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District Court of Appeal, Fourth District, California.

Barbara CROWE and Ellen Lowe, Plaintiffs and Respondents, v. Frank W. SACKS, Defendant and Appellant.

Civ. 4772.

Decided: October 29, 1954

Eugene S. Ives, Los Angeles, for appellant. Parker, Stanbury, Reese & McGee, Los Angeles, for respondents.

A jury rendered a verdict in favor of plaintiffs and respondents Barbara Crowe in the sum of $8,500 and Ellen Lowe in the sum of $11,000, against the defendant and appellant Frank W. Sacks.

Plaintiffs are sisters and were vacationing together at Twenty-nine Palms. On the morning of June 28, 1951, they had driven in to Twenty-nine Palms to post some letters. Mrs. Crowe was driving a 1951 Ford convertible with the top down. Mrs. Lowe was sitting in the front seat with her. They were returning home, traveling south on Cairo Road, which ran generally in a northerly and southerly direction. They intended to turn to their right onto Two-mile Road, which ran generally in an easterly and westerly direction, which road would lead them back to their Motor Court. Cairo Road and Two-mile Road are paved black-top roads, each approximately 24 feet wide. Two-mile Road sloped gradually downhill from west to east to the intersection. There is a curve in that road about one-fourth mile west of its intersection with Cairo Road and there is a dip so deep that a car is hidden from sight in it, looking from Cairo Road. The surrounding territory is open country. There are no buildings near the intersection except a house on the northwest corner which did not obstruct either driver's vision of the intersection. The only sign at this intersection was a 4″ x 4″ upright post with the names of the streets on it.

Defendant Sacks was driving a 1947 Chevrolet automobile in an easterly direction on Two-mile Road. Plaintiff Mrs. Crowe, the driver, testified that as she approached the intersection she looked three times both to the right and to the left to see whether or not any cars were coming on Two-mile Road, and that she saw none; that she was then going 25 miles per hour. On cross-examination she testified she was going 15 to 20 miles per hour and had shifted to second gear as she approached and entered the intersection; that the first time she saw defendant Sacks' car the rear end of her car was on the north edge of the prolongation of the intersection and the rest of her car was in the intersection; that defendant Sacks was then approximately 100 feet west of the west edge of the intersection and going 65 miles per hour; that the point of impact was in the intersection 7 feet south of the center line of Two-mile Road and 2 1/2 feet west of the center line of Cairo Road; that the right front fender of her car collided with the left front fender of defendant Sacks' car; that she traveled only 3 to 4 feet from the time she first saw defendant's car to the time of the impact. Plaintiff Mrs. Lowe corroborated Mrs. Crowe's testimony.

Defendant Sacks testified he was going in an easterly direction on Two-mile Road, traveling about 35 miles per hour as he approached the intersection; that he thought Mrs. Crowe was going to stop her car but that when she did not stop he applied his brakes to avoid the accident but was unable to do so; that Mrs. Crowe actually appeared to him to increase her speed prior to the accident; that he ‘blew his horn’ and swerved to his right without avail. Both plaintiffs were severely injured as a result of the accident.

Defendant now argues on appeal that plaintiffs were both guilty of contributory negligence as a matter of law, citing Smellie v. Southern Pac. Co., 212 Cal. 540, 562, 299 P. 529. Defendant does not contend that the evidence is in any way insufficient to support the finding of the jury that the defendant was guilty of negligence proximately causing the accident, nor is there any contention made that the amount of the verdict and judgment in favor of the plaintiffs are excessive or are unsupported by the evidence. This court must accept as true all evidence tending to establish the correctness of the finding or verdict, and it must consider it in the most favorable light toward the prevailing parties and give to them the benefit of every favorable inference that can reasonably be drawn in support of their claim. Porter v. Signal Trucking Service, 59 Cal.App.2d 289, 293, 138 P.2d 753. See also Lobdell v. Miller, 114 Cal.App.2d 328, 346, 250 P.2d 357. A mere examination of the evidence dispels any claim that plaintiffs were guilty of negligence as a matter of law.

Some claim is made that the trial court erred in refusing to give defendant's proffered instruction on the doctrine of joint enterprise as applied to plaintiffs. Suffice it to say on this point that the question of the personal negligence of Mrs. Lowe, the passenger, and the question of the personal negligence of Mrs. Crowe, the driver, were each separately submitted to the jury with proper instructions, and findings thereon were made adverse to defendant. By its verdict the jury determined that neither plaintiff was guilty of contributory negligence. The refusal to give the proffered instruction, under the evidence submitted, was not error and did not result in any prejudice to defendant. Edwards v. Freeman, 34 Cal.2d 589, 212 P.2d 883.

A close question arises as to the propriety of the action of the trial judge in ordering the jury to reconsider its verdict. It appears from the record that after several hours of deliberation the jury returned into court and the following proceedings were had.

The court inquired if the jury had reached a verdict. It was handed to the court and without announcing its contents the court stated that it appeared that the jury had determined the issue of liability in favor of the plaintiffs but it did not feel that the jury had adhered to the law or done its duty insofar as the amounts of the verdicts were concerned because the special damages approximated the amounts indicated in the verdicts and accordingly the jury had allowed little or no damages for pain or suffering or further loss of wages. The judge then asked the jurors if they would like to reconsider the verdict because in his opinion the jury was obviously compromising the issue of negligence and that if the defendant was negligent the verdict should have been commensurate with the actual damages found to have been suffered by the plaintiffs and each of them. He announced that in his opinion the verdict was ‘grossly inadequate’, whereupon one juror announced: ‘This is a compromise verdict’. The court then ordered the jury to return for further deliberations. Counsel for defendant cited the court's remarks as error and as a coercion of the jury, and objected to the jury being sent back to consider only the question of damages. Thereupon, the court ordered the return of the jury and further instructed them that they must consider not only the question of damages but also the issue of negligence and all issues involved, and that its verdict should not be based upon a compromise.

It thereafter returned a verdict in favor of plaintiffs in the amounts above set forth. Counsel for defendant moved that the amounts mentioned in the original verdict be included in the minutes of the court. The court announced that the amounts contained in the verdict as first proposed were in the sums of $2,500 in favor of plaintiff Barbara Crowe, and $3,000 in favor of Ellen Lowe. The court took the motion under advisement, but it does not appear that any ruling was made thereon.

It is defendant's claim that a proper verdict was rendered by the jury in the first instance; that the court had no right or power to ask it any further questions as to the verdict, particularly after declaring that the verdict was grossly inadequate; that it was prejudicial error and a usurpation of the function of the jury by the trial judge under the circumstances to return the jury for further consideration, citing such cases as Langdon v. Superior Court, 65 Cal.App. 41, 44, 223 P. 72; Dorsey v. Barba, 38 Cal.2d 350, 240 P.2d 604; and Howell v. Ducommon Metals & Supply Co., 101 Cal.App.2d 163, 225 P.2d 293, holding in effect that issues of fact shall be decided by a jury, and assessment of damages is ordinarily a question of fact; that the jury, as a fact-finding body, occupies so firm and important a place in our system of jurisprudence that any interference with its function in this respect must be examined with the utmost care; and that it is generally recognized that a court may not increase an inadequate award in a case involving contested and unliquidated damages without the defendant's consent. The claim is that in the instant case the trial judge, in returning the jury to the jury room to reconsider, after stating that he considered the verdict grossly inadequate, usurped the functions of the jury and impressed his will over that of the jury, citing the Seventh Amendment to the Constitution of the United States and Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, cited with approval in Dorsey v. Barba, supra. It is further claimed that sections 618 and 619 of the Code of Civil Procedure have no application and are not authority for a trial judge to return the jury to the jury room when the verdict returned is a compromise verdict; and that these sections make no reference to compromise verdicts. It is further claimed that the trial judge had his power on a motion for new trial to remedy the situation, citing Rose v. Melody Lane, 39 Cal.2d 481, 247 P.2d 335; Leipert v. Honold, 39 Cal. 462, 469, 247 P.2d 324, 29 A.L.R.2d 1185; and 53 Am.Jur. p. 714, sec. 1033.

Section 618 of the Code of Civil Procedure provides that upon the return of a verdict, and after polling of the jury, if more than one-fourth of the jurors disagree thereto, the jury must be sent out again. Section 619 provides that when the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out. Apparently this last provision is the one on which plaintiffs rely to justify the action of the trial court in sending the jury out to reconsider its verdict. The question is, do the facts here related come within the provisions of that section.

In Logan v. Lewis, 35 Cal.App. 663, 170 P. 851, 852, [Hearing denied by the Supreme Court] a jury verdict was returned assessing general damages at $3,240, and compensatory damages for nursing and medical care, etc., at $400. When the verdict was read counsel for plaintiff, fearing that perhaps this sum was larger than was warranted by the evidence, suggested to the court that it advise the jury to reconsider the verdict. This, with proper instructions, was done, and after further deliberation the jury returned a second verdict reducing the special damages to the sum of $285, and adding the difference to the general damages, thus leaving the gross amount of the verdict the same as before. The Court, in sustaining the second verdict and judgment rendered thereon, said:

‘Inasmuch as the verdict of the jury had not been recorded nor the jury discharged, we think the court was warranted in permitting the jury to make this amendment.’ (Citing Code Civ.Proc., sec. 619; 38 Cyc. 1893, 4; 22 Ency. Pl. & Pr. 967, 8; McNutt v. Pabst, 25 Cal.App. 177 [143 P. 77]; Conlin v. Emanuel Lewis Inv. Co., 26 Cal.App. 388, 147 P. 472.)

This holding was affirmed in Redo y Cia v. First National Bank, 200 Cal. 161, 166, 252 P. 587, 589, where the court had instructed the jury that in the event they found or concluded that appellant was entitled to recover from the respondent such recovery was to be for $4,140 together with interest. The jurors entirely disregarded the law as set forth in the court's instructions and brought in a verdict opposed thereto. In disposing of this contention the Supreme Court said:

‘In our opinion the lower court very properly declined to accept such a verdict and acted within its province when it instructed the jury to again retire and bring in a verdict in conformity with the instructions.’ And said: ‘While the trial judge may not interfere with or control the jury in passing upon the evidence, he nevertheless exercises a salutary supervisory power over their verdict. * * * It is the province and the duty of the court to instruct the jury upon the law, and such instructions are binding on the latter in its deliberations. * * *

‘We are of the view that the change made in the verdict constituted an amendment which could properly be made before the verdict had been recorded and prior to the discharge of the jury. This amendment was necessary so that the verdict would be in conformity with the instructions. We do not regard as significant the fact that the amendment was made by the jury under compulsion. If it were held otherwise ‘the refractory jurors would be able to compel a new trial and thus defeat the exercise by the court of a power which it clearly possesses.’ Estate of Sharon [179 Cal. 447, 177 P. 283].

‘When the court instructed the jury as to the lawful limit of liability on the part of the defendant, if the jury should find the defendant liable at all, the court thereby indicated the only amount for which a judgment could lawfully be rendered. The jurors were not at liberty to refuse obedience to this instruction.’

In Sparks v. Berntsen, 19 Cal.2d 308, 121 P.2d 497, the jury returned a verdict for $5,000 plus attorneys' fees, etc. The court ordered the jury to return and omit the question of attorneys' fees, and reminded the jury that it had instructed it upon the proper measure of damages and that attorneys' fees were not allowable. The jury returned a verdict for $7,500 and omitted the item of attorneys' fees. The Supreme Court sustained the latter judgment and held that the trial court was within its powers to direct the jury to retire and reconsider the verdict.

In Megee v. Fasulis, 65 Cal.App.2d 94, 150 P.2d 281, 286, the court sent the jury back for further deliberation after it had returned a verdict in favor of the plaintiff for general damages in the sum of $3,264.56. The jury added an amount for special damages and there was no evidence of special damages. The jury was told that it could not award special damages because the court felt that there was not sufficient evidence to sustain such an award. The jury was told to retire and return a verdict either for the defendant or for the plaintiff, but in accordance with the court's instructions. The jury returned with a verdict in favor of the plaintiff for $5,000. The defendant contended on appeal that where a jury returns a verdict which does not conform to the evidence, the proper method of correction is not by having the jury rewrite the verdict until it does conform, but by granting a new trial at the request of the injured party; that although the original verdict was without support insofar as the award of special damages was concerned, yet it was nonetheless the verdict of the jury; that it was prejudicial error for the court to permit the jury, after having been polled, to return a second and different verdict; that the second verdict was a nullity, and that the judgment was based upon no verdict at all. In disposing of this contention the appellate court said:

‘We know of no rule which demands that a case be retried under such circumstances. To do so would be to deny the very purpose and intent of Section 619 of the Code of Civil Procedure, wherein it is provided that when the verdict is announced, if it is informal or insufficient, in not covering the issues submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out.’

In support of this holding see also Simon Newman Co. v. Woods, 85 Cal.App. 360, 259 P. 460; Awbrey v. DeRose, 98 Cal.App. 223, 276 P. 1080; Toon v. Pickwick Stages, 95 Cal.App. 370, 272 P. 797; Herricks v. Hennessey Co., 110 Cal.App. 654, 294 P. 739; Brown v. Regan, 10 Cal.2d 519, 75 P.2d 1063; McNutt v. Pabst, 25 Cal.App. 177, 143 P. 77; 53 Am.Jur. p. 714, sec. 1033; and Simmons v. Fish, 210 Mass. 563, 97 N.E. 102, Ann.Cas.1912D, 588.

The conclusion is then that where a jury returns a verdict that is contrary to the instructions of the court, the court may refuse to accept the verdict and send the jury back with further instructions. In such a case if the jury returns with a proper verdict it constitutes an amendment which may properly be made before the recordation of the verdict. Redo y Cia v. First National Bank, supra. Here the trial court instructed the jury that if it should find that plaintiffs were entitled to a verdict against defendant it was its ‘duty to award the party so entitled such amount of damages as will compensate her reasonably for all detriment suffered by her * * *’, which included certain specific special damages enumerated by the trial court. This was followed by an instruction in the langauge of BAJI No. 174–L, preceded by the instruction BAJI No. 174–K, that the jurors' decision on the question of such damages may not be arbitrary, but must be founded on the evidence produced.

As to Barbara Crowe, she testified she was 38 years of age, had been a receptionist and PBX operator at a hospital at a salary of $215 per month but was forced to quit her work on account of her nervous condition and stiff neck caused by the accident occurring on June 28, 1951; that she went back to work on July 10, but was only able to work for one day and was unable to arise from her bed the next day due to her neck injuries; that she was treated by a doctor thereafter and placed in the hospital; that she was taken to surgery and placed in a traction with heavy weights and a pulley attached to her neck; that she remained in the hospital about one week; that she thereafter wore a ‘Nelson Collar’ to keep her head perfectly still; that she wore this collar many weeks, and for about five months, at night she had to sleep in traction to relieve the pressure on her neck; that she worked intermittently at her position from July until September 26th, when she was compelled to quit working on account of the pain in her neck, arm and shoulder and general nervous condition; and that she did not return to work again until 1952. At the time of trial in May, 1953, she testified she felt no better and still suffered the same pain. It appears that the traction and harness used by her was rented, and counsel for defendant stipulated that the bills there in evidence had been contracted by her and were necessarily incurred for her treatment and were reasonable in amount. These bills exceeded the sum of $900. The bills in evidence pertaining to Mrs. Lowe exceeded the sum of $1,800.

The doctor who cared for the plaintiffs testified that Mrs. Crowe had a ‘luxation of the cervical spine’, concussions, contusions, and abrasions, and that she suffered considerable pain in the region of her neck and arm and that whether she will completely recover and suffer no pain was ‘a big question’. As to Mrs. Lowe, he testified the X-ray pictures showed a fracture of the pelvis; that when she was in the hospital she had a small cast around the middle of her body and there were a mass of bruises all over her body, a two-inch deep scalp laceration, a concussion of the brain, and that it was later discovered she had a broken back (fracture of the lumbar vertebra L–1); that he examined her again the April, 1953, and she still complained of pain in her back, and the predictions are that it will be permanent; and that the fraction of the pelvis had healed. He testified that Mrs. Lowe was employed at the hospital at the time of the accident, and while she was lying in bed with her injuries she carried on part of her duties by consulting with the other employees and that the hospital retained her on her whole salary but that she did not work full time until October 1st, 1951.

While the trial court might well have disposed of the matter under a motion for new trial, in view of the decisions above related we are inclined to the conclusion that no prejudicial error resulted from the course pursued by the trial court under the evidence here presented. It is the rule that the trial judge may not interfere with or control the jury in passing upon the evidence, but nevertheless he may exercise a salutary supervisory power over its verdict. It is the province and the duty of the court to instruct the jury upon the law, and such instructions are binding on the latter in its deliberations. Inasmuch as the verdict of the jury had not been recorded nor the jury discharged, we believe the court was warranted in permitting the jury to make this amendment.

Judgment affirmed.

GRIFFIN, Justice.

BARNARD, P. J., concurs.

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