*1 finding that failure erroneously the brake concluded that holding on preclude defendant also liable excused would any judgment must reversed theory. Since possi- unnecessary consider whether or event, it is prejudicial error. ble the instructions constituted confusion in thoroughly exposed, problem has now been Moreover, since the appropriate proposing difficulty in parties have no any like- on retrial to obviate the instructions modifications of lihood of confusion. judgment denying notwithstand- motion for The order reversed. affirmed, appeal. their costs
Plaintiffs shall recover Burke, J., Tobriner, Mosk, J., Peters, J., J., J., concurred. judgment for McCOMB, J. I would affirm the dissent. I Frampton opinion expressed Mr. Justice
the reasons Appeal, Appellate Court Second prepared him for the Dziabas, 2 filed (Clark Three Civ. District, Division nonpublication). February 29,1968, certified 24, 1968.] Oct. No. 22605. Bank. F. [S. Respondent, FON WOODCOCK, Plaintiff WALDO EQUIPMENT AND COM TANA SCAFFOLDING Appellant; PANY, ARGONAUT INSUR Defendant Respondent. Intervener and COMPANY, ANCE *2 Cyril Defendant and Viadro for Ellwood Hoskins and Appellant. David
Boceardo, Blum, Niland, Bell, Teerlink & S. Lull, Respondent. Lull and Edward J. Niland Plaintiff ' Respondent. appearance No for Intervener and Woodcock, PETERS, J. employee Plaintiff Waldo Company, injured on of Barrett Construction December 16, 1963, site in He at construction Palo Alto. commenced *3 against injuries personal damages this Fontana action Scaffolding Equipment Company, alleging that it had and negligently of metal scaffold frames which stacked number had fallen him. Scaffolding allegations of the all material Fontana denied part Construc- complaint, alleged negligence Barrett on the of compen- Company, of workmen’s tion and claimed setoff Argonaut had Insurance sation benefits received. Woodcock compensation carrier, filed a Company, Barrett’s workmen’s section against any recovery under Labor Code lien protect its claim. intervened and jury. instructing on the law by a After was tried cause explained the interest negligence, the trial wit, sums to certain “Plaintiff has received intervener. compensation benefits from $4,311.76 as and for workmen’s Company, which carried workmen’s Argonaut Insurance employer, his the Barrett Con- compensation insurance in favor you If find a verdict Company. struction Argonaut Insurance Com- Woodcock, plaintiff, Waldo E. pany may from may entitled to reimbursement employer, Barrett you find that If such verdict. providing Company, negligent was Construction proxi- negligence that such was safety employees itsof contributing injury question plain- mate tiff, then, of the cause Company Insurance will not be to reimbursement such verdict. entitled from completing After instructions relative to the intervener’s expounded claim, proper form for the ver- “Now, dict. determine entitled to against recover defendant, then, you will determine damages amount it in insert that blank there. full compensation Do not subtract this other You claim. the whole amount The Court will determine (Italics added.) the other situation.” special finding returned a verdict and re- “We, cause, cited : the above-entitled find a verdict Plaintiff, against favor of the Waldo Woodcock, Defendant, Scaffolding Equipment Fontana & Com- corporation, damages and assess the Plaintiff’s pany, $13,000.00. sum of We further injury find that the Plaintiff’s proximately negligence contributed plain- employer, tiff’s Company.”1 Barrett Construction Judgment was entered in the full amount of the verdict. Woodcock moved for a new trial inadequate because of dam- ages, Scaffolding and Fontana moved to correct the under Code of Civil sections Procedure 473 and contend- $4,311.76 previously paid compensa- workmen’s tion benefits should have been judgment. deducted from the All denied, motions were Scaffolding appealed. Fontana controversy The heart of this is the “damages $13,000.00” represents in the sum of the total or or a reduced or net amount payments after exclusion of the made to plaintiff by $13,000 represents If intervener. the whole “damages then Woodcock’s must be reduced the amount he re recovery. (Witt Jackson, ceived” to avoid double 57 Cal.2d Cal.Rptr. 369, Trapp, Smith v. 366 P.2d 641] 1Argonaut intervention, complaint accordingly filed a and was entitled *4 formal, (See 3852; separate Code, § to a verdict. Lab. Fernandez v. Con Fisheries, Inc., 254, Cal.App.2d 863].) solidated 117 265 P.2d [255 The provided Argonaut court did not submit a form which for such a verdict. only object, party position complain. did was to (Of. Within, (1954) Trial, 88, pp. 1817-1818.) § 2 Cal. Procedure general verdict-special appear procedure finding utilized the court would atypical. (See proper to have been otherwise and not Souza v. Pratico, Cal.App.2d 651, Cal.Rptr. 159].) 245 653-654 [54
456
Cal.App.2d
249
Cal.Rptr.
Pratico,
929
v.
229]; Souza
[58
supra, 245 Cal.App.2d
Harness
v.
Curtainwall
Pacific
Co.,
Cal.App2d
Cal.Rptr.
235
485
454]; Castro
Fowler
v.
[45
Equipment Co.,
Cal.App.2d
Cal.Rptr.
416
589];
233
Con
[43
ner
Cal.App.2d
v. Utah Constr. & Min.
231
263
Cal.
[41
Rptr.
Aerojet
728];
Corp.,
Cal.App.2d
Dauer
General
224
v.
Cal.Rptr.
Superior Court,
Cal.App.
175
Tate
213
356];
v.
[36
Superior Court,
Cal.Rptr.
2d
;
238
Chick v.
209 Cal.
[28
548]
Cal.Rptr.
City
App.2d 201
Sacramento
v.
725];
[25
Court,
Superior
Cal.Rptr. 43].)
205
398 [23
ambiguous
Standing
specifying
is
in not
alone, the verdict
represents
or net amount
party
ambiguous
is
ad
“If
versely
request more formal and certain ver
affected should
subject, he
Then, if
trial
has
doubts
dict.
jury
proper
to correct
out,
send the
under
(Fernandez v. Consoli
the informal or insufficient verdict.”
Phipps
Cal.App.2d 254, 263;
117
dated
;
Cal.App.2d 371, 374-375
P.2d
Superior
v.
Court,
32
[89
objection
made
is
§619.)2
where no
Proc.,
But
Code Civ.
judge to
trial
jury
discharged,
it falls to “the
before the
language
connec
interpret
considered
from its
verdict
(Fer-
and instructions.”
pleadings,
tion with the
evidence
object
before the
2Frequently,
verdict
form of a
to the
failure
(E.g., Lynch
discharged
defect.
has
held
a waiver
is
v.
been
Regan,
839,
10 Cal.2d
Birdwell,
919] Brown v.
44
851
P.2d
[285
Cal.2d
Washington,
1063];
229
519,
v.
Fransen
P.2d
[75
523-524
Shelly,
458]; County
Cal.
Cal.Rptr.
v.
220
570,
Humboldt
574 [40
Hamilton,
Cal.Rptr. 758];
Cal.
206
App.2d
v.
200 [33
Fairfield
Procedure,
Witkin,
op.
Cal.Rptr. 73];
cit.
App.2d
supra,
are
2
605 [24
Cal.
automatic,
1825-1827.)
97, pp.
However,
there
§
waiver
Winans,
Aynes
many exceptions. (E.g.,
209 [200
Cal.2d
v.
Cal.App.2d 364,
Hospital,
533];
376-377
Riverview
P.2d
Mixon v.
Cal.App.2d 231,
Cal.Rptr. 379];
234 [30
Dauenhauer v.
[62
Cal.App.2d 140,
71];
Duncan,
Cal.
Cal.Rptr.
141-142 [22
West v.
Cal.App.2d 279,
Rptr. 833];
Schmidt,
Shell
v.
to
or
indicates that
the failure
is not found where the record
Waiver
advantage”
object
reap
a “technical
was not the result of
desire
strategy.”
Superior Court, supra,
“litigious
(Phipps
engage
in a
371, 375;
Sullivan, supra,
Dauenhauer
Fisheries, Inc., supra,
234.) Thus,
117 Cal.
in Fernandez v. Consolidated
plaintiff sought damages
negligence
254, 262-263,
App.2d
where
sought
for its workmen’s
intervener
reimbursement
ambiguous
payments
plaintiff,
was
when it
awarded
$50,000
whether the
specifying
intervener without
$50,000 represented
the total amount
or a net
court,
plaintiff.
requested.
sum to
A more certain verdict
weighing
merits,
properly
had
concluded that
inter-
*5
457
Fisheries, Inc.,
nandez
supra,
Cal.App.2d
v.
117
Consolidated
Duncan,
West
supra,
v.
205 Cal.App.2d
142.)
interpret
Where the trial
does
appellate
or
verdict
interprets
erroneously,
interpret
court will
possible
give
if it is
(Mix-
to
interpretation.
a correct
Hospital,
v. Riverview
supra,
tions they suggest are insofar as net cost the elements However, covered.3 the instructions cannot be k (Por vacuum. They must be read other instructions. Ry. ter & Kern Elec. Cal.2d Bakersfield *6 223]). abundantly P.2d other instructions make it [225 figure clear that a net was not desired. Initially, allegations the court cautioned: “Neither the in plaintiff complaint damage the as to the amount of claims to prayer compen- asking been suffered nor the certain have by you arriving your verdict, in at is to sation be considered damages respect: alleged except in this one The amount limit, a maximum complaint does fix ...” It the .then ‘‘ plaintiff is Now, you entitled if determine ordered: the defendant, then, will determine against to recover and insert it that blank there. amount of full You claim. this other Do not subtract damages. amount The Court will determine the whole added.)4 (Italics the other situation. it significant most because relates This last instruction is entering a dollar and the mechanics the form of the verdict jury ambiguity shows clearly and without amount. It that figure. together gross with a When was directed enter compre- to “cost” become instruction, references this earlier equivalent to limit setting maximum dollar only as a hensible services, or not a charged amount dollar total justified. Kefer- reasonable larger charge might have been to fix the context, directives become, in “loss” ences to interpretation. however, In Fernandez 3Authority, undermines such 254, 266-267, supra, Inc., Fisheries, v. Consolidated earnings give instruction similar it error to loss that court held segregated damages jury case, quoted In that above. to the one indemnity employer. that the instruc held plaintiff The court to his suggested plaintiff improper could recover that tion was because charged amount, would twice that the defendant result injuries. the same by instruction, providing a determination whole 4This acceptable procedures represents of several one amount “segregation of items of effected a could have recovery against prevent damage the tort feasor.” as to double so Cal.App.2d 254, (Fernandez Consolidated Co., Taxi P.2d [148 Eckman v. Arnold Engineering ; Corp., v. Stone Webster cf. Sherrillo 677] Henry P.2d Huber v. J. Kaiser 285 [162 payment injury regard or detriment without compensation. of workmen’s instruction, for first
Moreover, time, it is in this basic jury that the trial to the that total indicated would the amount of workmen’s com- be reduced not pensation he had negligent. In whether or Barrett was found received first this was the indication words, that Argonaut’s would receive a “net” amount even injunc- failed, and the was contained compensation claim revelation “Bo tion: this other claim.’’’ subtract explaining argues Plaintiff that instructions that those negligent if Barrett were found could recover they return a net dollar indicated that jury’s only As noted, amount. intimation ultimately would a net amount was contained receive ignore assessing Accord- directive to that fact ingly, Argonaut’s rights rela- regarding the information culpability plainly tion to did have effect Barrett’s suggested. pivotal in this is the one summary, instruction case “determine the full
which commanded the damages.” the and It illuminates the content both *7 dispels ambiguity prior damages and the the appears are and instructions which separately. when the verdict interpreted wrongly the trial The circumstances, unequivocal. was, light of all the His plaintiff of error, judgment and in favor for action was the vacated, judgment a new entered the and must be reflecting a for $8,688.24, amount of reduction paid. previously compensation workmen’s benefits prejudice to a renewal This order without ground of inade plaintiff a new trial on the of his motion for appellate vacates a an court quate damages.5 Where judgment considering Fontana Scaf 5In motion reduce the the stated, trial, folding court new trial and motion for a deny going motion for a I am “I will let the record show that inadequacy ground plaintiff on trial of new him, plus jury received, assumption §13,000 that awarded that §4,000 somewhere around he recovery, appeal §17,000, adequate if on is a and [Fontana fair Scaffolding] prevail ... should be retried also on damages . . .” . may appeal appeal, not consider Plaintiff did not and we on this inadequate. (Harris National Union issue whether are Stewards, 673].) etc. Cooks 764 [254 P.2d & plaintiff judg judgment a with directions enter new may greater amount, defendant move for a new ment entry judgment. (Bond Rail v. United trial after new Witkin, Cal. roads, P. 273, 169 Cal. Avery v. Associated Seed Procedure, supra, p. 2076; cf. Cal.Rptr. Growers, 631-633 [27 appellate entry judgment court directs Where original judgment, rule less than the the same oppor applies. given an obviously The should be entry judg tunity move a new of the new trial after situations, party may who have been satisfied ment. both original upon it judgment in reliance refrain his appealing may have had seeking a trial or from new original ground new denied trial motion sufficiently judgment to him. The judgment was favorable him, he appellate is less favorable to by the court directed permitted to whether to seek new should be light trial considered to have a motion new judgment. the new judgment judgment with directions to enter is reversed $8,688.24. In the interests for justice, appeal. costs on parties bear their own shall J., J., J., Tobriner, Mosk, J., Burke, Sulli- Traynor, C. J., concurred. van, judgment. I affirm the
McCOMB, J.I dissent. would rehearing respondent for petition plaintiff and was modified and the November was denied printed to read above.