
a new trial and the
on the issue of
judgment and
a new trial
direct
case the
Obviously,
be said that in such a
only.
it cannot
has
held
simply
a discretion but
trial court has exercised
granting
justifying
was no
the record
that there
error
opinion
majority
also states
for a new trial.
a motion
ruling
motion for a limited new
(in
“that
on a
doubts
complete
trial)
in favor of
should be resolved
Maulding,
Cal.App.2d
trial,” citing Keogh
such
majority opinion does not state whether
But the
858].
ap
trial court or
doubts should
entertained
passing
pellate
If
has a discretion
сourt.
the trial court
*11
trial,
majority opinion
for
as the
upon a motion
a limited
may
in
minds
concedes,
which
exist
of
then
doubt
limited new trial should
appellate
as to whether such
court
in
of
resolved
favor
the action
granted,
have been
should be
not the discretion of the
Otherwise,
of
court.
is
the trial
being
ruling on
in
the motion
exercised
court
trial,
appellate
for a limited new
discretion
power
re
court,
judicial system has no
under our
which,
gross,
ruling
unless there is a
view such a
of
trial court
(Hicks
discretion.
v.
manifest and unmistakable abuse of
;
Railroad, Inc., 18
P.2d
Shore
Cal.2d 773
Ocean
[117
850]
Conroy
Everts,
1059];
Perez,
P.
v.
Estate
475 Perry Fowler, Cal.App.2d v. 102 808 P.2d 466]; P.2d [229 Dexter, 121]; Cal.App.2d v. 100 521 P.2d 46]; Parks [224 Sherwood, Cal.App. 55 308 J. Levin Co. v. Sherwood & [203 ; ; Rigall Cal.App.2d 1 P.2d Lewis, P. v. 737 97] 404] [37 Spencer Cal.App.2d ; 84 61 Wold Nelson, v. P.2d 40] [190 League ; Amore Cross, Cal.App. 344 v. 107 P. 460] [290 Resta, v. Cal.App. ; v. Di 125 410 P.2d Johnstone [13 986] Hilde Johnson, Cal.App.2d 374]; 38 700 P.2d Adams v. [102 McGrath, brand, Cal.App.2d 80]; 51 117 P.2d Crandall v. [124 Francisco, Cal.App.2d 858]; 51 v. 438 P.2d Bauman San [124 42 v. Cal.App.2d ; 144 P.2d Tel. & Tel. Co. [108 989] Pacific Cal.App.2d Tumelty v. Wellman, 506]; 98 151 P.2d [219 Tyrone Stages, ; 530 v. Cal.App. Peerless 96 P. Cox 430] [274 Enterprises ; Inc., Cal.App.2d Power 49 P.2d 383 [121 829] Greyhound McNear 11 Lines, Cal.App.2d v. 63 [146 Pacific ; 25 ; Fox, Cal.App.2d P.2d Henslee v. 286 P.2d 34] [77 307] Reid, v. Cal.App.2d 449]; Zeller v. 26 Martin 421 P.2d [79 Donohue, ; 219 Yolo Cal.App.2d P.2d Ohran v. 913] [85 County, 40 Cal.App.2d 700]; P.2d Tornell Mun [104 son, Cal.App.2d 112]; Eitze, P.2d Woods v. Cal.App.2d ; Tripcevich Compton, P.2d Cal.App.2d 188 clearly
In the McGrath, supra, case Crandall v. the court and succinctly stated the basis for the in rule announced following the above cited in language: cases “The trial judge having all personal injury heard evidence in action, having been he peculiar posi- is in a convinced, gained by tion to nothing know that relitigating could be negligence though issue of dissatisfied with the award dam- ages. His decision single in a new trial on the damages ordinarily the exercise of discretion and should Tyrone be final.” In Enterprises the case of Cox v. Power Inc., supra, Mr. Justice Schauer, then a member the Dis- trict Court of Appeal, speaking unanimous case, position took a diametrically opposed to the position the majority at he said, case bar when page 390: “While amply supports evidence the conclusion inadequate, awarded we find do not that it justify such as contrary us in concluding, judge, compromised negli- gence by inadequate damаges. its award of Such a conclu- sion speculative this record would be more than inferential. here $1,250 response verdict plaintiff’s claim *12 for $450 bills, hospital doctors’ bill, general damages. $361 and hospital disputed, and the not doctors
The items for the seriously contested. The injuries but the extent special damages recovery for all verdict not awards general damages. That the dam- general but for includes $439 and its age seems obvious disproportionatetly small award is new order. But that for the trial inadequacy is the basis too we as low must merely regarded we the award because bargaining in- jurors themselves also stultified infer liability sequitur.” unjustified is a non damages adequate added.) (Emphasis ignores guid majority opinion The what is said to be the ‘‘ guiding prin ing principle in cases of charаcter: although ought ciple not to which is that, a verdict stand ought to illegality, with there be one tainted fair parties ought compelled to upon issue, tobe try against disposed a decision anew once of parties illegality Thus, no and the which can shown. annoyance, delay expense, have been state saved of re by a a retrial issues settled trial as which once of added.) appears.” (98 A.L.R. (Emphasis versible error Notwithstanding in the 941.) the rule announced above cited many majority cases, of which opinion, are cited majority in discre the case at bar hold “that an abuse of inadequate, tion is are the record shown when the liability close, discloses that issue of other circum probably stances indicate that the verdict was the result prejudiсe, sympathy, compromise other or that some actually reason the issue has not been determined.” No support foregoing statement, authorities are cited clearly contrary and it rule in all of the announced cited cases. above has held that the trial court very been few eases
In granting a motion for discretion abuse of committed an damages only. (Wallace Miller, the issue trial on Keogh v. ; Maulding, Cal. Cal.App.2d 55 P.2d [78 745] Inc., Rink 858]; Fresno Ice P.2d Shurman v. App.2d ; Alioto, Cal.App.2d 469 P.2d Crawford last cited cases Cal.App.2d 45 generally adopted has harmony rule been out Appeal the District Courts by this court and and followed cited, long decisions above all line of appears from newa justify reversal of an order hold gross, damages only there must be a mani on the issue part abuse of discretion and unmistakable fest *13 trial from court in motion. I shall such demonstrate the justification record this case that there is whatever holding the majority for of abused the that the trial court its discretion in this case.
It majority claimed on is the this is a close case liability difficulty and the jury seemed to some in ar- have riving present at pre- its verdict. There are which factors clude question liability that result. of The determined by the trial court to be clear rather close than and the other judgments in the judicata issue; ease are on only res the part confusion on the the of with reference to the limited of an owner of under 402 of a car section the Vehicle Code. here
There are actions involved were consolidated five personal injuries for trial, for four for the instant one persons. of injuries the deaths five The deaths all negligence caused same of the defendants and the verdicts against Except the damages, same defendants. for ident- presented ical issues in each case. motion Defendants’ insufficiency ground a new trial evidence of of Plaintiff, Denny was denied. Leipert’s, motion for a new inadequacy granted trial on of the only. denying In motion for a new trial on the defendants’ ground insufficiency of presumed it must evidence be weighed that the trial court on liability evidence and, like the jury, ample. concluded it was It is said: trial “The court grant may, and indeed should, motion new trial where grounds one of the of the motion therefor is insufficiency evidence, if it is satisfied that decision verdict or is supportеd by, contrary or weight to, is of the evi- dence, although conflicting point evidence is or points issue, since, passing upon trial, motion for new the trial court must weigh and consider the of both evidence parties, just and determine for itself the conclusion to be drawn. . . . The apply same denying rules to an order trial, new which will be affirmed where the evidence was sub- stantially' conflicting and there was sufficient evidence to sus- (20 117.) tain the verdict.” Cal.Jur. court said in Ginsberg, Cal.App. 774, Mosekian : question insufficiency “When the of the evidence to justify presented the verdict on a motion for new trial, duty judge inquire becomes into the sufficiency grant and to judg- a new trial if in his ment justify the evidence is insufficient to the verdict, or to opinion the
deny for a new trial if in the motion evidence verdict. . . . There is a is sufficiеnt to sustain clear dis- powers of a trial stinction between the duties and court in upon grounds upon a motion for a passing here- appellate of an court in mentioned and those review- tofore judgment. from the ing appeal appellate the matter on questions preponderance court is not concerned with testimony weight the evidence; matter for there which, its determination whether or not is evidence given legally effect, support if its fullest sufficient to hand, may weigh the other the trial decision. On parties on behalf of consider the evidence both and determine just ques- from for itself the conclusion to drawn it. The justify insufficiency tion of the of the evidence to the verdict legal is addressed sound discretion the trial court. *14 . . repeatedly . The сourts of last resort of this state have insufficiency justify of held that the evidence to a is verdict ground pecularily a new trial which is a for within the dis- cretion of granting the trial court and order either its or denying a not appeal new trial will be disturbed on unless appears that there was a manifest abuse of it discretion.” (Emphasis added.) trial, for of the motion a new denial court’s As the insufficiency evidence, ground included made on the appeal ignore court cannot evidence, this weighing of a majority opinion cannot, as does the It
its determination. liability By is close. so say, that in effect weighing effect, the evidence. It is more is, in doing, it with the trial court. It discretion has than a matter liability adequate. and found it evidence weighed the conflicting, court cannot set aside is thе evidence Where majority determination, the effect de- but that is a limited new trial reversing the order cision on all issues. That requiring a plaintiff and plaintiff neither nor here because de- not reached result is the issues but the ease stands new trial on all want a fendants proposition. authority opinion large majority that a discre- It stated is determining whether a with trial court tion rests granted, here there was be new trial should limited understand how this of discretion. It difficult to an abuse when it say there an abuse of discretion cannot can standpoint trial court. as the case from same view the weighed evidence decided seen, the latter court As may weigh liability This court not had been established. may Therefore, say that the trial court the evidence. it read dial on the scales abused its discretion—that wrongly. appeal judg- was taken from the
It will be recalled that They are, therefore, ments in the death actions. final deter- defendants’ in each and all minations as to of these actions. It be idle to send the case back for a new would including issues, liability, trial on all of the because the rule judicata applied, nothing res would there would be try except damages—the very left embraced granted. limited new trial which the trial court That res judicata pertinent ease is clear principles from the enunciated in v. Bank America, 807, Bernhard 19 Cal.2d 892], where this court said: “There is no compelling reason, however, requiring party that the as- serting plea judicata of res must been have party, privity a party, litigation. to the earlier satisfactory “No rationalization been advanced for has requirement mutuality. why party Just who was not previous bound precluded action should be from assert- ing judicata against it as res party who was bound comprehend. (See it is difficult to 7 Bentham’s Works [Bow- ering’s 171.) Many courts require- have ed.] abandoned the mutuality ment of requirement and confined privity party against whom plea judicata of res is as- serted. . . . “In determining validity plea judicata of a of res three questions pertinent: Was the issue prior decided in the adjudication identical with presented the one in the action
in question? Was there a judgment final the merits? party the against Was plea whom party the is asserted a privity party with a prior to adjudication?” the All questions three are answered in the affirmative in the instant case. The identical issue is whether defendant driver was negligent and negligence was his proximate the cause the collision. The yes answer is in the four death actions. There are four judgments final on the merits that issue. The party against whom prior adjudications the are asserted the same.
It is said that the verdict result of compromise was the jury because the wanted additional instructions difficulty arriving and had An a‘ verdict. examination arriving of the record reveals that in at a verdict diffi- the against an owner eulty the allowable apparently amount Vehicle Code. It is true that after 402 of the under section deliberating they requested for time been jury had the reading testimony liability, of witness on but the amount of and sole concern their thereafter among plaintiffs apportioned the various they how should be They court first asked $10,000 limit. were within they they numerically replied 9 to 3 and and how stood determining to finish verdict “balance then told their you.” then presented to Verdicts were re- of the matters large against they they the owner, but were too as turned $5,000 being in each of three of the death actions and for $25,000. Denny $10,000 That for fourth, or a total of $1,000 for in- Leipert $4,000, and father thus for $30,000. They ver- creasing the total were told that the incomplete they dicts because did not limit owners’ were liability. they polled were the indication was that When awarded, was the reason liability, and amounts juror example, “We wanted diverse answers. For said: one you do there, to have some instruction said it wouldn’t any money question.” were on the good, so we confused explained $10,000 a dis- court limitation and thеre was jurors subject. cussion and Later between court they they thought they verdict, were asked if could reach negative replies then given, which and record jury discloses: “The Court : The has been out twelve slight they getting feel hours, rest, with some and apart together. farther rather closer than inquiry if If I wonder please, “Mr. Johnston: might properly determining be made whether there towards question of application is some law and its to the law? particular prob- : Jury) Well, is it some (To “The Court you? lem lawof that bothers most confusion arises : I believe the Well, “Juror Sheik money about the more instructions asking for some by not came upon negligence and we agreed had matter. We us, and has confused $10,000.00 which point about the to th.e instructions, they didn’t for more made suggestions think because we didn’t mоre instructions ask for want to fur- After we wanted.” give the instructions they would again retired. the amounts ther about discussion $10,000 apportioned They verdicts then returned death actions each in three $1,700 as follows: Denny $1,000 father, to his fourth; $3,400 $500 *16 finally pro- showing grasped had the method points Thus, I believe it is clear that the record cedure. stronger compromise away from a verdict much than toward settled, that, the con- it. The after apportionment. In respect fusion arose with to amounts and beyond authority event it is to declare this court’s accepting two trial court abused its discretion one of possibilities, is, the verdict was not the result compromise disagree- on liability, the issue of for the apportionment ment verdict related to of the amount liability. rather than on damages, I would, therefore, affirm the order a new trial only. the issue A. Aug. 13, No. 21984. In Bank.
[L. 1952.] B. ROSE, Respondent, JACOB MELODY LANE OF al., WILSHIRE Defendants; et PIG’N WHISTLE COR Appellant. PORATION,