DORSEY v. BARBA

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

DORSEY et al. v. BARBA et al.

Civ. 14381.

Decided: January 12, 1951

Theodore Golden, J. Bruce Fratis, Oakland, Julius M. Keller, San Francisco (of counsel), for appellants. James F. Galliano, C. Paul Paduck, Oakland (Henry Teichert, Berkeley, of counsel), for respondent, Vincent Barba. Clark & Heafey, Edwin A. Heafey, Augustin Donovan and Louis B. DeAvila, all of Oakland, for respondent, Catherine Barba.

Plaintiffs appeal from the judgment in favor of Catherine on the ground that under the evidence and section 402 of the Vehicle Code, she was an ‘owner’ of the car, and hence Vincent's negligence must be imputed to her as a matter of law. The accident occurred May 1, 1948, at which time the car was still registered in Catherine's name. Catherine and Vincent had been husband and wife, and approximately six months before their separation, the automobile in question was purchased. It was paid for out of the joint earnings of the parties, and the ownership certificate (pink slip) was taken in the name of Catherine alone. Catherine testified that this was done so she would feel that half of it belonged to her. It was considered as community property by the parties. Both the pink slip and the car were always in Vincent's possession and control. He drove the car to and from work and used it whenever he desired. Catherine had never driven the car. In fact, she could not drive and had no driver's license. The parties separated, and on January 24, 1948, entered into a property settlement agreement, which settled all of their property rights. One of the provisions of the agreement was a transfer from Catherine to Vincent of all her interest in the car. Thereafter, and on February 9, 1948, Catherine obtained an interlocutory decree of divorce, which decree, by reference, incorporated the property settlement agreement, approved it and ordered each of the parties ‘to do those things required of them to be done * * *.’ Catherine did not endorse the pink slip (Vincent testified that he mislaid it), nor did she comply with section 178 of the Vehicle Code until approximately two months after the accident, when Vincent sold the car. Vincent testified that after the divorce, Catherine saw him using the car and did not object; that the court had given him the car and she could not object. Catherine testified that after the divorce she had not seen him drive the car but presumed he was driving it; that she never gave her consent or permission to his using the car. On cross-examination of Vincent it was brought out that, at a justice's court trial arising out of the same accident, he had testified that the car at the time of the accident belonged to Catherine.

The trial court considered the matter as a question of fact to be determined by the jury. It first gave full instructions on ownership and the requirements of consent, express or implied, and then instructed that the jury must determine whether Catherine was an owner, and if the jury found she was, then whether she consented to the use of the car by Vincent. Plaintiffs do not question these instructions. As the jury found for Catherine, it evidently found against plaintiffs on both questions.

In Pacific Tel. & Tel. Co. v. Wellman, 98 Cal.App.2d 151, 219 P.2d 506, it was held that where an automobile is purchased with community funds something more than the fact that the wife's name appears as owner on the registration certificate (pink slip) is required to overcome the presumption that the automobile is community property. Placing her name on the pink slip does not constitute acquisition of property by an ‘instrument in writing’ which section 164 of the Civil Code requires to raise the presumption of separate property. But even if there were a presumption, raised by the pink slip, that the car belonged to Catherine, the evidence is sufficient to rebut the presumption, and to support the implied finding that the car actually was community property at the time of the property settlement agreement. Thus, the real question to be determined here is, was the transfer of the community property interest from wife to husband one which required a strict compliance with section 178 in order to relieve the former wife of liability under section 402? Section 402 provides: ‘Every owner of a motor vehicle is liable’ for the death or injury to persons or property resulting from the negligent operation of the vehicle by any person using or operating it with the ‘permission, express or implied’ of such owner. Section 66 provides: “Owner' is a person having all the incidents of ownership, including the legal title of a vehicle whether or not such person lends, rents or pledges such vehicle; the person entitled to the possession of a vehicle as the purchaser under a conditional sale contract; * * *.'

Section 178 provides that ‘An owner who has made a bona fide sale or transfer of a vehicle and has delivered possession thereof to a purchaser’ shall not be deemed the owner for purposes of civil liability for its operation by another when the owner, in addition to sale or transfer and delivery of possession has either (1) made proper indorsement and delivery of the certificate of ownership and delivered the certificate of registration as provided in the code, or (2) has notified the department of motor vehicles of such sale or transfer in the manner set forth in the code. Section 186 of the Vehicle Code provides that no transfer of any interest in a motor vehicle shall pass nor any attempted transfer be effective until the requirements of that section, which are somewhat similar to those of section 178, have been complied with.

It is well settled in California that a conditional vendor of a motor vehicle is still liable as ‘owner’ for an accident which occurs before he has complied with the registration provisions of the code. Weinberg v. Whitebone, 87 Cal.App.2d 319, 196 P.2d 963. Plaintiffs contend that the transfer of the wife's interest in the autobile to the husband is the same, so far as Vehicle Code compliance is concerned, as the transfer by a conditional vendor to the vendee. They rely on Wilcox v. Berry, 32 Cal.2d 189, 195 P.2d 414, in which the car was registered in the name of the husband and/or wife. The husband was driving and it was sought to impute negligence to the wife. The court held the wife liable, saying that the evidence supported the implied finding that the automobile was owned jointly and it was a question of fact whether the car's operation was with her consent. That case is distinguishable from ours, in that first, the car was jointly owned, where here, it was community property; secondly, in that case there was no transfer between husband and wife, where here, there was such a transfer as well as a court confirmation of that transfer; and thirdly, there, the evidence justified a finding of consent, while here the evidence supports a finding of no consent, unless, as contended by plaintiffs, the law implies a consent; and fourthly, there, the court expressly stated that if the car had been community property there could be no consent of the wife, since the husband is the manager of the community property. This statement was based on the authority of Cox v. Kaufman, 77 Cal.App.2d 449, 175 P.2d 260. In that case the auto was community property. At the time of the accident the husband was driving and the wife was riding in the car. He was taking her to her place of employment. After pointing out that section 172 of the Civil Code gives the husband the entire management and control of the community property, the court said that ‘no consent of the wife, express or implied, to her husband's use or operation of the community automobile could add anything as a matter of law or of fact to his rights in that respect, which are already plenary and complete. Under secs. 161a and 172, Civ.Code, her objection to his use of the automobile would be as futile as her consent to his use of it would be superfluous. His operation of the car in contemplation of law is referable to his absolute right to manage and control the community property and not to any consent, express or implied, of his wife; and sec. 402, Vehicle Code, for that reason has no application to the facts of this case.’ 77 Cal.App.2d at page 452, 175 P.2d at page 261. It then held that the wife could not be held liable under section 402. ‘[S]he had no consent to give * * *.’ Pacific Tel. & Tel. Co. v. Wellman, 98 Cal.App.2d 151, 219 P.2d 506, 509.

If a wife cannot be held liable where she still has a community interest in the car, because she has no power to consent to the husband's use of the car, it would be an anomalous situation if she were to be held liable after she has surrendered all interest in it. The husband still does not need her consent and as said in the Cox case, 77 Cal.App.2d 449, 175 P.2d 260, concerning use of the community car, ‘her objection to his use of the automobile would be as futile as her consent to his use of it would be superfluous.’ Therefore, in the case at bar, the finding of the jury that there was no consent by Catherine to the use of the car by Vincent was correct.

Moreover, for another reason, Catherine was not an ‘owner’ within the contemplation of section 402. Section 66 says an ‘owner’ is a person having all the incidents of ownership including the legal title. At no time did Catherine have all the incidents of ownership. Under section 172, Civil Code, she was entitled to neither the possession nor control of the car. This fact alone distinguishes the situation from that in conditional sales.

This conclusion makes it unnecessary to discuss the question as to whether or not sub. (b) of section 186 of the Vehicle Code, excluding certain involuntary transfers from the operation of the section, excludes the type of ‘involuntary’ transfer here involved.

The judgment in favor of Catherine should be affirmed.

ADDITUR—The Appeal by Plaintiffs from the Judgment Against Vincent Barba.

The jury brought in verdicts against Vincent Barba and in favor of Josephine Dorsey and Beatrice Anderson. The verdict in favor of Josephine was for $620.39, while that in favor of Beatrice was for $1,293.60. The uncontradicted evidence shows that Josephine spent for medical expenses the sum of $512.39; that further surgery was required that would cost $100 to $200. Thus her special damages were either $612.39 or $712.39, depending upon whether the $100 or $200 estimate was accepted by the jury. Beatrice's medical expenses were $721.60. The estimate for plastic surgery in her case was $300 to $500. She also claimed $280 for loss of wages for eight weeks at $35 a week, and she testified, in addition, that tips (she was a waitress) amounted to more than $60 per week. Thus her medical expenses, including the plastic surgery, were from $1,021.60 to $1,221.60, depending upon whether the $300 or $500 estimate was accepted by the jury. When loss of wages and tips are added, her special damages exceeded the jury award of $1,293.60.

The plaintiffs moved for a new trial on most of the statutory grounds including ‘inadequacy of the damages, appearing to have been given under the influence of passion or prejudice and not in conformity with the evidence produced at the trial.’ After argument, the trial court determined that the damages were inadequate and ordered a new trial granted on the issue of damages alone unless defendant ‘files his written consent to a modification of the judgment entered herein in favor of Josephine Dorsey so that said judgment may be entered therein in the sum of $1500.00 in place and stead of the sum of $620.39 originally awarded, and to the modification of the judgment herein in favor of Beatrice Anderson, so that said judgment may be entered therein in the sum of $3000.00 in place and stead of $1293.60 originally awarded,’ and further providing that if defendant filed such a consent plaintiff's motion for a new trial was denied. Within the period specified the defendant filed the required consent, whereupon judgment for plaintiffs was entered in the amounts specified in the conditional order. The judgment recites all of the pertinent facts and specifically states that prior to making the conditional order the court had ‘found that the evidence was insufficient to support each of the verdicts hereinabove set forth in that the damages awarded each of said respective plaintiffs were inadequate.’

Plaintiffs appeal from this judgment in their favor, contending that the trial court had no power to thus deny conditionally the motion for a new trial, and that the procedure adopted denied to them a jury trial on the issue of damages.

It is apparent that the jury found that the negligence of defendant proximately caused the accident and that the defendant was liable for all damages proximately caused thereby. It is also apparent that then the jury fixed the amount of special damages and gave each plaintiff an award of her special damages, but either overlooked or disregarded the element of general damages entirely, or impliedly found that plaintiffs were entitled to no general damages at all. It is also apparent that the trial court in upping each award by its conditional order awarded each plaintiff something for general damages, about $800 for Josephine, and about $1,500 for Beatrice.

In this case, once it was determined that defenant Vincent Barba was legally responsible for the damages, it is clear that plaintiffs were entitled to both their special and general damages as shown by the evidence. So far as general damages are concerned, the testimony showed that Josephine suffered severe lacerations on her forehead, on the right side of her head, and to her left eyelid, all of which were sutured; that she had a cerebral concussion and was unconscious until the day after the accident; that she had a severe tenderness in her abdomen, pelvic region and in her left knee; that there were abrasions to her left knee, and this knee had a chip fracture; that she suffered a tear in the back of the right knee; that the accident happened on May 1, 1948, and she remained in the hospital until May 6th, and remained in bed at home until May 16th when she returned to the hospital where she remained until May 22nd; that it was necessary to give her penicillin as a preventive for lockjaw; that at the time of trial (a little over a year after the accident) she still had headaches and her eye swelled up at intervals. She also testified that for two or three weeks after her last release from the hospital she was unable to do housework. Beatrice had multiple abrasions of the head and face and also had a cerebral concussion. She had a triangular laceration over the right eye about 2 1/212 inches in length which had to be sutured, and extensive abrasions of both knees and right heel. There was an inflamatory area in the right shoulder. She suffered from severe shock. She, too, was unconscious until May 2nd and remained in the hospital until May 6th. She returned to the hospital May 23rd for lockjaw treatment, and again on June 6th to reopen the wound in her forehead to clean out particles of gravel. She, also, still suffered from headaches at the time of trial. She was out of work eight weeks because of the accident.

A plastic surgeon testified that the facial scars of plaintiffs were permanent and that, while they could be reduced in width by plastic surgery, they could not be eliminated.

The problem presented is whether the trial court has the power to increase a jury verdict by a conditional order of the type here involved with the consent of the defendant but against the will and without the consent of the plaintiffs. This revolves around the question as to whether or not such procedure violates the guarantee of a jury trial contained in Article 1, § 7, of our state Constitution, which reads: ‘The right of trial by jury shall be secured to all, and remain inviolate’.1

This provision guarantees the right to a jury trial as it existed at common law when our Constitution was first adopted in 1849. People v. Kelly, 203 Cal. 128, 133, 263 P. 226; People v. Powell, 87 Cal. 348, 354, 25 P. 481, 11 L.R.A. 75, et seq.; Clyne v. Brock, 82 Cal.App.2d 958, 961, 188 P.2d 263. The legislature or the courts may, without violation of the constitutional guarantee, change the rules of practice and procedure as they existed at common law and may introduce new devices better suited for the efficient administration of justice, but neither the legislature nor the courts have the lawful power to impair the substantial features of a jury trial.2

Thus the basic question involved is whether this process of additur is a mere rule of practice or procedure, and so may be adopted without violation of the Constitution, or whether such procedure is substantive in nature and violates the fundamental concepts of a jury trial as such concepts were known at common law.

There are few decided cases upon this subject, and what cases have been decided are in hopeless conflict. Most of the writers on this subject seem to favor the conclusion that additur does not violate the constitutional guarantee.3 The exercise of this power, against the will of a non-consenting plaintiff, has been denied to the federal courts by a five-to-four decision of the United States Supreme Court. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, decided in 1935. The upper courts of the various states have decisions every which way on this subject, with the majority denying the existence of the right. American Ry. Express Co. v. Bender, 20 Ohio App. 436, 152 N.E. 197; Shanahan v. Boston & Northern St. R. Co., 193 Mass. 412, 79 N.E. 751; Lemon v. Campbell, 136 Pa.Super. 370, 7 A.2d 643; Bradwell v. Pittsburg & W. E. R. Co., 139 Pa. 404, 20 A. 1046; Gaffney v. Illingsworth, 90 N.J.L. 490, 101 A. 243; Clausing v. Kershaw, 129 Wash. 67, 224 P. 573; Marsh v. Minneapolis Brewing Co., 92 Minn. 182, 99 N.W. 630; Rudnick v. Jacobs, 7 W.W. Harr., Del., 348, 183 A. 508. Wisconsin has adopted a somewhat unique practice which seems to be peculiar to that state. There the trial court may grant the plaintiff the option to accept the smallest amount warranted by the proof, and if he refuses to consent, then it grants the defendant the option to pay the greatest amount warranted by the proof. The choice, in either case, is binding on the other party, and a new trial ordered if neither option is exercised. Campbell v. Sutliff, 193 Wis. 370, 214 N.W. 374, 53 A.L.R. 771; Risch v. Lawhead, 211 Wis. 270, 248 N.W. 127.

California has never directly passed upon the problem involved, but there are dicta both ways on the subject. The case relied upon by defendant in support of the existence of such power is Secreto v. Carlander, 35 Cal.App.2d 361, 95 P.2d 476. That case undoubtedly contains some dicta that supports the defendant, but the sole authority relied upon in the opinion in support of the rule stated is not in point. In the Secreto case the plaintiff, in a personal injury action, received a jury verdict of $150. As in the instant case, the plaintiff moved for a new trial on the ground of inadequacy, and, as in the instant case, a conditional order was made granting the new trial unless defendant consented to raising the sum awarded plaintiff to $1,200. The defendant did not consent and then the defendant appealed from the order granting the new trial. Thus the case is simply one where a trial court has granted a new trial because of the inadequacy of the damages—a power that always has existed in this state. (See 20 Cal.Jur., § 67, p. 104.) By way of dicta, and in response to defendant's contention that the trial court in ruling on a motion for a new trial is without power without the consent of both parties to make a conditional order of the type here involved, the court stated, 35 Cal.App.2d at page 364, 95 P.2d at page 477: ‘The second proposition is untenable. The law is established in this state that as a condition for denying a motion for a new trial the trial court has the power to require the opposing party to consent to an increase of the amount of the jury's verdict to bring the amount of the verdict in conformity with the evidence.’ The sole authority relied upon to support this dictum is Adamson v. County of Los Angeles, 52 Cal.App. 125, 198 P. 52. That case did not involve the conditional increase of a jury verdict in an unliquidated damages case at all. It was a case where the damages were fixed, certain and computable. It was a condemnation action. The jury made an award based upon twenty-nine miles of fencing at so much per mile. On the motion for new trial both the defendant and plaintiff agreed that the computation by the jury was incorrect, and that there were 31 1/212 miles of fencing. The motion for a new trial was denied on condition that the condemnor consent to the increase for the extra miles, which he did. There was no appeal from this increased judgment, but defendant sought to attack the judgment collaterally by attempting to enjoin, as a taxpayer, the construction of the road. The increase in the award against such an attack was upheld, and properly so. Aside from the fact that this was a collateral attack on the judgment, it is well settled that, where the verdict is the result of a measurable mistake, the trial court has the power to raise the verdict, in order to correct the mistake. County of Los Angeles v. Rindge Co., 53 Cal.App. 166, 200 P. 27; Eaton v. Jones, 107 Cal. 487, 40 P. 798; see, also, Engle v. Farrell, 75 Cal.App.2d 612, 171 P.2d 588. For these reasons the Secreto and Adamson cases constitute no authority on the subject under discussion.

There are several other California cases that should be mentioned. In Werner v. Bryden, 84 Cal.App. 472, 258 P. 138, in an action for breach of promise to marry and seduction, the jury found for the defendant—thus finding impliedly, that no promise of marriage had been made. On motion for a new trial by the plaintiff, the trial court found the evidence insufficient to supoort that implied finding, and conditioned the denial of plaintiff's motion for a new trial upon defendant consenting to a judgment against him for $1,500. Defendant consented, and the new trial was denied. Plaintiff appealed. The court reversed, holding that the uncontradicted evidence showed a promise to marry, so that plaintiff was entitled to damages, and also holding that plaintiff had a constitutional right to have her unliquidated damages assessed by a jury. This case, of course, involved a situation where the trial court on motion for a new trial, attempted, by a conditional order, to not only decide the issue of damages entirely, but also the issue of liability. While it does not present a true additur situation, where only an increase of the verdict is involved, the case does serve to emphasize the point that in unliquidated damage cases the constitutional provision guaranteeing a jury trial requires the jury and not the court to fix the amount of damages.

Blackmore v. Brennan, 43 Cal.App.2d 280, 110 P.2d 723, contains some pertinent language. In this action for wrongful death the jury brought in a verdict of $2,500 and the trial court entered its conditional order granting plaintiff's motion for a new trial unless defendant consented to raising the verdict to $3,500. The defendant consented. So far, the case is on all fours with the instant one. But after the new trial was denied and judgment entered for plaintiff in the increased amount, the defendant appealed contending that he had been deprived of his right to a jury trial. Of course, by consenting to the increase, the defendant had waived his rights. Phelan v. Superior Court, 35 Cal.2d 363, 373, 217 P.2d 951. That is what the court held and that holding has no application to the present problem. But in the course of its discussion, the court, in the Blackmore case, stated 43 Cal.App.2d at page 289, 110 P.2d at page 728: ‘It is the established rule of the courts of this state and of other jurisdictions to uphold the authority of trial judges, under proper circumstances, to modify judgments on motions for new trials by either reducing or increasing the judgments to conform to the evidence, conditioned upon the written consent of the parties unfavorably affected thereby. 95 A.L.R. 1164, note; 53 A.L.R. 779, note. We perceive no essential difference between allowing a trial judge to decrease the amount of damages awarded by a jury, to conform to the evidence, and increasing that amount, even though the case may involve unliquidated damages which appear to have been awarded through passion and prejudice or when it is clearly in conflict with the evidence. In either event the judgment must accord with the evidence adduced. It is true that either party who is prejudiced by such an order, so as to deprive him of the constitutional privilege of submitting his cause to a jury, may object to that procedure. But there are many decisions which hold that, when a person who is unfavorably affected by such a conditional order with respect to a motion for new trial, consents in writing thereto, he is not deprived of his constitutional right to have the amount of damages which are assessed against him submitted to a jury, for he has thereby waived that right. In the present case the appellants consented to the increase of damages in the manner required by law, and they may therefore not complain.’ (Italics added.) Although there is some language in the opinion that is somewhat confusing, it is a possible interpretation of the italicized portion above quoted that the majority of the court believed that before a verdict could be validly increased, the consent of the plaintiff as well as that of defendant is required. The concurring opinion in that case is directly in point. In that opinion the concurrence is unequivocally placed on the ground that the exercise of the power of additur, without the consent of the plaintiff, violated plaintiff's constitutional right to a jury trial. In this connection the concurring justice unequivocally approved the majority opinion in Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603. Thus, in this case, the majority broadly indicated, and the concurring justice expressly held, that the trial court was without power to increase conditionally the jury's award unless the plaintiff consents.

The last California case which need be mentioned is Taylor v. Pole, 16 Cal.2d 668, 107 P.2d 614. There, one of the plaintiffs, Austin Taylor, in a personal injury action, received a verdict in his favor in the sum of ‘$ No.’ The uncontradicted evidence showed that Austin had spent $117.64 to repair his car, and had suffered other and general damages. The trial court denied Austin's motion for a new trial on condition that the defendant consent to an award of $117.64. The defendant consented and Austin appealed. The Supreme Court reversed, holding that the jury's verdict in favor of Austin had settled the issue of liability, and that the trial court was without power to award by conditional order special damages only. The court stated 16 Cal.2d at page 674, 107 P.2d at page 617. ‘There is a conflict of authority as to the extent of the power of a trial court to assess damages or increase the amount of an inadequate award made by jury verdict, as a condition of denial of motion for new trial. [Citing cases and authorities.] The question need not be here determined because even the application of the broadest rule to which we have been cited would not sustain the trial court's action in the present cause. This is so because in ordering the increase to cover the item of property damage the court failed to take cognizance of the fact that Mr. Taylor also sought compensation for personal injuries.’

The rule of this case might well be applicable to the present case. As already pointed out, in the instant case, the jury allowed only what the uncontradicted evidence showed were the special damages of plaintiffs. The jury either overlooked the item of general damages or disbelieved the uncontradicted evidence of general damages. In either event, the trial judge, by fixing the amount of the award in his conditional order, clearly substituted his judgment for that of the jury on the issue of general damages. In a very real sense, in the instant case, the trial court awarded general damages where nothing had been awarded for that item of damages by the jury.

Although it could be argued that the above cases support the conclusion that the power of additur does not exist in this state, there appears to be no clear-cut holding on the issue and the question would appear to be an open one. The leading case on the subject in United States is Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603. That case is on all fours with the instant one. There a jury, in a personal injury action, brought in a verdict for $500. The plaintiff moved for a new trial on various grounds, including inadequacy of damages. The trial court ordered a new trial upon the ground that the damages were inadequate unless defendant would consent to an increase to $1,500. The defendant consented, and the new trial was denied. Plaintiff appealed. The Supreme Court of the United States, by a five-to-four decision, reversed the judgment, holding that such procedure violated the Seventh Amendment to the United States Constitution, guaranteeing, in the federal courts, the right to a jury trial in civil actions. The opinions filed, both majority and minority, are lengthy and exhaustively discuss the question involved. The majority came to the conclusion that, while there were a few limited situations, not here analogous, at common law in which a court was permitted to increase jury awards, the power of additur did not generally exist at common law in unliquidated damage cases; that the fixing of damages in such cases was, at common law, a jury function; and that for the trial judge to attempt to fix the damages in such cases was a direct violation of the constitutional guarantee. The majority agreed that the power to remit conditionally a portion of the judgment with the consent of plaintiff existed in the federal courts, but held that were this question before them for the first time it was quite doubtful whether it would be upheld. Certainly, said the court, the power should not be extended to increase the verdict. The minority were of the view that the power of additur was a corollary to remittitur; that since the power to remit existed, the power to add should be recognized; that in either case the matter was one of procedure and not of substance.

In the present case, in support of the action of the trial court, the defendant argues that the courts of United States generally, and the courts of California in particular, have long recognized the power of remittitur, and urges that the power of additur is the corollary of that rule. It is true that the power of remittitur is recognized in many states, and reluctantly by the United States Supreme Court. See annotations 53 A.L.R. 779; 95 A.L.R. 1163. Whether such power existed at common law is a debatable question. In 1884 the Queen's Bench Division upheld the power of remittitur without the consent of defendant. Belt v. Lawes, L.R. 12 Q.B.D. 356. But in 1905 the House of Lords expressly overruled Belt v. Lawes in Watt v. Watt, L.R. [1905] A.C. 115, holding that the power of remittitur did not exist unless both parties consented. The basis of the holding was that the right of the jury to fix the amount of the damages in unliquidated damage cases is a fundamental part of the right to a jury trial.

In California several cases have recognized the power of the trial court to remit conditionally a portion of the verdict with the consent of plaintiff and against the will of defendant. Hepner v. Libby, McNeill & Libby, 114 Cal.App. 747, 300 P. 830; Werner v. Bryden, 84 Cal.App. 472, 258 P. 138. It may be that it is now the law in California that the power of remittitur exists, although there appears to be no case in which the matter has been thoroughly discussed. The United States Supreme Court distinguished between remittitur and additur in the Dimick case on the ground that the power of remittitur may have been recognized at common law in 1791 when the Seventh Amendment to the Constitution was ratified, while the power of additur was not. As already stated, the majority indicated that, were the problem of remittitur one of first impression, it probably would not have been sustained.

We think the answer to this argument based on the attempted analogy between remittitur and additur is this: If it is true that the pin-pointing of damages in unliquidated damage cases between the broad limits of inadequacy and excessiveness is fundamentally a power of the jury, then it would follow that the trial judge has no power, against the will of either party, to raise or lower the verdict. The only possible legal basis for upholding the power of remittitur is that such power existed at common law in 1849 when our Constitution was first adopted, and therefore, the constitutional guarantee was limited by the existence of this power. That is a weak prop with which to attempt to support the argument in view of the decision of the House of Lords in Watt v. Watt, supra, holding that no such right existed at common law. So far as the existence of the doctrine in United States is concerned, it appears that in some early cases—notably one by Mr. Justice Story, Blunt v. Little, Fed.Cas.No.1,578, 3 Mason 102—which case seems to be the key case on the subject—the courts simply assumed, without analysis and without discussion, that the power of remittitur existed. This decision of Mr. Justice Story was blindly followed by the federal courts and by many state courts without question or analysis. See discussion in Dimick v. Schiedt, 293 U.S. 474, 482, 483, 55 S.Ct. 296, 79 L.Ed. 603. The only argument offered in any of those cases in support of the power of remittitur is not based upon an investigation of the common law rule, or upon any analysis of the relative rights of a judge and jury in such cases, but is simply an argument of expediency—that is, that unless the power of remittitur exists, new trials will be required with the result that litigation will be protracted, the litigants will be subjected to the expense of new trials, and the time of busy courts will be consumed unnecessarily in trying cases anew. It is more efficient, so goes the argument, to permit the trial judge to fix, conditionally, the amount of damages than it is to require a new trial. Of course, these arguments might well lead to the conclusion that it is more ‘efficient’ and more ‘expedient’ to abolish jury trials entirely. The argument of expediency cannot justify the invasion of a fundamental and constitutional right. If expediency is to be the test, we might as well abolish written constitutions entirely. The argument that the end justifies the means should never be advanced as a justification for disregarding a constitutional mandate.

Thus, we are very doubtful of the soundness of the cases upholding the doctrine of remittitur, and believe that, upon proper analysis, the doctrine would and should be repudiated. As already pointed out, the only conceivable justification for the doctrine is that such doctrine existed at common law, and that argument is very doubtful indeed. No one can successfully argue that the doctrine of additur existed at common law. Just because the doctrine of remittitur has been held to exist, is no sound reason for extending the doctrine to include additur if the basis for remittitur is unsound. Simply because the courts improperly may have invaded the province of the jury in recognizing the power of remittitur does not justify the further invasion by the recognition of the power of additur. A precedent that at best is doubtful should not be blindly extended by analogy if the result will be to weaken constitutional guarantees. It is certainly a non sequitur to argue that, because the constitutional guarantee of a jury trial has been once disregarded, a second violation is not only justified but compelled.

The real question is whether the fixing of damages by a jury in controverted unliquidated law cases is a fundamental part of a jury trial or whether it is a mere matter of procedure. On principle there would appear to be no reasonable doubt but that the fixing of damages in a controverted and unliquidated damage case is fundamentally a jury power and not a power of the trial court. It further seems clear that this right to have a jury fix damages is substantive and not procedural. As was said by the United States Supreme Court in Dimick v. Schiedt, 293 U.S. 474, 485, 55 S.Ct. 300.

‘The right of trial by jury is of ancient origin, characterized by Blackstone as ‘the glory of the English law’ and ‘the most transcendent privilege which any subject can enjoy’ (Bk. 3, p. 379); and, as Justice Story said (2 Story on the Constitution, § 1779), ‘* * * the Constitution would have been justly obnoxious to the most conclusive objection if it had not recognized and confirmed it in the most solemn terms.’ With, perhaps, some exceptions, trial by jury has always been, and still is, generally regarded as the normal and preferable mode of disposing of issues of fact in civil cases at law as well as in criminal cases. Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care. Compare Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854.

‘The controlling distinction between the power of the court and that of the jury is that the former is the power to determine the law and the latter to determine the facts. In dealing with questions like the one now under consideration, that distinction must be borne steadily in mind. Where the verdict returned by a jury is palpably and grossly inadequate or excessive, it should not be permitted to stand; but, in that event, both parties remain entitled, as they were entitled in the first instance, to have a jury properly determine the question of liability and the extent of the injury by an assessment of damages. Both are questions of fact. Where the verdict is excessive, the practice of substituting a remission of the excess for a new trial is not without plausible support in the view that what remains is included in the verdict along with the unlawful excess—in that sense that it has been found by the jury—and that the remittitur has the effect of merely lopping off an excrescence. But, where the verdict is too small, an increase by the court is a bald addition of something which in no sense can be said to be included in the verdict. When, therefore, the trial court here found that the damages awarded by the jury were so inadequate as to entitle plaintiff to a new trial, how can it be held, with any semblance of reason, that that court, with the consent of the defendant only, may, by assessing an additional amount of damages, bring the constitutional right of the plaintiff to a jury trial to an end in respect of a matter of fact which no jury has ever passed upon either explicitly or by implication? To so hold is obviously to compel the plaintiff to forego his constitutional right to the verdict of a jury and accept ‘an assessment partly made by a jury which has acted improperly, and partly by a tribunal which has no power to assess.’'

These arguments are most convincing. It seems clear to us that in a controverted and unliquidated law case it is fundamental that the jury within certain broad limits has the power to fix the amount of damages. The boundaries between what is excessive and what is inadequate are widely separated. There is a broad band, not a thin line, within which the determination of the jury is conclusive. In terms of dollars it is not a pin point. It is not a specific figure, carried out to the second number beyond the decimal point. It is a wide range of figures, any one of which, in law, would be adequate, and neither inadequate nor excessive. It is a jury and not a court function to pin point the damages within this wide range. Certainly, if the legislature should attempt to provide that it was a court function to fix the amount of damages in such cases in the first instance, no appellante court would sustain such legislation. If a trial judge instructed a jury in such a case to bring in a verdict in a fixed sum, the resulting judgment would be reversed. In a very real sense that is what was done here. Once the trial judge came to the conclusion that the jury verdicts were inadequate as a matter of law and fact, he was required to set those verdicts aside. Having so determined, the jury verdicts could not stand and were, in legal effect, wiped out. To then fix the precise amount of the unliquidated damages without the consent of plaintiffs was for the trial court to fix those damages, and to deprive the plaintiffs of their constitutional right to have a jury fix those damages within the broad limits of the range permitted. The awards here under review are those of the court, not those of the jury. Once the court found that the damage were inadequate, the plaintiffs, as a matter of law, were entitled to a new trial. This was not a matter of grace or discretion of the trial court, but a right guaranteed by the Constitution itself. No amount of argument can change the fact that the judgment here appealed from is the result of improper verdicts brought in by the jury, plus arbitrary increases made by a court that just had no power to assess the increases.

The realities of such an invasion of a fundamental and constitutional right cannot be disregarded by rationalizing the process and calling it a ‘mere’ matter of ‘procedure’ and not one of substance. We all know that in some respects our legal procedure is slow and cumbersome and should be streamlined. We all agree that delays should be curtailed and unnecessary expense prevented. But under the guise of improving procedure the courts should not impair constitutional rights. The courts should be ever vigilant to uphold and to enforce constitutional guarantees, and should not impair them by calling the impairment a mere procedural matter. If there is to be a change in the substance of a jury trial in civil cases, that change should be accomplished by amendment of the Constitution, and not by the judicial fiat of a court. The right to a jury trial in all of its substantial parts is by no means an unimportant right to be disregarded at the whim or caprice of an appellant court because it is argued, rightly or wrongly, that it is more ‘expedient’ and ‘efficient’ for a trial judge to fix damages than it is to require them to be fixed by a jury.

This is not a case where the trial court has held that the maximum verdict that could be sustained by the evidence is $1,500 for Josephine and $3,000 for Beatrice. It may be that a trial court could properly find that a verdict is inadequate and then by conditional order fix the amount of the maximum verdict (i. e., a verdict any larger would be excessive) that could be sustained by the evidence. In such a case, it may be that if the defendant consents to this maximum figure the plaintiff could not legally object because he has received the maximum amount that the evidence would support. But no such finding was made in the instant case, and, had such a finding been made, it would not have been sustained by the evidence. Assuming that plaintiffs are entitled to general damages, and the trial court in its conditional order necessarily so found, as already pointed out, the judgment appealed from awards Josephine about $800 and Beatrice about $1,500 for general damages. The evidence of general damages has already been set forth. According to that evidence it is apparent that the record would support verdicts substantially in excess of the amounts fixed in the judgment. In other words, verdicts substantially in excess of the $1,500 and $3,000 could not be held to be excessive. What the trial court did in the rpesent case was not to determine the uppermost boundary beyond which the damages would be excessive, but to pin point the damages somewhere between the broad limits of inadequacy and excessiveness. That is not a trial court power, and its exercise denied to plaintiffs their constitutional right to have the jury determine that figure. This requires a reversal of the judgment against Vincent Barba and renders it unnecessary to consider plaintiffs' contention that even the awards made by the trial court were inadequate as a matter of law.

Although a reversal of the judgment against Vincent Barba is required, the retrial should be limited to the issue of damages. Vincent has not seen fit to appeal from the judgment. The jury has found that the negligence of Vincent was the proximate cause of the injuries sustained. That finding is amply and substantially supported. Under such circumstances it is unnecessary to try the issue of liability again. Taylor v. Pole, 16 Cal.2d 668, 675, 107 P.2d 614.

The judgment in favor of Catherine Barba is affirmed; the judgment against Vincent Barba is reversed on the appeal of both plaintiffs, and as to Vincent Barba the cause is remanded for a new trial solely upon the issue of the amount of damages, and the trial court is directed, upon the settlement of that issue, to enter judgment in favor of the plaintiffs for the amount so fixed.

I dissent from the majority opinion on the question of additur. As pointed out in that opinion, most of the writers on the subject favor the conclusion that additur does not violate the constitutional guarantee.1 In the true sense, there never has been an absolute right to jury trial in civil cases. Jury trials have always been subject to a certain amount of restriction by the court. Thus, the court always has had the right to set aside a jury verdict for insufficiency of the evidence, including excessiveness and inadequacy of damages. True, a new jury trial followed. But the second trial was also subject to the same restriction. Moreover, ‘it appears to be standard practice in California for trial courts to ‘impose terms and conditions on granting or denying motions for new trial,’ in actions tried to a jury as well as in those tried to a court.' Engle v. Farrell, 75 Cal.App.2d 612, 620, 171 P.2d 588, 593, Citing 20 Cal.Jur. 207. See Brooks v. San Francisco & N. P. Railway Co., 110 Cal. 173, 42 P. 570, where the court made an order granting a new trial for insufficiency of the evidence conditional upon the payment to the opposing party of a sum of money for counsel fees and costs. Requiring terms for a new trial after a jury verdict is certainly a limitation on the right to jury trial, yet the court said, 110 Cal. at page 174, 42 P. at page 571: ‘That a nisi prius court has the power to impose terms as a condition of making an order for a new trial is too well settled to need argument in its support.’ The majority opinion, in a sense, makes a fetish out of the words ‘right to a jury trial’ completely out of line with the historical and somewhat restrictive nature of that right, and with the realities and requirements of modern trial procedures.

The analysis of the California cases in the majority opinion shows that the power of additur over the objection of a plaintiff has not clearly been passed on in this state. Throughout the United States there seems to be a dearth of cases passing on the subject. In Ohio, Massachusetts and Pennsylvania, the right has been denied.2 In New Jersey and Washington3 the right has squarely been upheld over the objection of the defendant. Apparently Minnesota and Delaware follow the same rule.4 (I can see no practical difference between an objection by a nonconsenting defendant and one by a nonconsenting plaintiff.) In American Ry. Ex. Co. v. Bender, supra, footnote, 152 N.E. 197, 198, there is an implication that additur with consent of defendant is permissible. The Wisconsin practice has been discussed in the majority opinion.

California is squarely faced with the problem—shall additur be permitted? I am of the opinion that it should. One of the serious objections to our court system is that litigation can be, and is, unduly protracted. As said in 44 Yale Law Journal 318, ‘The efficiency of judicial administration is hampered by the granting of new trials, with theri concomitant delays in final adjudication and increased costs to litigants.’ It is incumbent on the courts to streamline, to some extent, at least, their procedure, and to do away with situations which cause unnecessary delays. Other conditions being equal, the court should control the litigation and reasonably curtail its length. Of course, in doing so the courts should not deny a litigant any of his fundamental rights. Trial by jury is a fundamental right. But, it has already been held in this state, as well as in most jurisdictions, that in exercising remittitur the courts are not denying a litigant that right. He has had his jury trial. The jury has fixed the liability and the court has merely designated the greatest amount which under the evidence could be allowed to stand. As said in Florida East Coast Ry. Co. v. Hayes, 67 Fla. 101, 64 So. 504, 506, 7 A.L.R. 1310, it is to the end of saving vexatious, expensive and prolonged litigation. ‘In this practice the court is not ‘substituting its judgment for that of the jury, * * * for this is not indicating what amount the court would have given, but only such amount as it would not feel at liberty to pronounce excessive.’' So, in additur, the court is allowing the amount which it feels would not be excessive. Were it not for this power, the case could drag on interminably. The court has the power to grant a new trial where the verdict is either excessive or inadequate. Without the power of additur the case might come back time after time until the jury fixed an amount which the court felt was neither excessive nor inadequate. Instead of going through this circumlocution, why should the court not indicate this amount the first time?

I find it hard to distinguish on principle between remittitur and additur. Nor can I find any real difference in the distinction claimed, namely, that where the court reduces a jury award, the reduction is within the amount found by the jury, but where the court increases the amount it is beyond the amount found by the jury. This distinction is given in the quotation from Goldsmith v. Detroit, J. & C. Ry., 165 Mich. 177, 130 N.W. 647, found in Werner v. Bryden, 84 Cal.App. 472, 475, 258 P. 138. In either event, the objecting litigant has been deprived of the right to have the amount of the final award fixed by a jury. In either event, strictly speaking, it is the court's, rather than the jury's, award. Yet, not only in California, but in most of the states and in the federal jurisdictions, the right of the court to decrease a jury's award has been upheld. This, too, in the federal jurisdictions and in certain states where the right of the court to increase the jury's award has been denied. I like the reasons for allowing additur given by Stone, J., in the dissent in Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, joined in by Hughes, C. J., Brandeis, J. and Cardozo, J.: ‘The other, which is implicit in the first, is that it has power to determine, as a matter of law, the upper and lower limits within which recovery by a plaintiff will be permitted and the authority to set aside a verdict which is not within those limits.’ 293 U.S. at page 488, 55 S.Ct. at page 302. ‘The trial judge who denies a motion for a new trial, because the plaintiff has consented to reduce, or a defendant has consented to increase, the amount of the recovery, does no more than when, sitting in equity, he withholds relief upon the compliance with a condition, the performance of which will do substantial justice. See City of Harrisonville, Mo. v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334, 338, 53 S.Ct. 602, 77 L.Ed. 1208.’ 293 U.S. at page 497, 55 S.Ct. at page 305.

As said in Rudnick v. Jacobs, supra, footnote, 183 A. 508, where the court stated that it was unable to understand the distinction between remittitur and additur, ‘There can be no doubt that the purpose in each instance is to promote justice between litigants. Why then, should be court grant a remittitur deducing the amount of an excessive verdict, thus saving the parties the expense of a new trial, and not take a similar course with respect to inadequate verdicts by making an order increasing the amount of such verdicts?’ 183 A. at page 510. Actually, both additur and remittitur are only a method of controlling the findings of the jury (a power which the courts have always had) and are not destructive of the substance of jury trial.

The majority opinion agrees, in effect, that additur should be permitted. It indicates that it would approve a type of additur in which the trial court, finding that a verdict is inadequate, could fix the maximum figure which it would permit the plaintiff to receive. Even in the case of such a conditional order, the plaintiff thereby is being deprived of the right to a jury trial. While, in our case, the judge did not state that the amount allowed was the maximum figure which, in his opinion, the evidence would support, it must be presumed that it was, because a judge, in passing on the adequacy or inadequacy of a verdict, must have that in mind. Paraphrasing what is said in Stone, J.'s dissenting opinion in Dimick v. Schiedt, supra, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603,—in the proper exercise of the power of additur the trial judge is determining, as a matter of law, the upper limits in which recovery by a plaintiff will be permissible, and exercising his authority to set aside a verdict which is not within those limits. The majority opinion indicates that the evidence would have supported a higher verdict. In doing so, it had in mind undoubtedly the cold record which the appellate court sees. It overlooks the fact that it is the trial judge who saw the witnesses who determines in the first instance what is the maximum amount. There were no permanent injuries in this case, other than scars (most of which would be removed by the plastic surgery for which the cost was allowed). Obviously the trial judge, whose duty it is to determine the credibility of the witnesses, did not believe that the temporary injuries were as serious as the plaintiffs testified. He, far better than this court, could determine what was the maximum figure the evidence justified.

As to the California Constitution guarantee of jury trial, the language of Stone, J., in the Dimick case, supra, concerning the federal Constitution, is appropriate; namely, that the constitutional provision did not have ‘any purpose but to preserve the essentials of the jury trial as it was known to the common law * * * For that reason this Court has often refused to construe it as intended to perpetuate in changeless form the minutiae of trial practice as it existed in the English courts * * *.’ 293 U.S. at page 490, 55 S.Ct. at page 303. ‘It does not restrict the court's control of the jury's verdict, as it had previously been exercised, and it does not confine the trial judge, in determining what issues are for the jury and what for the court, to the particular forms of trial practice in vogue in 1791.’ 293 U.S. at page 491, 55 S.Ct. at page 303. ‘* * * [I]t is evidence that the jury's function has not been curtailed. After the issues of fact had been submitted to the jury and its verdict taken, the trial judge was authorized to entertain a motion to set aside the verdict and, as an incident, to determine the legal limits of a proper verdict. A denial of the motion out of hand, however inadequate the verdict, was not an encroachment upon the province of the jury as the common lw defined it.’ 293 U.S. at page 492, 55 S.Ct. at page 303. Stone, J. also pointed out that the fact that no English judge had considered the possibility of denying a new trial where the defendant had consented to increase the amount of recovery (except in mayhem and battery cases where it had been allowed) should not be controlling, for ‘if we must deny any possibility of change, development, or improvement, then it must be admitted that search of the legal scrap heap of a century and a half ago may commit us to the incongruous position in which we are left by the present decision: A federal trial court may deny a motion for a new trial where the plaintiff consents to decrease the judgment to a proper amount, but it is powerless to deny the motion if its judgment is influenced by the defendant's consent to a comparable increase in the recovery.’ 293 U.S. at page 495, 55 S.Ct. at page 304. Substitute ‘state trial court’ for ‘federal trial court’ in the foregoing sentence, and we have our present situation. Stone, J. also points out that one of the principles of the common law, ‘certainly as important as any other, and that which assured the possibility of the continuing vitality and usefulness of the system, was its capacity for growth and development, and its adaptability to every new situation to which it might be needful to apply it. * * * [T]he common-law rules, governing the admissibility of evidence and the competency of witnesses in the federal courts are not the particular rules which were in force in 1791, but are those rules adopted to present day conditions, ‘in accordance with present day standards of wisdom and justice rather than in accordance with some outworn and antiquated rule of the past.’ Funk v. United States, supra, 290 U.S. [371] 382, 54 S.Ct. 212, 215, 78 L.Ed. 369; see also Wolfle v. United States, 291 U.S. 7, 12, 54 S.Ct. 279, 78 L.Ed. 617; Holden v. Hardy, supra, 169 U.S. [366], 385–387, 18 S.Ct. 383, 42 L.Ed. 780.' 293 U.S. at pages 495–496, 55 S.Ct. at page 305.

‘To me it seems an indefensible anachronism for the law to reject the like principle of decision, in reviewing on appeal denials of motions for new trial, where the plaintiff has consented to decrease the judgment or the defendant has consented to increase it by the proper amount, or to apply it in the one case and reject it in the other. It is difficult to see upon what principle the denial of a motion for a new trial, which for centuries has been regarded as so much a matter of discretion that it is not disturbed when its only support may be a bad or inadequate reason, may nevertheless be set aside on appeal when it is supported by a good one: That the defendant has bound himself to pay an increased amount of damages which the court judicially knows is within the limits of a proper verdict.’ 293 U.S. at page 497, 55 S.Ct. at page 305. Again, I point out that Hughes, C. J., Brandeis, J. and Cardozo, J. concurred in the views of Stone, J.

‘In neither the case of remittitur nor of additur of damages is the original amount of damages as fixed by the jury retained. Hence, if a remittitur is not regarded as a substantial deprivation of trial by jury on the question of damages, an additur realistically cannot be regarded as such, in spite of the argument that the jury has already passed on the lower amount when it granted the greater sum.

‘It is further contended that the plaintiff is prejudiced to a greater degree in a case of additur than the defendant is in a case of remittitur—the loss occasioned by a denial of the chance to have a more favorable verdict from a second jury. It is submitted that this is unsound because in both instances the loss is the same—each party loses the chance of a more favorable verdict on a re-trial.’ (14 So.Cal.L.Rev. p. 491.)

In view of the long continued practice of compelling remittitur to excessive damages as the alternative to a granting of a new trial, courts should not hesitate to compel additur to inadequate damages as the alternative to the granting of a new trial, thereby saving further litigation, long delays, additional costs, and the fact that the case might return against and again for the court's decision on inadequate damages.

FOOTNOTES

1.  The Constitution of 1849 contained the identical language, Art. 1, § 3, and, in addition, contained the word ‘forever’ at the end of the clause.

2.  See Walker v. New Mexico & Southern Pacific Railroad Co., 165 U.S. 593, 17 S.Ct. 421, 41 L.Ed. 837; Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919; Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188; People v. Powell, 87 Cal. 348, 25 P. 481, 11 L.R.A. 75; People v. Richardson, 138 Cal.App. 404, 32 P.2d 433; Clyne v. Brock, 82 Cal.App.2d 958, 188 P.2d 263; Moore v. Purse Seine Net, 18 Cal.2d 835, 118 P.2d 1.

3.  See 44 Yale Law Journal 318. 32 Michigan L.Rev. 538; 23 Cal.L.Rev. 536; 35 Cal.L.Rev. 150; 14 So.Cal.L.Rev. 490; McCormick on Damages, § 19, p. 76; 2 McBaine on California Trial and Appellate Practice, p. 161, § 799.

1.  See majority opinion, 226 P.2d 683.

2.  See American Ry. Ex. Co. v. Bender, 20 Ohio App. 436, 152 N.E. 197; Shanahan v. Boston & N. St. Ry. Co., 193 Mass. 412, 79 N.E. 751; Lemond v. Campbell, 136 Pa.Super, 370, 7 A.2d 463; Raymond L .J. Riling, Inc., v. Schuck, 346 Pa. 169, 29 A.2d 693.

3.  See Gaffney v. Illingsworth, 90 N.J.L. 490, 101 A. 243; Clausing v. Kershaw, 129 Wash. 67, 224 P. 573.

4.  See Marsh v. Minneapolis Brewing Co., 92 Minn. 182, 99 N.W. 630; Rudnick v. Jacobs, 7 W.W.Harr.Del. 348, 183 A. 508 (plaintiff's appeal).

BRAY, Justice.

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