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District Court of Appeal, Fourth District, California.


Civ. 4675.

Decided: May 27, 1954

Baker, Palmer & Wall, Bakersfield, for appellant Oilfields Trucking Co. Jack W. Bradley, Bakersfield, for appellant Phoenix Const. Co. Oscar F. Catalano, Bakersfield, for respondent.

Plaintiff brought this action for damages against defendant Oilfields Trucking Company, a corporation (hereinafter referred to as Oilfields), defendant Phoenix Construction Company, a corporation (hereinafter referred to as Phoenix) and James Elbert Mason, driver of the tractor-trailer involved in an accident occurring about 10 p. m. on July 10, 1951.

The evidence shows that plaintiff and another truck driver had parked their respective trucks parallel to the east curbing on Highway 99, near Bakersfield, and across the highway from a small restaurant. These drivers were standing between their two parked trucks, engaged in checking or making some repairs to the front of the rear truck when the rear truck, which was fully lighted, was struck from behind by a tractor-trailer driven by defendant Mason, resulting in the death of one truck driver and the subsequent amputation of a greater portion of one leg and serious injury to the other leg of plaintiff Leming.

It is alleged that Mason was, at the time, an agent and employee of each corporation, which corporations were acting as joint venturers in a construction job, and that the agent was then acting within the scope of his employment.

The answers of the defendant corporations denied generally the allegations of the complaint and admitted that defendant Oilfields was the owner of the tractor-trailer involved, but alleged that Mason was not operating it with its consent or permission at the time, and alleged that he was not then operating it as their agent or employee within the scope of his agency.

A jury trial resulted in a judgment against all defendants for $212,585.69. The corporate defendants filed motions for new trial which were conditionally denied provided plaintiff agreed to accept reduction of said verdict to $117,400.20. Plaintiff refused and a new trial was had before a different jury and judge, which resulted in a verdict against the corporations for $213,480.02. Subsequent motions for new trial by each corporation were denied.

On appeal the questions presented by defendant Phoenix are limited to the claims: (1) That the evidence was insufficient to support the jury's necessary conclusion that defendant Mason, at the time of the accident, was acting within the scope of his employment by defendant Oilfields or within the scope of any agency relationship to either corporate defendant. (2) That the evidence was insufficient to support a judgment against Phoenix, as a joint adventurer of Oilfields, since Phoenix exerted no control over Mason. (3) That there was prejudicial error in instructing the jury on the issue of agency in the course of employment, especially with respect to the question of lack of consent or permission on the part of Oilfields to the operation of the vehicle at the time by Mason. (4) Excessive damages which appear to have been influenced by passion or prejudice.

Defendant Oilfields makes the additional claims: (1) That the jury was improperly instructed as to the law, and that the court erroneously refused certain proffered instructions. (2) That the evidence was insufficient to show agency of Mason at the time in question. (3) That if there was any liability imposed by reason of ownership of the tractor-trailer, the recovery was restricted under section 402 of the Vehicle Code.

The complaint, upon which plaintiff went to trial, stated a cause of action against defendant corporations based on the common-law doctrine of respondeat superior, and did not attempt to allege a cause of action based on statutory liability for imputed negligence under Vehicle Code, Sec. 402. The evidence, although in conflict in certain respects, sufficiently shows that Mason was an agent of both defendant corporations, which were operating as joint adventurers in the fulfillment of said contract for the construction of a job known as ‘Haypress Canyon Job’. The complaint alleges that Mason was, at the time, acting within the scope of his employment as to both corporations; that he was negligent and that the injuries sustained were a direct result of that negligence.

It is the time-honored rule that substantial conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the findings, if possible. Richter v. Walker, 36 Cal.2d 634, 226 P.2d 593; Crawford v. Southern Pacific Co., 3 Cal.2d 427, 45 P.2d 183.

The defendant corporations are enterprises of the Phoenix brothers of Bakersfield. Harry Phoenix was president of Oilfields and Vice President of Phoenix. Percy Phoenix was president of Phoenix and Vice President of Oilfields. The business of Oilfields was trucking or hauling for hire. The business of Phoenix was construction. The corporations conducted their operations from an area of eight to nine acres mutually occupied by them. They maintained in common their respective offices, shops, yards, garages, warehouses, storerooms, equipment and appliances. Prior to May 21, 1951, the two corporations entered into a written contract with the Division of Highways of the State of California, whereby they agreed to do certain road resurfacing known as the Haypress Canyon Job. It was located a distance estimated about 20 miles east of Bakersfield. This contract was made by defendant corporations as joint venturers and they were so designated therein. This fact was confirmed by the testimony of an officer of each corporation. The corporations had previously engaged, as joint venturers, on similar jobs. Oilfields owned approximately 175 trucking units and employed about 90 truck drivers. One Butler was its personnel superintendent. He hired Mason, who had previously worked for that company, as a truck driver, on June 14, 1951. He assigned Mason to the Haypress Canyon Job for the duration thereof, as driver of tractor No. 382, combined with a trailer on which was mounted a cement spreader required on the job. The tractor, as well as the trailer, was owned by Oilfields. The cement spreader, mounted on the trailer, was owned by Phoenix. The yards of the corporations were on the west side of Highway 99, south of Bakersfield, and were operated on a 24-hour schedule. Dispatch officers were there maintained. The usual routine or system adopted or followed in the yards in dispatching drivers and equipment was described. Some confusion exists as to whether the usual dispatching orders were to be applied to Mason. Mason had operated a cement spreader on the job from Monday to Friday of each week and it was his duty to be there when the trucks were bringing bulk cement to the job, from 2 o'clock in the morning on, and to assist in unloading them. He slept at the job site in his own car in a convertible bed. Each Friday night he would drive the cement spreader equipment from the job site to the Bakersfield yards of defendants for service and would pick it up again about 4 or 5 o'clock each Monday morning. On July 9th, he returned the spreader to the yards on account of a breakdown of the pug mill. About 5 p. m. on July 10th, the spreader was ordered back on the job by the superintendent of the joint venture, and the dispatcher was unable to locate Mason. He was finally located at about 6 o'clock that evening and told to be at the Haypress Canyon Job the following morning about 5 or 6 a. m., ready to go to work with the spreader.

Mason and one Smith and two girl friends drove around in Mason's car for a while. Mason said he had one drink of Vodka mixed with orangeade. About 9:30 p. m. he drove to the yards of defendant corporations and took from the Oilfields yards the tractor which he had previously used, went to the Phoenix yards and hooked up the trailer and cement-spreading device and drove out on the highway, without notifying the dispatcher of his intended departure. He was going to take it to the job so it would be there the next morning. Smith was to take Mason's private car out and meet him there. As Mason proceeded northerly and easterly on the usual route taken by him to the job site he drove his truck into the rear end of the parked truck, resulting in the injury described.

There is considerable testimony by the dispatcher of the defendant corporations that according to custom Mason was not to take the trucks and trailers without an order, and that it was not his usual custom to take them until an early morning hour, so as to be on the job about 5 a. m.; that on this particular evening Mason did not receive any orders to take the truck at the time it was taken, and did not inform the dispatcher of such fact; that the dispatcher noticed the truck leaving the yard without sufficient lights and the dispatcher immediately notified an agent of the company, who proceeded down the highway to notify Mason of that fact, and found that the accident had happened. Apparently, there was no claim made at that time that Mason had been or was then using the equipment in any unauthorized manner.

Upon this evidence defendants contend that it was conclusively shown that the taking of the equipment, at the time it was taken, was without the consent or permission of defendants.

The evidence and reasonable inferences to be drawn therefrom, although in conflict, might indicate that it was Mason's duty to drive the equipment back to the job site for the early morning work; that on past occasions Mason selected the time; that on some occasions it was as early as 4 o'clock in the morning, and on those occasions he was not required to report to the dispatcher before leaving and that no record was kept during that time of his arrival or departure; that he selected the route he was to travel; that his orders could well have been construed to mean that he was expected to be on the job with the spreader at 5 o'clock in the morning on July 11th, without any designation as to the time when he should leave. There is testimony that Mason was definitely told, by his foreman, to be at the yards at 5 a. m., pick up his equipment, and be on the job at 6 a. m. Mason testified he was told to report to the job at 5 o'clock in the morning, and not to go ‘out prior to morning’; that he usually picked up the equipment about 4 a. m. and it was not the company's habit to allow drivers to go out at night. Apparently Mason left earlier than usual so he could sleep in his car at the job site. He had arranged to have some one drive his car there for him.

Although there is a decided conflict in the evidence, the record contains sufficient evidence that Mason was acting within the scope of his employment when the accident took place, and with the express or implied consent of his employers. The liability of Mason's employers or employer, for the results of Mason's negligence, arising under the doctrine of respondeat superior, apparently rested upon the disputed question whether Mason was or was not an agent of defendant corporations at the time of the accident, and whether he had the permission, either express or implied, to be using the equipment at that time.

Although Mason was paid by Oilfields' payroll check, it was established that the job had one general foreman and it was upon his orders that Mason was recalled to the job that night with orders to return the tractor-trailer and spreader for the purpose of further work then and there contemplated. The evidence clearly established a joint venture and that the defendant corporations, as joint venturers, did exercise control over the agent Mason. Negligence of one joint venturer is imputed to the others. Shook v. Beals, 96 Cal.App.2d 963, 970, 217 P.2d 56, 18 A.L.R.2d 919; Hupfeld v. Wadley, 89 Cal.App.2d 171, 175, 200 P.2d 564.

A serious question arises in regard to the complaint of Oilfields pertaining to the failure or refusal of the court to give a portion of its proffered instruction which recites generally that if the jury believed that the taking of the equipment, at the time, was without its permission or consent, then its verdict must be in favor of that defendant. The court did give a portion of the proffered instruction reciting that the special defense set forth in the answer contained such a claimed defense, but refused to give defendants' instruction based on that defense. This was clearly error unless the proffered instruction was otherwise sufficiently covered by other instructions. Varner v. Skov, 20 Cal.App.2d 232, 67 P.2d 123; Schellenberg v. Southern Cal. Music Co., 139 Cal.App. 777, 35 P.2d 156; Plotts v. Albert, 120 Cal.App.2d 105, 260 P.2d 621.

The court did give general instructions that the acts and omissions of an agent, done within the scope of his authority, are, in contemplation of law, the acts and omissions respectively of the corporation whose agent he is at the time of the events out of which the accident occurred, but that if an agent engages in a pursuit suggested solely by his own pleasure or convenience and while so engaged negligently commits a tort, the principal is not answerable although he was using the principal's property. These instructions, although covering the subject matter to some limited extent, did not completely point out to the jury the law as it should be applied to the defense pleaded. Since this was, practically speaking, the only defense defendants had to rely upon, and since contributory negligence was not pleaded, the jury should have been fully instructed in this respect. Rock v. Orlando, 100 Cal.App. 498, 280 P. 377.

The next instruction given was offered by Phoenix and was patterned somewhat after BAJI No. 54–E, p. 66, to the effect that if the jury finds that Mason was an agent of Oilfields and was, at the time, driving a truck owned by it, then the jury may infer therefrom that he was acting as agent for such corporation and within the scope of his authority; that this inference did not necessarily apply to defendant Phoenix since it did not own the truck involved, and since ‘the evidence has established that Mason was an employee of Oilfields'; that the jury was not compelled to draw such inference but may do so if, after considering the evidence, reason and discretion so dictated.

The main complaint to this instruction raised by Oilfields is that the court therein instructed the jury that Mason was in fact the agent of Oilfields; that since the issue of agency, at the time, was disputed, the instruction was erroneous. As will be noted in the given instruction, the court did instruct the jury that Mason was, as a matter of fact, an employee of Oilfields. Although Mason was a daytime employee of Oilfields, the question as to whether he was an employee or agent should have been left to the jury to determine. Although, in this and other instructions, the jury was told that the question whether Mason was an agent of defendants, at the time, was a question of fact for the jury to determine, the giving of this instruction may well have confused the jury and indicated to it that Mason was Oilfields' agent, at the time involved, and that thereby an inference arose that he was driving the truck with the owner's permission and was acting within the scope of his authority because the truck was owned by Oilfields. Accordingly, this was an erroneous instruction. If any inference of agency or employment, by virtue of ownership and permissive use of the vehicle by another, under the theory of imputed negligence is relied upon by plaintiff and is to be applied, then section 402 of the Vehicle Code would restrict the amount of the judgment against the owner to $5,000.

Plaintiff's pleadings made no mention of liability under section 402 of the Vehicle Code and he must rely upon the doctrine of respondeat superior to justify the recovery sought. Under that section (paragraph (b) liability for imputed negligence imposed is limited unless it arises ‘through the relationship of principal and agent or master and servant’.

The joint contention of defendants that the verdict, on its face, appears to be excessive and was motivated by passion and prejudice appears to be meritorious and is deserving of a full consideration of the evidence tending to support it.

Plaintiff, at the time, was 47 years of age and his life expectancy was fixed at 23.08 years. He was earning $410.41 net each month, as a truck driver. He sustained an amputation of the right leg at the upper third of the right femur. It was the opinion of the plaintiff's medical expert that plaintiff would never be able to wear a prosthesis or artificial leg or pylon, and that so-called phantom pains described by plaintiff would be permanent. Plaintiff sustained fractures of the left leg. They extended into the knee joint resulting in a shortening of the leg, and restricting motion and flection. The medical expert testified that plaintiff must continually wear a steel brace to support that leg for the remainder of his life. Plaintiff was in the hospital eight and a half months. He now claims to suffer from a ‘ringing in the ears' due to the inordinate quantity of drugs administered him in the hospital. There is testimony that this condition may be permanent and that plaintiff will need the services of a nurse to assist him for the balance of his life, and he will require medical attention during that period.

The items, as indicated to the jury, constituting the claim for damages were as follows:

Respondent contends that the difference between the proved special damages, both past and future, and the amount of the judgment, i. e., $213,460.02, amounting to $38,201.60, is a reasonable amount for mental suffering, pain and physical discomfort reasonably certain to continue in the future, citing Johnston v. Long, 30 Cal.2d 54, 181 P.2d 645; Roedder v. Lindsley, 28 Cal.2d 820, 172 P.2d 353; and Morgan v. Southern Pacific Co., 95 Cal. 501, 508, 30 P. 601. It is also argued that there is sufficient evidence to support the verdict; that the sound discretion of the jury in fixing the amount of damages which were approved by the trial court should not be disturbed on appeal unless the award is so disproportionate to any limit of compensation as to indicate that it was the result of passion, prejudice or corruption on the part of the triers of fact, citing Drotleff, v. Renshaw, 34 Cal.2d 176, 179, 208 P.2d 969, and cases assembled in 10 NACCA Law Journal, pp. 264–280; and 11 NACCA Law Journal pp. 227–248.

Medical testimony of defendants indicates that there is no present appearance of the stump of the leg that would prevent the use of an artificial limb, and as to the left leg, there is an excellent weld, solid union of the fragments, and the alignment is very satisfactory from a functional standpoint; that ultimately the use of a brace will not be necessary; that although there is a partial stiffness of the left knee there is sufficient range so the plaintiff could use the artificial limb and could walk without crutches and would not need a practical nurse to attend him in the future; that phantom pains may last indefinitely but they may become less troublesome.

It does appear that in March, 1952, plaintiff's physician did report that ‘The patient is now able to walk with his crutches and in the brace. The pelvic portion of the brace has been removed. The patient is ready for a prosthesis for the right leg. However, it might be worthwhile to be sure just where the patient will permanently reside because he will need a great deal of care and adjustment of the prosthesis'.

It is defendant's contention that there are no cases of amputated limbs where so excessive a verdict has been upheld; that there are no decisions justifying so tremendous a verdict, even in the sum of $117,400.20, the amount to which the trial court reduced the judgment after the first trial; that the verdict is on its face excessive; and it appears to have been influenced by passion and prejudice, citing such cases as Schraeder v. Robinson, 78 Cal.App.2d 328, 339, 177 P.2d 788; Day v. General Petroleum Corporation, 32 Cal.App.2d 220, 239, 89 P.2d 718; Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 509, 55 P.2d 870; and a Missouri case, Jones v. Pennsylvania Railroad Co., 353 Mo. 163, 182 S.W.2d 157, decided July 3, 1944. In the latter case the first trial resulted in a verdict of $175,000 for plaintiff and the trial court found the verdict was grossly excessive and granted a new trial. The second trial resulted in a verdict of $203,167, and a new trial was again granted on the ground that it was grossly excessive. The plaintiff there was a brakeman 18 years of age and earned $250 per month. The train wheels passed over the brakeman's right leg and amputated it at the lower end of the upper third of the femur. His right thumb was entirely severed and both hip joints were dislocated. There was a comminuted fracture about the neck and head of the right femur and the socket into which the head of the femur would rest was partially absorbed and destroyed. There were multiple fractures about the upper end of the left femur, the socket for the joint was partially destroyed, and the injuries indicated were greater than those of the plaintiff in the instant case. On appeal the court sustained the finding of the trial court that the award was excessive.

In White v. Davis, 103 Cal.App. 531, 284 P. 1086, $30,000 was awarded for the loss of a leg. The court stated, 103 Cal.App. at page 551, 284 P. at page 1095, that the size of the verdict ‘is large enough to emphasize the fact that the errors herein mentioned were prejudicial to the defendant.’

In Huggans v. Southern Pacific Co., 92 Cal.App.2d 599, 207 P.2d 864, a 12-year-old boy, with 54 years life expectancy, was awarded $91,000 for the loss of his left leg below the knee and a major portion of his right foot. At the time of trial more than $17,000 special damages were approved.

In McNulty v. Southern Pacific Co., 96 Cal.App.2d 841, 216 P.2d 534, a $100,000 award was allowed. There a 42-year-old assistant cashier of a bank, with a life expectancy of 26 years, and earning $365 per month was injured. One leg was severed three inches above the knee and the other leg 3 inches below it. He was awarded $100,000. In that case a number of decisions in and out of this jurisdiction allowing large verdicts were reviewed, and none of those reviewed were the size of the verdict rendered in the case at bar.

In Pearson v. Hanna, 145 Me. 379, 70 A.2d 247, 16 A.L.R.2d 1, there is an exhaustive survey of personal injury judgments purporting to cover such cases through the period of 1941 to 1950. Cases involving leg injuries and amputations are there discussed. In those cases there is shown no award approaching the size of the one in the instant case.

In Hallinan v. Prindle, 17 Cal.App.2d 656, 672, 62 P.2d 1075, 1082, it is said that ‘the best obtainable criterion of the reasonableness of a verdict is its conformity to the average amount awarded by juries in cases in which injuries of like nature and like extent have been sustained.’ Citing Lockwood v. Twenty-Third Street R. Co., 15 Daly 374, 7 N.Y.S. 663. ‘While it would be a hopeless task to search for cases exactly like the one at bar, some light also may, we think, be thrown on the question by comparing this verdict with others in amount similar or somewhat more or less, and noticing the character and degree of gravity of the injuries and disabilities for which they were awarded.’ See, also, Day v. General Petroleum Corp., 32 Cal.App.2d 220, 239, 89 P.2d 718.

With this rule in mind, an examination of the cases collected in 16 A.L.R.2d 249, shows a $165,000 verdict where both legs were amputated about 4 inches below the buttocks, and considerable other injuries were indicated. Delaney v. New York C. R. Co., D.C.N.Y.1946, 68 F.Supp. 70.

In Avance v. Thompson, 1943, 320 Ill.App. 406, 51 N.E.2d 334, the judgment was reversed on other grounds [387 Ill. 77, 55 N.E.2d 57]. The original verdict of $125,000 was reduced to $100,000 for a 22-year-old brakeman. Both legs were cut off by a train, the right leg 2 inches below the knee, and the left leg 8 inches below the knee. A later operation showed amputation of the right leg 3 inches above the knee.

In Beam v. Baltimore & Ohio R. Co., 1945, 77 Ohio App. 419, 68 N.E.2d 159, a $75,000 judgment was sustained in favor of a railroad brakeman earning $280 per month with 25 years life expectancy. Both legs were cut off below the knees.

In Bartlebaugh v. Pennsylvania R. Co., 1948, 150 Ohio St. 387, 82 N.E.2d 853, a judgment for $225,000 was rendered and remittitur of $75,000 ordered. Plaintiff was a 23-year-old railroad brakeman earning $250 per month. Both legs were amputated above the knees, leaving stumps of 4 and 8 inches respectively.

In St. Louis S. W. R. Co. v. Ferguson, 8 Cir., 1950, 182 F.2d 949, a $150,000 judgment was held not to be excessive. A railroad switchman had his left leg cut off 3 inches below the hip joint. His right arm was amputated, leaving only the thumb and forefinger remaining upon the left hand. The left leg stump was so short it could not satisfactorily be fitted with an artificial limb. Plaintiff would not be able to use crutches because of the condition of his hands. He was a permanent wheel-chair case and would require a constant attendant the rest of his life.

In Southern Pacific Co. v. Guthrie, 9 Cir., 1949, 180 F.2d 295, a $100,000 verdict was held to be too high but not so high as to indicate passion and prejudice removing the case from the discretion of the trial court, which had denied relief from excessiveness. A railroad engineer past 59 years of age, with a maximum loss of earnings of $6,000 per year after taxes deducted, had his right leg run over and amputated between the knee and hip. He was hospitalized 37 days and underwent two operations on the stump. There was a 27-degree contracture of the right thigh, causing the stump to extend at an angle, preventing him from using an artificial limb. He had phantom pains in the cut limb.

In Affolder v. New York, C. & St. Louis R. Co., 1950, 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683, an $80,000 verdict, reduced from $95,000, was sustained. There a railroad employee had one leg lost.

In Kansas City Southern R. Co. v. Taylor, 1945, 209 Ark. 488, 190 S.W.2d 968, a $40,000 judgment was sustained for a 33-year-old railroad fireman with a life expectancy of 38.53 years. He was earning $300 per month. His right leg was crushed and amputated first below and then 6 inches above the knee. He had a 4-inch fracture of the skull, etc., and was totally incapacitated to perform manual labor.

In Jones v. Pennsylvania R. Co., 1944, 353 Mo. 163, 182 S.W.2d 157, $203,167 was held so excessive as to justify the trial court in granting a new trial on the ground of bias and prejudice despite the fact that at a previous trial the verdict was for $175,000. The right leg was amputated at the lower end of the upper third of the femur. The bone of the thigh was grown into and became a part of a scar which was very painful on pressure, with ulcerated lesions over surface, with other injuries.

In Joice v. Missouri—Kansas—Texas R. Co., [1945] 354 Mo. 439, 189 S.W.2d 568, 161 A.L.R. 383, an $80,000 verdict was reduced to $65,000 at the trial, with a further remittitur of $15,000 ordered. Plaintiff was a 47-year-old section foreman with a large family, earning about $2,000 per year. His right leg was amputated, leaving a stump of about 6 1/212 inches. There was some infection in the stump and additional pieces of bone were required to be removed. His ability to use an artificial leg was doubtful. His right arm was broken at the elbow, requiring wiring together, etc.

11 NACCA Law Journal, 229, reports the case of Kieffer v. Blue Seal Chemical Co., 3 Cir., 196 F.2d 614, which was affirmed for $250,000. Plaintiff suffered third-degree facial burns, blindness, and a permanently disfigured face. There was an actual collection of only $133,200 on the judgment.

Counsel for plaintiff concedes that this is the largest judgment obtained in this state for such injuries as here shown, and agrees that there is no reported California case supporting such an award.

Under the rule of comparable verdicts above indicated, it readily appears that the size of the verdict rendered in the instant case compared to verdicts sustained for similar injuries, even considering the claimed decrease in the value of the dollar, is excessive. A full allowance of $410.41 per month for 20 years, totaling $98,498.40, and the claim for the $48,300 for nursing care of plaintiff for 23 years, appears to us to be excessive and unreasonable, when added to the amount allowed for special damages established, and when added to claimed damages which must have been allowed for future pain and suffering.

The question of excessive verdicts is generally left to the trial court in the first instance, and its findings do lend weight to the correctness of the jury's award. However, in this case we have a finding by the judge two tried the case in the first instance, based upon practically the same evidence, that the verdict of $212,589.69 was excessive and so grossly disproportionate to any reasonable limit of compensation warranted by the facts that it shocked the sense of justice and raised a presumption that it was the result of passion and prejudice. Accordingly, he endeavored to reduce the amount of the award to $117,400.20. Our conclusion, when considered in opposition to the conclusion reached by the trial court in the instant trial, therefore, has basic support.

Whether the jurors in the present case knew that a former jury had returned a verdict for $212,589.69, and that the trial court endeavored to reduce it, as shown, is not established by the evidence. However, resentment on the part of the nine jurors in this action to the actions of the trial judge in the first case in attempting to reduce the verdict of the former jury, may be indicated. On the present motion for new trial Oilfields presented an uncontradicted affidavit reciting that during a recess period in said trial and at a time when one of the doctors for plaintiff was testifying, the foreman of the jury talked with plaintiff's doctor all during that recess; that after the trial the foreman was interviewed and told affiant in effect that he and the majority of the jury were of the opinion that plaintiff would not be able to use or walk with a pylon or artificial limb, although this was a matter of speculation since further operations or strengthening of the left limb might permit the use of an artificial limb.

Although the argument of counsel to the jury was not included in the reporter's transcript, it is indicated, as a part of the memorandum submitted to the trial court on the hearing of the motion for a new trial, that the arguments of the attorneys for plaintiff were prejudicial because, by means of innuendo, they suggested: (1) That Oilfields ‘owned and operated equipment worth $1,700.000.’ (2) ‘That the only way to stop automobile accidents was to make it so expensive that people cannot afford to do it’; that ‘in this regard Mr. Palmquist, (one of the attorneys for plaintiff) stated: ‘I think that the day when it becomes so expensive to hurt someone or to kill somebody that they cannot afford to do it, it will stop’.' (3) ‘That the only way to stop Oilfields * * * from having accidents was to teach them a lesson by forcing them into bankruptcy. That Mr. Palmquist intimated no harm would be done, as J. C. Penney has been forced to go through bankruptcy on three different occasions, but that J. C. Penney was still in business.’ (4) ‘The suggestion of insurance by innuendo and by stating to the jury that Mr. Harry Phoenix and Mr. Percy Phoenix had insured their own lives for half a million dollars.’

In view of the refusal to give the proffered instruction, the giving of the erroneous instructions indicated, and the conclusion that the verdict is excessive and appears to have been influenced by passion and prejudice, we conclude that the judgment should be reversed and a new trial ordered.

Judgment reversed.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.

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