PARNELL v. CONTINENTAL CASUALTY COMPANY

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

Janis Kay PARNELL, Plaintiff, Appellant and Respondent, v. CONTINENTAL CASUALTY COMPANY, et al., Defendant, Appellant and Respondent.

AO14137.

Decided: August 25, 1983

Robert D. Barbagelata, Charles G. Renati, San Francisco, for plaintiff, appellant and respondent. Rodney L. Eshelman, Richard B. McDonough, Bertrand LeBlanc, Carroll, Burdick & McDonough, San Francisco, for defendant, appellant and respondent.

Plaintiff Janis Kay Parnell commenced an action against defendant Continental Casualty Company (hereafter sometimes defendant), and its claimed agent or employee, for compensatory and punitive damages arising out of the death of her husband, Charles Parnell, and a purportedly valid accident insurance policy written upon his life.   Three causes of action were stated;  the first was for breach of the insurance contract, the second for violation of the insurance contract's covenant of good faith and fair dealing, and the third for defendant's extreme and outrageous conduct.

The trial was before a jury which returned verdicts awarding plaintiff “none ” compensatory damages, and $900,000 of punitive damages against defendant Continental Casualty Company.   Following the verdicts, defendant's motion for a new trial on all issues was granted, and its alternative motion for judgment notwithstanding the verdict was denied.   Plaintiff has appealed from the order granting a new trial, and defendant has appealed from the order denying judgment notwithstanding the verdict.

We have considered the record and the briefs and arguments of the respective parties.   For reasons we now state, we conclude that both the order granting a new trial and the order denying judgment notwithstanding the verdict must be affirmed.

We are furnished little aid by the parties in our inquiry into the relevant facts of the case.   Each of them has selected favorable parts of the record and portrays them as the “facts” of the appeal.   Neither has respected the substantial evidence rule which is binding upon them, and upon this court.

As will soon hereafter be pointed out in greater detail, an order granting a new trial will be sustained on appeal despite a jury's verdict, if the trial court's reasons therefor, are supported by substantial evidence and by the law.   And, an order denying a motion for judgment notwithstanding the verdict must be sustained if the jury's verdict is supported by substantial evidence.

 The existence of substantial evidence will be determined as follows.   When a trial court's, or a trial jury's, finding of fact is attacked on the ground that there is no evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trier of fact.   It is of no consequence that the trier of fact, believing other evidence or drawing other inferences, might have come to a contrary conclusion.  (Grainger v. Antoyan (1957) 48 Cal.2d 805, 807, 313 P.2d 848;  and see People v. Johnson (1980) 26 Cal.3d 557, 576–577, 162 Cal.Rptr. 431, 606 P.2d 738.)

Plaintiff's Appeal from the Order Granting a New Trial

True to the substantial evidence rule we state the trial's evidence as it reasonably tends to support the superior court's order granting the motion for a new trial.   It was mainly uncontroverted.

Plaintiff was formerly Janis Kay Sell.   She worked as a bookkeeper and real estate agent;  her total assets approximated $1,000 and her monthly earnings averaged around $450.   At age 35, she met Charles Parnell, aged 69, and married him at Reno, Nevada, December 16, 1975.   His income was around $400 to $500 a month.   Prior to the marriage she had made inquiries of insurance companies about accident insurance on Parnell's life.   She inquired “what they had in the policy, how much it would cover, and what the premiums were.”

On the day after the marriage plaintiff alone negotiated a bank loan on which the monthly payments thereafter were “seventy-some dollars,” which payments she made.   She continued her accident insurance inquiries, and about a week later made written applications to five insurance companies, including defendant Continental Casualty Company, for such insurance totaling $300,000 on Parnell's life.   The policies were written and delivered to her;  they were effective for six months, and their aggregate premiums were about $600.   Plaintiff herself had filled out the applications, naming herself the beneficiary.   The applications and policies had come to her mailing address.   Parnell had another such address;  he had gone “down and got a post office box in Loomis so he would have a place for his checks to come.”

Plaintiff had herself signed Parnell's name to the applications;  in doing so she had endeavored to simulate his signature, she “just thought that was the way to do it.”   She paid all of the premiums herself, from her own funds in one or more of the five personal checking accounts she maintained.   And on one or more of the premium payments, she “went in to make a deposit to cover the amount of the check.”

During Parnell's previous marriage of 41 years he had never purchased, or shown any interest in, either life or accident insurance.

(The above-related circumstances of the several policies' issuance were admitted by plaintiff on the witness stand.   And but for her testimony, there was no evidence that Parnell had any knowledge of the policies' existence.)

Less than three months after the policies' issuance, plaintiff and Parnell were driving, one midnight, in a pickup truck on Highway 299, alongside and high above the Trinity River.   Parnell was driving and she was the passenger.   Somehow the vehicle left the road, and fell 28 1/212 feet down a cliff before striking anything.   It then catapulted, end over end, several hundred feet before coming to rest.

Soon after, a passing motorist observed plaintiff at the roadside waving her hands, and “screaming that her husband was over the bluff.”   Before long other motorists and highway patrol officers gathered.   An officer suggested that plaintiff needed first aid;  she declined, saying, “I'm fine.”   To the officer, “she appeared to be calm,” she had no apparent head injuries, and the only injuries he saw “were scrape marks but they weren't deep enough to draw blood.”

There were no skidmarks where the pickup truck had left the road.

In the darkness the badly wrecked vehicle was found and examined by sheriff's officers.   Parnell's dead and broken body had gone through the vehicle's windshield, and “was about forty feet downhill towards the river.”   He “had wrapped around his body the rubber grommet from the windshield of the pickup.”   The officers tried, but were unable to open the vehicle's doors;  they were too firmly closed.

The pickup truck had about it, the strong odor of leaking gasoline.   Its “gas cap” was missing and a later investigation disclosed that it had somehow been separated from the vehicle before it had gone over the cliff;  it was found on the highway or its shoulder.

In lowering themselves over the cliff to the vehicle, and in returning to the highway, the sheriff's officers were obliged to use ropes and climbing equipment.   One of them, when asked whether “a 36-year-old lady with no climbing gear at all under the weather conditions that you found that night when you arrived there [could] have ascended from let's take two hundred feet down the cliff up to the roadway?”—replied, “No, Sir, she could not.”

Expert witnesses testified that in the moment between the time plaintiff was “startled” by the vehicle going over the highway's shoulder, and it commenced bouncing and rolling down the cliff, she could not have opened its passenger door and removed herself from the vehicle.

Plaintiff soon thereafter made claim for the $300,000 coverage of the several accident insurance policies.   Suspicious, defendant Continental Casualty Company chose to investigate.   The investigation eventually led to presentation of the matter to the Trinity County Grand Jury by the county's district attorney.   The grand jury, finding probable cause to believe that plaintiff had murdered Parnell, indicted her for that crime.   Thereafter the superior court, adversely to her motions, also found such probable cause, and she was tried for that offense.

A jury, unconvinced beyond a reasonable doubt of her guilt, acquitted her of the murder charge.   The acquittal was soon followed by the instant lawsuit.

At the trial of the instant civil action a substantial controversy appeared as to some of the evidence.

The cause and time of Parnell's death was in dispute.   Although as claimed by plaintiff and inferred from other of the trial's evidence, his death appeared to have been caused by accident, other evidence indicated that he was dead before the pickup truck went over the cliff.   Yet other of the trial's evidence, perhaps the preponderance, indicated that the death was caused by massive brain injuries.   The brain injuries could, medical witnesses said, have been inflicted by some heavy external blows, or by some natural inward cause;  it might have been either.   But, in either event, the medical consensus appeared to be that “he was dead or dying when it went over.”

Other evidence, contrary to reasonable inferences drawn from the accident's happening, indicated that the pickup truck was traveling very slowly when it dropped over the cliff, perhaps 10 or 15 miles per hour or less, not more.   At a higher speed the plainly visible tire tread marks on the highway's shoulder would have been obliterated, expert witnesses testified.

Plaintiff's explanation of the incident was that she was dozing in the passenger seat with her eyes closed.   She felt a sliding sensation, was “startled,” reached for the door handle, must have somehow exited from the vehicle, and then with great difficulty, climbing up the cliff, reached the highway and sought help.

As noted, the jury, asked if the plaintiff had suffered any “compensatory ” damages and if so, the amount, had in writing inserted the word “none.”   They then, however, found that she had suffered “punitive” damages of $900,000.   We consider those discordant verdicts.

Were it to be assumed that the several accidental death insurance policies were applied for by Parnell and were therefore valid, and that his death was accidental, plaintiff beyond any doubt had suffered substantial compensatory damages.   Indeed, the trial court had several times reiterated to the jury that if they found the insurance policies valid, they must return a verdict for compensatory damages.   Moreover much, if not the greater part, of the trial appears to have been given over to the issue of such compensatory damages.

And the jury had been instructed that in order to award compensatory damages other than the policy amount, such damages must have proximately resulted from defendant's wrongful acts.

The only discernible, and reasonable, interpretation of the jury's compensatory damage verdict is that the insurance contracts were invalid, and that plaintiff had otherwise suffered no damages as a proximate result of any wrongful act of defendant.

But the trial court, feeling itself obliged to do so by Probate Code section 258,* had instructed the jury:  “That plaintiff Janis K. Parnell did not unlawfully and intentionally cause the death of Charles O. Parnell;  two, that plaintiff Janis K. Parnell did not intentionally cause the death of Charles O. Parnell;  three, that plaintiff Janis K. Parnell did not procure the death of her husband;  and four, that plaintiff Janis K. Parnell was not guilty of the crime for which she was prosecuted.   As a result, the foregoing facts are established and therefore you are hereby instructed that for all purposes in the consideration by you of all the issues in the case you are to accept these, you are to accept these facts as true.”

And, although the trial court had earlier told the jury that in their discretion they might return a punitive damage award, referring to a blank space on the form of punitive damage verdict handed them, it stated repeatedly, “You put in the amount of dollars.”

One reasonable interpretation of the verdicts' discordancy is that because of the earlier “not guilty verdict” and the court's instruction, the jury erroneously believed themselves required to put in an “amount of dollars” on the punitive damage verdict form.

In its order granting a new trial the superior court stated, among other things, that:  “After weighing all of the evidence, the court is convinced from the record, including reasonable inferences therefrom, that the jury clearly should have reached a different verdict.   The court's reasons for this determination appear hereafter.”

Among such reasons was the court's conclusion:  “That the damages of $900,000 punitive damages against the defendant are excessive.  [Emphasis added.]  ․ By any test an award of punitive damages of $900,000 [under the facts and circumstances of the case] is an extremely large punitive verdict.”   And further:  “The law of California is clear that an award of punitive damages must bear a reasonable relationship to actual damages.   Here, the jury awarded ‘none’ actual or compensatory damages, and the large punitive damage award of $900,000, by any test, bears no reasonable relationship to the ‘none’ compensatory.”

(We observe no contention that the above, and other, reasons given by the trial court were other than a proper compliance with the command of Code of Civil Procedure section 657, and Mercer v. Perez (1968) 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315, passim.)

 It is a long settled rule that punitive damages must bear a reasonable relation to any actual damages proximately caused by the claimed tortfeasor.   (See Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 922, 114 Cal.Rptr. 622, 523 P.2d 662;  Rosener v. Sears, Roebuck & Co. (1980) 110 Cal.App.3d 740, 752, 168 Cal.Rptr. 237;  Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 263, 73 Cal.Rptr. 127;  Plotnik v. Rosenberg (1921) 55 Cal.App. 408, 410, 203 P. 438;  4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 868, p. 3156.)   The disparity here is manifest.

 It remains to be seen whether the above-noted reasons of the superior court were supported by substantial evidence, and otherwise by the law.

Patently there was substantial evidence (see Grainger v. Antoyan, supra, 48 Cal.2d 805, 807, 313 P.2d 848), that Parnell himself had not applied for the accident insurance policies which were therefore invalid, and that his death was not accidental.   The trial court's reasons were therefore supported by substantial evidence.

We accordingly look to the applicable law by which we are to be guided.

Plaintiff argues that “the court erred in weighing the evidence,” and that “since there was [substantial] evidence to sustain the verdict, the order for a new trial was improperly granted.”   And purporting to quote from Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65, 118 Cal.Rptr. 184, 529 P.2d 608, 65 A.L.R.3d 878, she says:  “Punitive damage awards can be reversed as excessive only when the entire record viewed most favorably to the judgment indicates the award was rendered as the result of passion and prejudice.”   We do not find that quotation in Bertero.   Instead, that authority tells us that “ ‘ “where the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice, the duty is then imposed upon the reviewing court to act.” ’ ”  (13 Cal.3d at p. 64, 118 Cal.Rptr. 184, 529 P.2d 608.)  (Here, as noted, the trial court found the punitive damage recovery to be “so grossly disproportionate” as to warrant the granting of a new trial.)

Plaintiff not only misquotes Bertero, but she grossly misconstrues the law.   And she misapprehends the disparate functions of trial and appellate courts on appeals such as hers.

Reviewing courts will not set aside the trial court's order granting a new trial if there was substantial evidence to support the jury's verdict.

Instead:  “In cases tried by jury, ․ it is said that a party has in fact two hearings, one before the jury, and the other before the court as a ‘thirteenth juror.’   The judge presented with a motion for new trial on this ground may review conflicting evidence, weigh its sufficiency, consider credibility of witnesses, reject any testimony believed false and draw any reasonable inferences from the evidence․  ‘The parties are entitled to the judgment of the jury in rendering a verdict, in the first instance;  but ․ are equally entitled to the independent judgment of the judge as to whether such verdict is supported by the evidence.’ ”  (5 Witkin, Cal. Procedure (2d ed. 1971) Attack on Judgment in Trial Court, § 35, p. 3611.)

The state's high court has written a wealth of authority on the subject.

“Such a motion is addressed to the judge's sound discretion;  he is vested with the authority, for example, to disbelieve the witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact;  on appeal, all presumptions are in favor of the order as against the verdict, and the reviewing court will not disturb the ruling unless a manifest and unmistakable abuse of discretion is made to appear.”  (Mercer v. Perez, supra, 68 Cal.2d 104, 112, 65 Cal.Rptr. 315, 436 P.2d 315.)

“The trial court is in a far better position than an appellate court to determine whether a damage award was influenced by ‘passion or prejudice.’ ․  In reviewing that issue, moreover, the trial court is vested with the power, denied to us, to weigh the evidence and resolve issues of credibility․  When defendants first challenge the damage award on appeal, without a motion for a new trial, they unnecessarily burden the appellate courts with issues which can and should be resolved at the trial level.”  (Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d 908, 919, 114 Cal.Rptr. 622, 523 P.2d 662.)

“The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.   This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter.   So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside.”  (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387, 93 Cal.Rptr. 769, 482 P.2d 681.)

“ ‘Whatever may be the rule which should govern the trial judge, it is certain that when his action in granting a new trial on the ground of excessive damages, or requiring a reduction of the amount as the condition of denying one, comes to be reviewed on appeal, his order will not be reversed unless it plainly appears that he abused his discretion;  and the cases teach that when there is a material conflict of evidence regarding the extent of damage the imputation of such abuse is repelled, the same as if the ground of the order were insufficiency of the evidence to justify the verdict.’ ․  The reason for this is that the trial court, in ruling on the motion, sits not in an appellate capacity but as an independent trier of fact.”  (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 932–933, 148 Cal.Rptr. 389, 582 P.2d 980.)

“An abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached under the theory expressed in the order for a new trial.”  (Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706, 711, 106 Cal.Rptr. 28, 505 P.2d 220.)

“ ‘[I]t is well settled that the granting of a motion for a new trial rests so completely within the discretion of the trial judge that an appellate court will not interfere with his action unless a manifest and unmistakable abuse of discretion clearly appears․'  It is this discretion which we uphold here․  As we have previously indicated, weighing the credibility of conflicting declarations on a motion for new trial is uniquely within the province of the trial court.”  (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 109, 95 Cal.Rptr. 516, 485 P.2d 1132.)

And:  “Although the trial court may weigh the evidence and grant a new trial or order a remittitur if it finds the jury's award to be against the weight of the evidence, we are not so empowered.”  (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 419, 185 Cal.Rptr. 654, 650 P.2d 1171.)

Moreover, “it is the province of the jury and the trial court on the motion for a new trial to say whether [our emphasis] punitive damages should be awarded” at all.  (Zhadan v. Downtown Los Angeles Motor Distributors, Inc. (1979) 100 Cal.App.3d 821, 835, 161 Cal.Rptr. 225.)

Manifestly, its reasons being legally supported, the trial court properly exercised its independent judgment as a trier of fact, or “thirteenth juror,” in concluding (1) that the award of punitive damages was excessive and (2) that the award bore no reasonable relationship to the actual damages found to have been suffered as a proximate result of tortious conduct of defendant.

 An issue which we do not here have to meet, but which will probably again arise at the new trial is whether Probate Code section 258 (see footnote, p. 279, ante ) is applicable to insurance policy proceeds.   Wilson v. Wilson (1978) 78 Cal.App.3d 226, 232–235, 144 Cal.Rptr. 180 (hrg. den.) holds that it is.   For the reasons there stated, we agree.

The conclusions we have reached render moot other of the parties' contentions on plaintiff's appeal;  the circumstances giving rise to them will probably not recur at the next trial.   We therefore do not resolve them.

From our consideration of all of the foregoing no error or abuse of discretion is seen in the superior court's order granting a new trial.

Defendant's Appeal from the Order Denying Judgment Notwithstanding the Verdict

 As has earlier been pointed out, an order denying judgment notwithstanding the verdict must be affirmed if, unlike an order granting a new trial, there was substantial evidence (see Grainger v. Antoyan, supra, 48 Cal.2d 805, 807, 313 P.2d 848) supportive of the jury's verdict.

The rule was well stated in Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159, 41 Cal.Rptr. 577, 397 P.2d 161, as follows:  “The rules applicable to judgments notwithstanding the verdict for defendant are well settled․  Such a motion may be granted, properly, only when, disregarding the conflicting evidence, and indulging in every legitimate inference in favor of the plaintiff, the result is a determination that there is no evidence of substantial nature to support the verdict.   The trial court, on such motion, is not permitted to weigh the evidence, and on an appeal from the judgment entered on the granting of such a motion, the appellate court must read the record in the light most advantageous to the plaintiff, resolve all conflicts in his favor, and give him the benefit of all reasonable inferences in support of the judgment.”

Disregarding all contrary evidence, and accepting, arguendo, all evidence and reasonable inferences supportive of plaintiff's case as true, we are unable to find a lack of substantial evidence to uphold the jury's verdict.   And since that verdict has now been set aside we need not, and do not, respond to defendant's argument “that it was legally improper and may not stand.”

The order denying defendant's motion for judgment notwithstanding the verdict must therefore be affirmed.

The orders granting a new trial and denying judgment notwithstanding the verdict are, and each is, affirmed.

Although I concur in the judgment and agree with the substance of the majority opinion, I do not agree that the disparity between the punitive damages awarded and the actual damages suffered by plaintiff is manifest.

Certainly, the $900,000 awarded as punitive damages is disparate to the “none” actual damages shown on the jury's verdict;  however, I do not consider the difference so excessive when compared to the evidence of actual damages suffered by plaintiff, even though they did not find their way into the verdict form.   Were it not for the granting of a new trial, an exposition detailing the evidence of such damages would be appropriate;  but inasmuch as the order granting the new trial must be affirmed, the disparity issue itself is moot.   Although that issue may not recur following the new trial, I feel compelled to register my comments, since I depart from the implication in the majority opinion (p. 11) that the claimed disparity renders the punitive damage award invalid.

Suffice it to say that there was substantial evidence demonstrating that plaintiff suffered the following damages:  Earnings loss of $100,000;  legal defense costs in the criminal proceeding of $100,000;  future psychotherapy of $35,000;  bail bond premium of $10,000;  attorney's fees of $72,000;  incarceration pending trial lasting two months;  and extensive emotional problems created by the incarceration and the pending murder charge.   Awards of punitive damages have been upheld notwithstanding the failure of the jury to specifically grant compensatory damages.  “Respondent must, therefore, be held to have established her right to compensatory damages, and the fact that the jury, inadvertently or by some mischance, assessed the entire damages as exemplary, instead of segregating them, constitutes an error of form rather than of substance.”  (Clark v. McClurg (1935) 215 Cal. 279, 284, 9 P.2d 505.)   I assume that the jury, in awarding exemplary damages, found a tortious act committed by defendant, and, if that is so, and they followed the trial court's instruction to award exemplary damages if they found actual damages suffered by plaintiff, they must have believed the evidence as to such damages.  (See Brewer v. Second Baptist Church (1950) 32 Cal.2d 791, 801–802, 197 P.2d 713;  and Topanga Corp. v. Gentile (1967) 249 Cal.App.2d 681, 691, 58 Cal.Rptr. 713.)

Were it not for the order granting new trial, I would not find a manifest disparity between the compensatory and punitive damages.   However, I completely agree with Justice Elkington that this court may not second-guess the trial judge by setting aside his order granting a new trial unless a “manifest and unmistakable abuse of discretion is made to appear.”  (Mercer v. Perez (1968) 68 Cal.2d 104, 112, 65 Cal.Rptr. 315, 436 P.2d 315.)   After reviewing the trial court's order granting the motion for new trial, I cannot find such a manifest and unmistakable abuse of discretion and I therefore concur that the order granting a new trial should be affirmed.

While I concur in the majority's affirmation of the order denying defendant's motion for judgment notwithstanding the verdict, for the reasons stated below I respectfully but emphatically dissent from its affirmation of the order granting defendant's motion for a new trial.

Upon review of the record before us I differ with my colleagues in three fundamental respects:  (1) their interpretation of the jury's verdict and their characterization of it as “discordant”;  (2) their view of the proper scope of the trial court's review of the evidence on a motion for a new trial made on grounds that the verdict is “contrary to law”;  and (3) their view of the scope of appellate review of an order granting a new trial on grounds that the verdict is contrary to law.

As noted in Justice Elkington's opinion, the jury, in rendering a general verdict for the plaintiff, inserted the word “none” in the space provided for compensatory damages;  however, it then affirmatively found that the plaintiff was entitled to punitive damages in the amount of $900,000.   While conceding that, if the policies of insurance were valid, and plaintiff's decedent's death accidental, then plaintiff “beyond any doubt had suffered substantial compensatory damages,” Justice Elkington finds that the only reasonable interpretation of the jury's compensatory damage verdict is that the policies were invalid and that plaintiff had suffered no damages as a proximate result of any wrongful act of defendant.   As to the inclusion of the punitive damage award, he suggests it might have been due to the jury's erroneously interpreting the punitive damage instruction to mean that such a finding was required rather than discretionary.

With this reasoning I must respectfully disagree.   I can conceive of another—to my mind altogether more plausible-explanation for the jury's apparently inconsistent verdict regarding compensatory and punitive damages:  The jury did correctly understand the punitive damage instruction, the jury did find compensatory damages, the jury found the total (compensatory and punitive combined) damages to be $900,000;  and the facial discrepancy of the verdict is due to inadvertance, clerical error, or the jury's belief that, under the general verdict form given them, the compensatory damages would be subsumed in the finding of a total lump sum.1

In this regard, the trial court, and one of my colleagues, have failed to make the recognized distinction between a finding of damages, fully supported by substantial evidence, and the jury's mere failure to assign a specific dollar amount to such finding.

One decision of our high court seems precisely in point.

In Clark v. McClurg (1932) 215 Cal. 279, 9 P.2d 505, it was laid down as the rule that, if a tortious act and proximately caused damages are shown, there need be no express finding by the jury of either the existence or the monetary extent of compensatory damages to support an award of punitive damages.   Where plaintiff had established defamation per se, and the jury assessed “damages in the sum of ․ ($ ․) Dollars as actual damages and the sum of Five Thousand ($5,000.00) Dollars as punitive damages, making a total of Five Thousand ($5,000.00) Dollars, ․” (id., at p. 281, 9 P.2d 505), our high court opined that:  “Respondent must ․ be held to have established her right to compensatory damages, and the fact that the jury, inadvertently or by some mischance, assessed the entire damages as exemplary, instead of segregating them, constitutes an error of form rather than of substance.”   (Id., at p. 284, 9 P.2d 505;  see also Contento v. Mitchell (1972) 28 Cal.App.3d 356, 359, 104 Cal.Rptr. 591.)   Here, similarly, plaintiff by inescapable inference established her right to compensatory damages.

And while both Clark and Contento were cases in which actual damages were presumed as a matter of law, the same principles have been given a more general application.

In James v. Public Finance Corp. (1975) 47 Cal.App.3d 995, 121 Cal.Rptr. 670, this court was presented with an action for alleged wrongful garnishments against plaintiff's wages in which the jury returned a verdict in plaintiff's favor assessing general damages of $0 and punitive damages of $1,750.   The tortious act—use of a false affidavit to garnish appellant's wages—was admitted.  (Id., at p. 999, 121 Cal.Rptr. 670.)   After reviewing pertinent case law, Justice Lazarus of this court explained (Molinari, P.J. and Elkington, J. concurring):  “ ‘Where, as here, actual damages appear from the evidence, an award of punitive or exemplary damages will stand, though the verdict of the jury shows no finding of actual damages.  [Citations.]’ ”  (Id., at p. 1005, 121 Cal.Rptr. 670.)   The court noted that defendant's tortious acts resulted in at least nominal damages, including loss of wages and some degree of emotional distress, and concluded:  “The verdict in this case should therefore be liberally construed as a general verdict covering all of appellant's damages, both actual and punitive, and should not be negated because of a technical defect in form.”  (Id., at p. 1006, 121 Cal.Rptr. 670;  see also Topanga Corp. v. Gentile (1967) 249 Cal.App.2d 681, 691, 58 Cal.Rptr. 713.)

Thus, a jury verdict which fails to expressly provide for recovery of compensatory damages does not foreclose a punitive damages award if the evidence establishes an actionable wrong committed by the defendant and resulting damages incurred by plaintiff.  (See Cobian v. Ordonez (1980) 103 Cal.App.3d Supp. 22, 29, 163 Cal.Rptr. 126;  Werschkull v. United California Bank (1978) 85 Cal.App.3d 981, 1003–1004, 149 Cal.Rptr. 829;  Weiss v. Blumencranc (1976) 61 Cal.App.3d 536, 543–544, 131 Cal.Rptr. 298;  Esparza v. Specht (1976) 55 Cal.App.3d 1, 9, 127 Cal.Rptr. 493;  James v. Public Finance Corp., supra, 47 Cal.App.3d 995, 1004–1006, 121 Cal.Rptr. 670;  Horn v. Guaranty Chevrolet Motors (1969) 270 Cal.App.2d 477, 482–483, 75 Cal.Rptr. 871.)   It is only where a verdict which awards no actual damages is based upon lack of evidence of either an underlying tortious act or proximately caused harm, that punitive damages are precluded.  (O'Neil v. Spillane (1975) 45 Cal.App.3d 147, 161, 119 Cal.Rptr. 245;  Kluge v. O'Gara (1964) 227 Cal.App.2d 207, 210, 38 Cal.Rptr. 607;  Haydel v. Morton (1935) 8 Cal.App.2d 730, 736, 48 P.2d 709.)

Here, I repeat, the jury specifically found against Continental as to both liability and damages.   Moreover, the general verdict returned here implies a finding in favor of the prevailing party on every fact essential to support such verdict, which, in the absence of a request for special verdicts (Code Civ.Proc., §§ 624, 625) or clarification, we are bound to presume is supported by the evidence.  (Cobian v. Ordonez, supra, 103 Cal.App.3d Supp. 22, 29, 163 Cal.Rptr. 126;  Codekas v. Dyna-Lift Co. (1975) 48 Cal.App.3d 20, 24, 121 Cal.Rptr. 121.)   Given what I perceive to be ample evidence of tortious conduct 2 and resulting harm to appellant, the specific finding against Continental, and the instruction advising the jury to award punitive damages only if actual harm was established, I conclude that the jury verdict of “none” compensatory damages was defective in form only, and was thus improperly vacated by the trial court.  (Cobian, supra;  James v. Public Finance Corp., supra, 47 Cal.App.2d 995, 1006, 121 Cal.Rptr. 670.)

If the foregoing is indeed the correct interpretation of the jury's verdict, then one of the grounds for defendant's new trial motion may be quickly eliminated.   While the jury did not return a specific amount of compensatory damages, the outline of such an award is clearly traceable in the evidence alluded to in the concurring opinion of Justice Breiner, which—given causation—shows uncontradicted compensatory damages which could not reasonably have been less than $250–300,000—leaving as the punitive damages portion of the award a maximum of $600,000.   If the former two figures were to be used in calculating the ratio between actual and punitive damages—rather than the $0–900,000 figures used in the lead opinion—certainly the amount of punitive damages could not be characterized as excessive.

Even under this interpretation of the verdict, however, we are still confronted with defendant's other ground for requesting a new trial, i.e., that the jury's verdict was contrary to law.   Again I disagree with my respected colleagues.

I think it should be emphasized in the present discussion that the grounds for defendant's new trial motion and the basis upon which the trial court granted it are identical:  i.e., that the verdict was contrary to law, rather than that the evidence was insufficient.   The distinction is crucial, because the two grounds are objections of an entirely different order, stated in the disjunctive, and are distinct causes for granting a new trial.  (Annin v. Belridge Oil etc. Union (1953) 119 Cal.App.2d Supp. 900, 260 P.2d 295;  Renfer v. Skaggs (1950) 96 Cal.App.2d 380, 215 P.2d 487.)

And while it might be said where insufficiency of the evidence is advanced as the basis for a new trial that the trial court sits as a “thirteenth juror,” such is not the case where the motion is made on grounds the verdict is contrary to law.   As expressed in a leading case, “ ‘ “[T]he words ‘against the law’ do not import a situation in which the court weighs conflicting evidence and merely finds a balance against the judgment.” ' ”  (McCown v. Spencer (1970) 8 Cal.App.3d 216, 229, 87 Cal.Rptr. 213;  Bray v. Rosen (1959) 167 Cal.App.2d 680, 683, 335 P.2d 137;  S.F. Bay Area Rapid Transit Dist. v. McKeegan (1968) 265 Cal.App.2d 263, 71 Cal.Rptr. 204.)   In fact, “the granting of a new trial on the ground that [the verdict] was ‘against the law’ is authorized only where there is no substantial evidence to sustain the verdict.”  (Id., at p. 273, 71 Cal.Rptr. 204, emphasis added);  “since there was substantial evidence to support the judgment, the granting of a new trial on ground that it was ‘against law’ was not authorized.”   (Thompson v. Guyer-Hays (1962) 207 Cal.App.2d 366, 375, 24 Cal.Rptr. 461.)

With this standard in mind I am at a loss to understand the trial court's inability to find substantial evidence supportive of the jury's verdict.   The record resonates with such evidence.   For example, it seems to me unarguable that, since Continental initiated and partially financed the investigation and prosecution of plaintiff, there was surely, as the trial court put it, “a great deal of evidence regarding the damages plaintiff suffered on the basis of the three causes of action.”   Particularly is this so when one considers that, as established by summary adjudication, the jury, the trial court and this tribunal were and are bound, as a matter of law, to the conclusion for purposes of this action that plaintiff did not cause or procure the death of her husband.  (Probate Code, § 258.)

Given this conclusive presumption, it would be difficult to quarrel with Justice Breiner's observation that, “Suffice it to say ․ there was substantial evidence ․ that plaintiff suffered the following damages:  Earnings loss of $100,000;  [criminal] legal defense costs ․ of $100,000;  future psychotherapy of $35,000;  bail bond premium of $10,000;  attorneys' fees of $72,000;  incarceration pending trial lasting two months;  and extensive emotional problems created by the incarceration and the pending murder charge.”

I should add in this connection that my view of the evidence differs widely from that implicit in the factual summary contained in the lead opinion.

Particularly in view of the binding presumption of plaintiff's innocence, I find it impossible to denigrate the seriousness of plaintiff's injuries.   A false and presumably groundless charge of murdering one's own spouse, based upon evidence which—whether or not it produced an indictment—strikes me as sheer conjecture and surmise, is reasonably calculated to wreck not only one's physical and emotional health, but one's reputation, peace of mind and family relationships as well.

If Mrs. Parnell were innocent of causing her husband's death—as I repeat we are bound to believe—a hideous injustice has been done to her.   We now compound that injustice.

Without rehearsing other evidentiary points as to which I think the plaintiff convincingly proved Continental's outrageous conduct,3 suffice it to say that, with the exception of a rather feeble challenge to the psychiatric damages claimed by plaintiff, nowhere in the record do I find a plausible challenge to the overwhelming evidence supporting her claimed damages.

Of such evidence we may say, as Mercutio did of his wounds, that while “․ not so deep as a well, nor so wide as a church door, ․ ‘Tis enough ‘twill serve, ․’ ”

For these reasons I believe that the trial court erred in the granting of the motion for a new trial on the basis that the verdict was “contrary to law.”   I turn to the last of my three points of departure from the majority opinion.

The majority opinion cites numerous authorities 4 to the effect that the trial court's order granting a new trial on grounds that the verdict was contrary to law cannot be set aside absent an abuse of discretion.   I disagree.

First, I believe that the lead opinion fails to make the necessary distinction, already alluded to above, between the ground that the verdict is contrary to law and other statutory grounds for granting a new trial.   The cited authorities are rendered inapposite;  thus, language quoted from Witkin appears under a chapter heading entitled “Insufficient Evidence (b) [§ 35] Power and Duty to Weigh Evidence”;  also, the motion for and order granting new trial in Mercer v. Perez, supra, 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315, were based upon insufficiency of the evidence;  in Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d 908, 114 Cal.Rptr. 622, 523 P.2d 662, no motion for a new trial was made;  in Jiminez v. Sears Roebuck & Co., supra, 4 Cal.3d 379, 93 Cal.Rptr. 769, 482 P.2d 681, the grounds for a new trial were not stated, the Supreme Court assumed them to be a claim that improper jury instructions were given;  in Neal v. Farmers Ins. Exchange, supra, 21 Cal.3d 910, 148 Cal.Rptr. 389, 582 P.2d 980, the grounds were excessive damages;  in Jones v. Citrus Motors Ontario, Inc., supra, 8 Cal.3d 706, 106 Cal.Rptr. 28, 505 P.2d 220, the ground was insufficiency of the evidence, and the language quoted in the lead opinion was adopted from Mercer v. Perez (an insufficiency of evidence case);  in Weathers v. Kaiser Foundation Hospitals, supra, 5 Cal.3d 98, 95 Cal.Rptr. 516, 485 P.2d 1132, the grounds were jury irregularity and misconduct, while the source of the language quoted in the lead opinion is Mazzotta v. Los Angeles Ry. Corp. (1944) 25 Cal.2d 165, 153 P.2d 338, in which the grounds were errors of law (as opposed to contrary to law ), insufficiency of evidence, and erroneous instructions;  and, finally, the grounds in Hasson v. Ford Motor Co., supra, 32 Cal.3d 388, 185 Cal.Rptr. 654, 650 P.2d 1171, were juror misconduct.

These cases, therefore, are not authorities standing for the proposition that an “abuse of discretion” is required before we may hold invalid an order for a new trial granted on grounds that the verdict is contrary to law.   In the absence of such authority, it is my opinion that where the trial court makes a determination that the verdict is contrary to law, an appellate court may, as a matter of law, conclude that such a determination is erroneous without the need to invoke an abuse of discretion.

In any case, however, even if, arguendo, an abuse of discretion is required, I am of the opinion that such an order in this case could properly be classified as an abuse of discretion.

I would reverse the trial court and reinstate the jury's verdict.   And, in any case, finding no basis whatever for reversing the jury verdict as to liability, I think this court gravely errs in remanding for a new trial on all issues.

FOOTNOTES

FOOTNOTE.   Probate Code section 258, as here relevant, provides:“No person who has unlawfully and intentionally caused the death of a decedent, ․ shall be entitled to succeed to any portion of the estate or to take under any will of the decedent;  but the portion thereof to which he would otherwise be entitled to succeed goes to the other persons entitled thereto under the provisions of this chapter or under the will of the decedent.   A conviction or acquittal on a charge of murder or voluntary manslaughter shall be a conclusive determination of the unlawfulness or lawfulness of a causing of death, for the purposes of this section.”  (Emphasis added.)

1.   The latter hypothesis seems to me almost certainly the case here.

2.   Continental suggests that appellant's signature on the application for insurance instead of Parnell's renders the insurance contract invalid and defeats appellant's tort action.   This argument ignores appellant's testimony that she signed the application at her husband's direction, and the jury's finding against Continental on the tort claims, presumably based upon that testimony.The majority opinion, adopting the factual version of the case urged by the defendant—in my view contrary to established principles of appellate review—suffers from the same defect.

3.   As the evidence shows, Trinity County thought so little of the case against Mrs. Parnell that it would or could not investigate it:  hence Mr. McCormack's bizarre role as a full-time adjunct investigator for the county, representing its citizens but paid by a private company pursuing its own narrow financial interests.

4.   5 Witkin, California Procedure (2d ed. 1971) page 3611;  Mercer v. Perez (1968) 68 Cal.2d 104, 112, 65 Cal.Rptr. 315, 436 P.2d 315;  Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 922, 114 Cal.Rptr. 622, 523 P.2d 662;  Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 93 Cal.Rptr. 769, 482 P.2d 681;  Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 932–933, 148 Cal.Rptr. 389, 582 P.2d 980;  Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706, 711, 106 Cal.Rptr. 28, 505 P.2d 220;  Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 109, 95 Cal.Rptr. 516, 485 P.2d 1132;  and Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 419, 185 Cal.Rptr. 654, 650 P.2d 1171.

ELKINGTON, Acting Presiding Justice.

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