FENNESSEY v. PACIFIC GAS ELECTRIC CO

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District Court of Appeal, First District, Division 1, California.

FENNESSEY et al. v. PACIFIC GAS & ELECTRIC CO. et al.†

Civ. 10257.

Decided: May 22, 1937

Thomas J. Straub, W. H. Spaulding, and Clinton F. Stanley, all of San Francisco, for appellants. John J. Taaffe, George B. Harris, and P. J. Murphy, all of San Francisco, for respondents.

Appeal by defendants Pacific Gas & Electric Company, a corporation, and Thomas Foley from an order directing a retrial of the issues in the above action as between plaintiff and said appellants, and also from orders granting plaintiff a new trial of those issues and denying appellants' motion for an order directing the clerk of the court to enter judgment for appellants. The latter motion was made upon the ground that the jury had returned a verdict in appellants' favor.

The action grew out of injuries suffered by plaintiff Irene Fennessey, who was struck by an automobile driven by defendant Manecis. Plaintiff alleged that her injuries were proximately caused by the concurrent negligence of Manecis and appellants.

At the conclusion of plaintiff's case appellants moved for a judgment of nonsuit; and when the taking of testimony closed they also moved for an order, not in the alternative form, directing a verdict in their favor, both of which motions were denied. The jury was then instructed that it might return a verdict against or in favor of all the defendants or against defendant Manecis alone, but that if they found against Foley, who was an employee of the defendant corporation, they must also find against his employer. Three forms of verdict in accordance with the instructions were then submitted to the jury.

The jury having announced that it had reached a verdict, the following proceedings were had:

“The Court: Have you reached a verdict?

“The Foreman: Yes sir (handing verdict to the court).

“The Court (reading:) ‘Irene Fennessey, Plaintiff, v. Pacific Gas and Electric Company and Others, Defendants. Verdict. We, the jury in the above entitled cause, find a verdict in favor of plaintiffs, Irene Fennessey and William J. Fennessey, and against defendant George L. Manecis, and assess damages in the sum of fifteen thousand dollars. Donald T. Stockman, Foreman.’ Is this the verdict of at least nine of your number?

“The Foreman: Yes.

“The Court: Record the verdict, Mr. Clerk, and then read it back to the jury.

“The Clerk: This is your verdict as it has been recorded (reading).

“Mr. Murphy: May we have the jury polled, your Honor?

“(The clerk thereupon polled the jury and announced that the verdict as rendered was the unanimous verdict of the jury.)

“The Court: Now, ladies and gentlemen of the jury, I did not give you a verdict in favor of the defendants––certain defendants. Do I understand correctly that by this form of verdict you intended to bring in no verdict against either Foley or the P. G. & E.?

“A Juror: That is right.

“The Court: Is that correct?

“A Juror: That is correct.

“The Court: Well, then, the jury will be excused until further notice from the presiding judge.”

A judgment, which followed the verdict, was entered; no reference to appellants being made in either. Following this the motions and orders mentioned were made.

It appears to be well settled that a verdict in the form returned where, as here, the appellants had not joined in an answer with Manecis, was a failure to find on the issues raised by their pleading; and, other things being equal, the result as between them and the plaintiff was a mistrial. Rankin v. Central Pacific R. Co., 73 Cal. 93, 15 P. 57; Benson v. Southern Pacific Co., 177 Cal. 777, 171 P. 948; McMahon v. Hetchhetchy, etc., Ry. Co., 2 Cal.App. 400, 84 P. 350. An order in effect so declaring and discharging the jury is not an order from which an appeal may be taken (Mullin v. Rouseau, 112 Cal.App. 719, 297 P. 944), and in such cases the cause may again be tried. Code Civ.Proc. § 616.

Nor did plaintiff's failure to ask for a correction of the verdict at the time it was announced raise a presumption that those issues had been abandoned. Rankin v. Central Pacific R. Co., supra.

Appellants contend, however, that the jury intended a verdict in their favor, and that this appears from the proceedings quoted above.

In Crain v. Sumida, 59 Cal.App. 590, 211 P. 479, 480, a jury expressly found that plaintiff should recover against one of two defendants (naming him), and in conclusion declared that they found “* * * in favor of the defendant –––– that plaintiff take nothing.” It was held that the verdict when considered in connection with the instructions was sufficiently certain and that an intention to find in favor of the other defendant clearly appeared. But the facts in Keller v. Smith, 130 Cal.App. 128, 19 P.(2d) 541, are similar to those in the case at bar; and it was there held that the intention of the jury in rendering a verdict must not be left to inference or presumption, but must be specifically declared; and where not so declared in reference to one of the several defendants who had separately answered, it must be taken that the jury had failed to answer upon that particular issue.

But appellants claim that the assent by two of the jurors in response to the inquiry by the trial court as to whether they intended no verdict against appellants, made the fact certain, and that the verdict returned was in effect one in their favor.

A verdict must be in writing (Code Civ.Proc. § 618 [as amended by St. 1935, p. 1956]), and, so far as we are advised, it has never been held in this jurisdiction that matters with respect to which a verdict is silent can be supplied by the oral declarations of jurors as to their intention. We feel bound to hold that as between the plaintiff and appellants the jury failed in legal effect to find upon material issues. This being true, there was as between these parties no verdict; and, as held in Vitimin Milling Corporation v. Superior Court, 1 Cal.(2d) 116, 33 P.(2d) 1016, the trial court would have been without authority under section 629 of the Code of Civil Procedure to enter a judgment in favor of appellants though it should appear that the evidence was insufficient to support a judgment against them.

Assuming that it would have been competent for the court to have granted a motion for a nonsuit at the conclusion of all the evidence (9 Cal.Jur., Dismissal, etc., § 38, p. 56), a refusal would not have been appealable (Code Civ.Proc. 963; Dahl v. Spotts, 128 Cal.App. 133, 16 P. (2d) 774).

The foregoing applies equally to the motion for a new trial. There being no verdict, the trial was not complete, and there was consequently nothing to be reviewed by a new trial. 20 Cal.Jur., New Trial, § 8, p. 19; Vitimin Milling Corp. v. Superior Court, supra. This order, however, being made in a case where a trial by jury was a matter of right, was, of course, appealable. Code Civ.Proc. § 963 (as amended by St.1933, p. 2472).

We are satisfied that as between plaintiff and appellants, no verdict having been returned, the order denying appellants' motion and the order directing a retrial of the action as between these parties, were not appealable, and that the attempted appeals therefrom should be dismissed; further, that there being no verdict, the motion for a new trial did not lie, and the order granting the same was erroneous. Benjamin v. Stewart, 61 Cal. 605.

It is therefore ordered that the appeals mentioned be and they are dismissed, and the order granting a new trial is reversed.

PER CURIAM.