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

AYNES v. WINANS et al.*

Civ. 16319.

Decided: April 12, 1948

Charles H. Goebel, of Los Angeles, for appellant Walter S. Winans. LeRoy Donkin, of Los Angeles, for appellant Crossley Transp. Co. Stewart & Stewart, of Los Angeles, for respondent.

Plaintiff was awarded two judgments on two separate verdicts against the two defendants, each in the sum of $5,000 on accounts of injuries suffered in a collision of plaintiff's truck with a tank truck of the corporate defendant operated by an employee of defendant Winans, lessee of the latter truck. As grounds for reversal appellants contend (1) that in an action against two or more parties for the same tort a separate verdict against each defendant is improper; (2) that after the jury has found plaintiff's damages were $5,000 as against the operator, the court must enter judgment against the owner and operator in solido for $5,000 only.

Such contentions are not predicated upon prejudice suffered by appellants. While one judgment would have been a more felicitous and practical form, no detriment to appellants is shown to have resulted from the two judgments as entered. Since the judgment against Winans is for the portion of the total liability remaining after the owner of the truck shall have paid his statutory share of the liability, Winans is in no position to complain. Moss v. Underwriters' Report, Inc., 12 Cal.2d 266, 273, 83 P.2d 503. He cannot be compelled to pay more than the $5,000. Since the Crossley Company is liable to the extent of $5,000, its complaint is unavailing because it was by statute liable to the extent of $5,000. Hence if there was error in favor of appellants they are without grounds of appeal. James v. E. G. Lyons Company, 147 Cal. 69, 76, 81 P. 275; In re Estate of Lewis, 126 Cal.App. 90, 94, 14 P.2d 357.

Respondent only is in position to complain of the judgment. Should it develop that the undertaking on appeal is valueless, that the Crossley Company is insolvent and that Winans is financially responsible to the extent of $10,000 under the judgment as entered, respondent would nevertheless be unable to collect more than one half of the amount intended by the jury. He would under that circumstance be prejudiced by the Siamese judgment.

In support of their contention that there should have been but one judgment appellants cite Marriott v. Williams, 152 Cal. 705, 711, 93 P. 875, 125 Am.St.Rep. 87; Sparks v. Berntsen, 19 Cal.2d 308, 312, 121 P.2d 497, and Bradford v. Brock, 140 Cal.App. 47, 34 P.2d 1048. Not one is pertinent. (1) Marriott sued two men for assaulting him. The jury returned a verdict against Williams and exonerated his codefendant Beale who had pleaded self-defense. In support of such verdict the court declared that there can be but one verdict for a single sum against all who are found guilty of the tort. Only one was guilty. Moreover, the statutory limitation (Vehicle Code, sec. 402) upon the amount of a judgment against the owner of an offending motor car operated by a lessee had not been heard of at that time (1908). (2) Sparks sued Enge the owner of an automobile and Berntsen its operator. The verdict against Berntsen was $8,000; against Enge, $3,000. The court there emphasized the rule that there should be but one verdict for a single sum against all defendants jointly liable, and declared that [19 Cal.2d 308, 121 P.2d 499] ‘any statutory limitation of liability applicable to any defendant as distinguished from the full liability of other defendants * * * should be incorporated in the judgment entered on the verdict.’ (3) In Bradford v. Brock the court merely expressed the rule in another way, viz., where a verdict is against the operator of an automobile for a sum less than $5,000 the verdict against the owner must be in the same sum.

In the instant case the trial court, having heard the evidence and instructed the jury, was in the best position to construe the verdict. Snodgrass v. Hand, 220 Cal. 446, 31 P.2d 198. The jury were told that if the damage exceeded $5,000 their verdict should be against both defendants, jointly and severally, in the sum of $5,000 and against the defendant Winans only for the amount in excess of $5,000.

The court denied plaintiff's motion to correct the judgments because it was ‘understood by the court and counsel that the judgment is for $5,000 against each defendant.’

Judgments affirmed.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.