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District Court of Appeal, Second District, Division 2, California.

BROWN v. REGAN et al.†

Civ. 11337.

Decided: May 13, 1937

W. I. Gilbert, of Los Angeles, for appellants. Sidney A. Moss, of Los Angeles (Henry H. Childress, of San Francisco, of counsel), for respondent.

Defendant F. F. Regan appeals from a judgment in the sum of $5,000 entered upon the return of a jury's verdict. On June 28, 1935, plaintiff, a pedestrian, was in the act of crossing Western avenue in the city of Los Angeles when he was struck by a car owned by defendant F. F. Regan and driven by his minor son Wm. Regan with the permission of the father, who had signed the application of the son for an operator's license. Plaintiff suffered serious injuries which, according to the complaint and the implied finding of the jury, were caused by the negligence of Wm. Regan in driving the car. The jury brought in a verdict in the following words: “We, the jury in the above entitled action, find for the plaintiff Lansing Brown and against the defendant Wm. Regan and fix the damages in the sum of Nothing Dollars ($ ) and against the defendant F. F. Regan the father in the sum of 5,000 Dollars ($ ). This 7th day of October 1936. G. W. Adams, Foreman.” Thereupon counsel for plaintiff asked that further instructions be given to the jury and that the jury be ordered to pass upon the question of the liability of Wm. Regan. This request was refused and upon the insistence of counsel for the defense the verdict was filed. Thereupon counsel for F. F. Regan moved the court for a judgment in favor of F. F. Regan notwithstanding the verdict. This motion was denied.

Appellant contends that the verdict against F. F. Regan cannot be in a greater sum than that awarded against the driver of the car. The liability of appellant is fixed by section 62 of the California Vehicle Act (St.1923, p. 532, § 62, as amended by St.1929, p. 522) and section 1714 1/4 of the Civil Code, as these sections were in force at the time of the accident. In Broome v. Kern Valley Packing Co., 6 Cal.App. (2d) 256, 44 P.(2d) 430, 431, it was alleged in the second cause of action that the driver of the car, Robert Little, was operating it with the permission of the owner, the claim being based upon section 1714 1/4 of the Civil Code. The verdict was for $5,000 against the owner of the car, but the jury “rendered no verdict as to the defendant Robert Little.” In affirming the judgment the court said: “While the liability imposed by this section of the Code upon the owner of an automobile may be secondary as between such owner and the person operating the car with his permission, it is a primary and direct liability and not a secondary one in so far as the injured party is concerned. * * * Where a parent signs a minor's application for a license, he becomes jointly and severally liable and a failure to find against a minor in such a case does not release the parent from the direct liability he has assumed by his contract.” In Bosse v. Marye, 80 Cal.App. 109, 250 P. 693, 696, the plaintiff sued both the driver and the owner of the car, whose liability was incurred by reason of his having signed the application for the issuance to his daughter of a license under the provisions of the California Vehicle Act which, as in force at the time, made the parent liable for the negligence of the minor. The jury returned a verdict against the parent but found no verdict as to the daughter. No request was made by either of the parties for a resubmission of the cause to the jury for further action. In affirming the judgment against the parent the court said: “The effect of the issuance of the operator's license to Claudine Spreckels upon the application of appellant, pursuant to the provision of the Motor Vehicle Act mentioned, was to charge appellant with joint and several liability for actionable negligence on her part while operating a motor vehicle on a public highway. Idemoto v. Scheidecker, 193 Cal. 653, 226 P. 922. It was optional with plaintiff whether he sued one or both for the tort committed (Fimple v. Southern Pacific Co., [38 Cal.App. 727, 177 P. 871], supra); but having sued both, appellant as principal was nevertheless liable severally.”

If the verdict of the jury and the judgment based thereon may be sustained on any reasonable theory, it should not be disturbed by the reviewing court. Rocha v. Garcia, 203 Cal. 167, 263 P. 238. A judgment should not be set aside for an error which has not resulted in a miscarriage of justice. Const.Cal., art. 6, § 4 1/2. Considering the verdict in the light of these rules and of the two decisions above referred to we have reached the conclusion that the judgment should be affirmed. No special form for verdicts is prescribed by the Code of Civil Procedure. It is provided in section 626 that, “When a verdict is found for the plaintiff in an action for the recovery of money * * * the jury must also find the amount of the recovery.” The jury did not exonerate the driver, Wm. Regan. It found “for the plaintiff Lansing Brown and against the defendant Wm. Regan.” The jury also found against the defendant F. F. Regan in the sum of $5,000. These findings are sufficient to justify the entry of the judgment against F. F. Regan. By its verdict the jury made findings in favor of plaintiff on the issues of negligence and contributory negligence and determined the amount of the damages which F. F. Regan should pay. The liability of Wm. Regan was established, but the jury failed to find the amount which Wm. Regan should pay as a result of his liability. The liability of F. F. Regan being joint and several, he was not prejudiced as between him and the plaintiff by the failure of the jury to fix the amount of the damages as regards Wm. Regan and he has not appealed as to the defendant Wm. Regan. Plaintiff alone is in position to claim prejudice by reason of such failure. It is not questioned that plaintiff suffered serious injury, his hospital and medical expenses having amounted to a very considerable sum. In view of all the evidence it cannot be reasonably argued that the jury meant to find that plaintiff had suffered no damages whatever. Appellant refers to opinions of this court heretofore filed in which statements have been made to the effect that in cases within section 1714 1/4 damages must be in the same amount against the owner and the operator of the car. The facts of the cases referred to were different from those of the present case, and the statements made were unnecessary to the disposition of the appeals.

Appellant contends that plaintiff was guilty of contributory negligence as a matter of law. The accident occurred at about 1:30 o'clock in the morning on Western avenue between Sixth street and Wilshire boulevard. At the time of the accident there were in place traffic control signals at the intersections of Western avenue with Sixth street and Wilshire boulevard. It is provided in section 131 1/2 (d) of the California Vehicle Act (St.1923, p. 517, § 131 1/2 (d), as added by St.1931, p. 2127) as follows: “At intersections where traffic is controlled by traffic control signals, or by police officers, pedestrians shall not cross the roadway against a red or stop signal, and between adjacent intersections so controlled shall not cross at any place, except in a marked or unmarked crosswalk.” Plaintiff was not crossing in a crosswalk. Appellant argues that he sustained the burden of proving contributory negligence by showing that plaintiff in crossing the street did so in violation of the provisions of the section just quoted. It will be noted that the section did not make it unlawful to cross between intersections where traffic control signals had been erected or were in place. It was made a violation of the act for pedestrians to cross against a red signal “where traffic is controlled by traffic control signals,” and it was made unlawful to cross except at a crosswalk “between adjacent intersections so controlled.” The Legislature evidently intended to make crossing between intersections unlawful only in cases where traffic control signals were in operation. It was not proved that the control signals were in operation at the time of the accident.

The judgment is affirmed.

I dissent. As appears from the facts stated in the majority opinion, there was a single tort for which both defendants were liable, defendant F. F. Regan's liability being based upon section 1714 1/4 of the Civil Code (now section 402 of the Vehicle Code. St. 1935, p. 153); in other words, defendants were joint tort–feasors. The jury returned a verdict assessing the damage as to defendant William Regan in the “sum of nothing” and as to the defendant F. F. Regan in the sum of $5,000. We have, therefore, squarely presented for determination this question:

In an action against two persons for a single tort is a verdict assessing damage in different amounts as to each defendant valid?

In my opinion this question has been answered in the negative by our Supreme Court. In Marriott v. Williams, 152 Cal. 705, at page 711, 93 P. 875, 878, 125 Am. St.Rep. 87, Mr. Justice Shaw says:

“In actions against two or more persons for a single tort, there cannot be two verdicts for different sums against different defendants upon the same trial. There can be but one verdict for a single sum against all who are found guilty of the tort. All who are guilty at all are liable for the whole amount of the actual damages arising from the injury inflicted, irrespective of the degree of culpability. Huddleston v. Borough, 111 Pa. 110, 2 A. 200; McCool v. Mahoney, 54 Cal. [491] 492; Nichols v. Dunphy, 58 Cal. [605] 607; Everroad v. Gabbert, 83 Ind. [489] 492; Carney v. Reed, 11 Ind. 417; Cooley on Torts, p. 136; 1 Suth. Dam. § 140. The court did not err in instructing the jury to this effect.”

In Bradford v. Brock, 140 Cal.App. 47, 50, 34 P.(2d) 1048, 1049, in discussing a verdict, assessing damages as a result of liability based on section 1714 1/4 of the Civil Code, the court says:

“Where a verdict is returned against the operator of an automobile for a sum less than $5,000 for injuries to one person, and the jury seeks to hold the owner for damages growing out of the same occurrence, under Civ.Code, § 1714 1/4, its verdict against such owner must be in the same sum as against the operator. Kerrison v. Unger [135 Cal.App. 607] 27 P.(2d) 927; Marriott v. Williams, 152 Cal. 705, 93 P. 875, 125 Am. St.Rep. 87.” (Italics mine.)

In Kerrison v. Unger, 135 Cal.App. 607, 611, 27 P.(2d) 927, 928, in discussing the question of damages based on liability arising under section 1714 1/4 of the Civil Code, it is stated:

“In the instant case the jury had the right under the law and the evidence to bring in a verdict against the operator of the automobile for less than $5,000; but, if it did so, under the clear terms of the statute the damages against the owners should have been in the same sum.” (Italics mine.)

It is to be noted that in the two cases last cited a petition for hearing before the Supreme Court was denied.

For the foregoing reasons, in my opinion, the judgment should be reversed.

WOOD, Justice.

I concur: CRAIL, P. J.