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District Court of Appeal, Fourth District, California.

LEIPERT et al. v. HONOLD et al.

Civ. 4122.

Decided: November 22, 1950

Forgy, Reinhaus & Forgy, and Arthur M. Bradley, all of Santa Ana, for appellants. Harvey, Rimel & Johnston, Santa Ana, for respondents.

This is an action for damages arising out of an automobile collision on Highway 101 a short distance north of Newport Beach, at a point where the road, between curves, ran in an easterly and westerly direction.

About 11:00 P.M. on March 13, 1948, two cars loaded with teenagers were proceeding westerly on this road, the one in front being driven by Clifton Edwards. The rear car, in which the minor plaintiff was riding, was a Pontiac driven by Phillip Duff. The night was dark and cloudy, it having rained an hour or two before. As these cars proceeded westerly on this four-lane highway something happened to the steering gear of the Duff car, causing it to go out of control. It went across the highway and into the path of a Buick which was moving easterly in the southerly lane. This Buick was being driven by the defendant Woodrow John Honold, with the permission of the other two defendants who owned that car. The collision occurred in the southerly lane and the cars came to rest largely in that lane, with the front wheels of the Duff car just off the pavement. Most of the right side of the Duff car was demolished, as was the front end of the Honold car. The two cars remained together as they stopped, and there were no skid or gouge marks indicating that either car had pushed the other for any distance. The driver of the Duff car and four of his passengers were killed, and the plaintiff Denny Leipert was badly injured. Woodrow John Honold and a young lady riding with him were also injured.

In this action $20,872 was sought as damages to the minor plaintiff and $1133.50, covering the cost of his treatment, was sought in behalf of his father. This action was consolidated with four others arising out of the same accident, the five being tried together before the same jury.

The minor plaintiff testified that the Duff car was traveling at about 40 miles an hour; that the driver remarked that something was wrong with the steering wheel; that immediately thereafter ‘the wheels started acting funny, they started shimmying’; that ‘we skidded a little bit like that, a jerk like that, and then it took hold and swung the car over across the street’; that ‘the car jerked across the road, and we came to a stop. Our front wheels were way off the road and we were just about off the road, and he put on the brakes quick’; that the driver told him to get out and ‘I got the door open about six inches and I guess that is when it happened’; that he was knocked unconscious; that just before their car went out of control the Edwards automobile was from 20 to 35 yards ahead of them; that the brakes were not applied when the car started shimmying; that when the car went across the highway ‘it didn't skid, it just was tipped and was making a squealing sound’; and that he did not see the Honold car before the collision. He further testified that the Duff car was stopped for about thirteen seconds before the collision occurred, and that he arrived at this figure by later going to the scene and having some one time him while he went ‘through the actions that the car did when it stopped, and what we did.’

Woodrow John Honold testified that he first saw the other two cars when they were about 200 yards away, and quite close to each other; that just before the accident he passed the first of those cars and at the same moment the other car swung over; that it first came across at an angle and then ‘sharply turned across the road’; that when it started across he was from 100 to 125 feet away from it, and its lights flashed in his eyes; and that it was moving rapidly. He further testified that his car and the other car were going from 40 to 50 miles an hour; that he was unable to estimate the speed of the other car as it turned abruptly in front of him; that as the car turned in front of him he tightened his grip on the wheel and turned to the right; that he did not put on his brakes; and that the other car was moving when the cars came together.

Aside from the above there is no substantial eyewitness testimony as to how the accident occurred. The passenger in the Honold car had her eyes closed and saw nothing. The only other survivor in the Duff car was a girl of 15 years. She said she could remember only that the driver of that car started to get out after it stopped and said something, she didn't know what. A boy who was riding in the rear seat of the Edwards car testified that he looked back and saw the Duff car at right angles with the road; that ‘I just got a glimpse of the lights of the Honold car on it and then they hit and it kind of lifted the car up’; that he did not see the Honold car pass the Edwards car; and that when he looked back he could not tell the position of the Duff car on the highway. While he said that the Edwards car went on for a considerable distance after he saw the collision, he had no hesitation in marking the exact spot from which he looked back on this dark night, placing is some 800 feet from the point of the collision.

The jury brought in separate verdicts in the five actions. In this action, the final verdict was against all three defendants jointly in the sum of $500, and against Woodrow John Honold in the additional sum of $700; and in favor of Charles J. Leipert for $1000 as against all defendants. The plaintiffs moved for a new trial on the issue of damages alone, and the defendants moved for a new trial as to all issues. The motion of the minor plaintiff for a new trial was granted as to the issue of damages only; the motion of Charles J. Leipert for a similar new trial was denied; and the motion of the defendants for a new trial was denied. The defendants have appealed from the judgment, and from the order granting the minor plaintiff a new trial on the issue of damages alone.

The question presented is whether the court abused its discretion in thus granting a limited new trial. The appellants rely on certain irregularities and contend that the record indicates that he jury never actually determined that the driver of the defendants' car was negligent. The respondents contend that the evidence was sufficient to support a finding of such negligence, and that it clearly appears that the jury promptly determined the question of liability but was confused on the matter of apportioning the damages.

Where liability is satisfactorily established but the award of damages is inadequate, the court may grant a new trial on the issue of damages alone. However, ‘A limited new trial should not be granted, where substantial justice requires that a new trial, if granted at all, should cover all the issues.’ Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518, 67 P.2d 398, 403; Shurman v. Fresno Ice Rink, 91 Cal.App.2d 469, 205 P.2d 77; Wallace v. Miller, 26 Cal.App.2d 55, 78 P.2d 745; Keogh v. Maulding, 52 Cal.App.2d 17, 125 P.2d 858. It has usually been held that a limited new trial on the issue of damages alone should not be granted where errors or irregularities appear which may have affected the verdict, or where the circumstances are such as to indicate that the verdict may have been the result of a compromise. In Bencich v. Market St. Ry. Co., supra, it was pointed out that a verdict finding the defendants guilty of negligence and then fixing an amount of damages which is grossly inadequate is, in itself, rather convincing proof that the verdict was arrived at as the result of a compromise. After discussing the possibilities thus suggested the court there said: ‘In view of this uncertainty and the fact that clearly something other than the evidence on the question of damages must have actuated the jury, or some of them in arriving at such a low verdict, substantial justice requires' that all of the issues should be retried, instead of splitting them up. (Italics ours.)

An exceedingly close question as to liability here appears. The testimony of the driver of the Honold car is in many respects confirmed by that of Denny Leipert who testified that the Duff car, when about 100 feet behind the Edwards car, started to act funny and almost immediately crossed the road. These cars, each going 40 or 50 miles an hour, were approaching each other on a curved four-lane highway at night. The fact that one car was out of control, and might cross to the wrong side, would not be immediately apparent to the other driver, and this is one of those split-second situations where the question of negligence must necessarily be close. The collision occurred in the south lane where the Honold car was traveling, and the cars came to rest largely in that lane. The testimony that the Duff car was stopped for thirteen seconds is unsatisfactory. It is that of a 15-year-old boy, who was knocked unconscious at the time, and who was later timed in ‘going through the actions that the car did when it stopped, and what we did.’ When analyzed, the testimony of the boy in the Edwards car who looked back and later decided that something had happened to the Duff car, is not very valuable. The physical facts are quite suggestive. It seems impossible that a car standing still at right angles to the road, with its front wheels off the pavement, could be struck broadside by a heavier car going 50 miles an hour, without leaving marks on the pavement and the muddy shoulders showing that it had been moved.

Several irregularities also appear. A traffic officer from Pasadena was called as an expert by the respondents. He was asked if, from his inspection of the exhibits and his experience with broadside collisions, he had formed an opinion as to whether or not the Duff car ‘was moving at the moment of impact.’ He replied that he had. When asked what his opinion was, an objection was sustained. He was then allowed to express his opinion, based on his examination of the exhibits, his experience and his reached, that the speed of the Honold car had been in excess of 45 miles an hour. He was then asked whether from the same sources he had formed an opinion as to the ‘minimum or maximum’ speed of the Duff car. He replied that he had, but when asked what it was an objection was sustained. On cross-examination, this witness gave opinion evidence that a car traveling at 40 to 45 miles an hour (as was the Duff car), on such a road as this and under these conditions, would travel several hundred feet before coming to a stop if the brakes were not applied sufficiently to leave skid marks, and that without an application of its brakes it could not be stopped within 100 feet.

The jury went out at 11:30 A.M. at 4:00 P.M. it returned and asked to hear that part of the testimony of this officer which bore on whether the Duff car was moving or stopped when the accident happened. The direct testimony, above referred to, was read but the part on cross-examination was not read. The court then stated that this covered the matter, and directed the jury to retire. Thereupon, two jurors insisted that this witness had given other testimony on that point. The court said ‘The testimony on that point has just been read,’ and sent the jury out. From the portion read the jury would naturally infer that this expert was of the opinion that the Duff car had stopped, although he was prevented from saying so. This improper matter should not have been read, as being the only portion having a bearing on the question raised. To say the least, the portion which the jury was trying to get should also have been read.

The jury returned at 9:17 P.M. announcing that verdicts had been reached. The verdicts in the five cases were ordered entered in the minutes and were then read to the jury by the clerk. In this case the verdict awarded Denny Leipert $4000 as against all three defendants jointly and an additional $300 as against Woodrow John Honold, and awarded Charles J. Leipert $1000 as against all three defendants. The jury was then polled on the respective verdicts, more than three answering that it was not their verdict. In the case here involved five jurors answered ‘No’, and one juror answered ‘half yes, and half no’. The court announced that the verdicts were incomplete, and then said: ‘I will read to you the appropriate instruction which I read this morning.’ He then read section 402 of the Vehicle Code relation to the liability of an owner of a motor vehicle, and the rest of an instruction telling how that section was to be applied, including the fact that the jury must first determine the total amount of the plaintiff's damage and then apportion it between the driver and the owner, in accordance with the code provision. The jury retired and came in again at 11:30 P.M. with the announcement that it could not reach a verdict. In response to the court's questions each of the jurors expressed the opinion that they would be unable to agree. After considerable discussion the jury was again sent out. It finally returned at 12:33 A.M. with a verdict in this action awarding Denny Leipert $500 as against all three defendants jointly, and an additional $700 as against Woodrow John Honold; and awarding Charles J. Leipert $1000 as against all three defendants. The jury was again polled and nine of the jurors said this was their verdict.

The respondents contend that this jury ‘promptly determined the question of liability and was confused only on the matter of apportionment of damages.’ The jury was out thirteen hours, and had not agreed on the question of liability at the end of four and a half hours. It then asked to have material evidence reread, which was not done. It does not clearly appear that the question of liability had been determined five hours later, when a purported verdict for $4300 in favor of the minor plaintiff was returned, as this verdict was repudiated by six of the jurors. The court then reread an instruction on the apportionment of damages as being the ‘appropriate’ one. Three and a half hours later the jury brought in a nine-to-three verdict awarding $1200 instead of the $4300 provided for in the earlier proposed verdict. This amount was inadequate as shown by the undisputed evidence, and as found by the court. While the jury may have been confused, with respect to apportioning the award as between the owners and the driver of the car, this confusion could hardly have affected the total amount of the award, and does not account for reducing that amount from $4300 to $1200. The circumstances strongly tend to indicate that the final verdict was the result of a compromise, after a long and serious disagreement on all issues. In any event, it rather clearly appears that in arriving at the final verdict the jury must have been actuated by ‘something other than the evidence’ with respect to the extent of the injuries sustained. We conclude that this case is one where substantial justice requires a new trial on all of the issues, and that the court abused its discretion in holding to the contrary.

The order granting a new trial is modified by providing that such new trial shall be upon all of the issues; as so modified the order is affirmed, and the cause remanded for a new trial; and the judgment in favor of Charles J. Leipert is reversed.

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.