WALLING v. KIMBALL (1940)

This is an action for damages sustained by the plaintiffs in a collision which occurred on November 24, 1935, between an automobile in which they were riding and a Cadillac car owned by the defendants Kimball and driven by the defendant Hastings. David K. Kimball is the sole owner of Kimball Motor Car Company and under that name operates an automobile business in Huntington Park. The plaintiff Jones D. Walling prayed for judgment for medical and hospital expenses, incurred for himself in the sum of $500.52; for damages to his automobile in the sum of $600.20; for medical and hospital expenses incurred in connection with his wife's injuries in the sum of $3,260.55; and for general damages in the sum of $10,000. The plaintiff Grace Walling prayed for judgment in the sum of $50,000.

On a first trial of the action the jury disagreed. On the second trial the jury returned verdicts in favor of Jones D. Walling for $5,000 as against all defendants, and in favor of Grace Walling for $20,000 as against defendant Hastings, and for $5,000 as against David K. Kimball and Kimball Motor Car Company. Judgments were entered accordingly and David K. Kimball and Kimball Motor Car Company have appealed.

Hastings was represented at both trials by his own counsel, a Mr. Bradley, although this counsel was paid by the appellants. While he was on the witness stand during the first trial Hastings promised to cooperate with his own counsel and also promised the court he would leave hotel rooms which were paid for and also occupied by an investigator for the respondents. During his cross-examination by the appellants an adjournment was taken, the court ordering him to appear on the next court day. During the adjournment Hastings disappeared and has not been seen since.

From the evidence it appears that Hastings went to work for the appellants on November 18, 1935, his principal duties being to wash cars, do janitor work and run errands. Since his duties required him to open the place in the morning, he was given a key to the garage. On Saturday, November 23, 1935, he was told to take a Dodge car and go to Long Beach on a specific errand. He had not returned when the garage was closed at 9 o'clock that night. He did return about 11 o'clock that night when no one was at the garage, and, leaving the Dodge, he took the Cadillac and started for Bakersfield to see his sister. The accident happened before he arrived there. The next morning the Cadillac was missed and the matter was reported to the police. That afternoon the appellants received a wire from Hastings advising them of the wreck. It was conceded by respondents that Hastings was not acting within the scope of his employment at the time of the accident, and liability is sought to be imposed upon the appellants under subdivisions (a) and (b) of section 402 of the Vehicle Code, St.1935, p. 153.

The evidence relied upon as showing that Hastings had permission to drive the Cadillac car consists of a portion of the deposition of Hastings, taken by the respondents under section 2055 of the Code of Civil Procedure, and the testimony of Jones D. Walling and his investigator to the effect that some months after the accident. Hastings told them that he had had such permission. With reference to this matter Hastings' testimony was that he had worked for the appellants for seven or eight months before the accident happened; that during that time he had used appellants' cars for his personal purposes some forty or forty-five times; that David K. Kimball and his brother had told him about a week after he went to work there, to take a car whenever he needed it; and that the day he went to work there the brother told him he could take a car whenever he wanted it for his own personal use.

This evidence was contradicted by the testimony for the appellants, and by a part of the testimony of Hastings himself. It conclusively appears that the business operated by the appellants was not opened until September 10, 1935, a little more than two months before the accident; that Hastings did not go to work for them until November 18, 1935; that he worked for and was paid by a firm in Long Beach up to November 15, 1935; and that he later paid the appellant for the damage to the Cadillac. There was testimony on behalf of the appellants that no general permission to take cars was given, and that Hastings had been allowed to use a car for his own use only once, which was on November 16, 1935, when he was allowed to take a car to go to Long Beach to get some of his belongings before going to work for them. When his deposition was taken Hastings was shown a statement which he had signed on November 26, 1935, two days after the accident. In this he said: “I had no permission to use the Cadillac and no one at the Kimball Motor Company knew I had the Cadillac until I reported the accident Sunday afternoon,” and also: “I was acquainted previously with Mr. Vaus, and I presumed that I could use a car without asking for permission.” In his deposition Hastings testified that these statements were true.

The appellants' first contention is that, in view of the unsatisfactory nature of this evidence as to permission, certain statements made by the respondents' counsel during the reading of Hastings' deposition constituted prejudicial misconduct which prevented them from having a fair trial. In the incident thus referred to, after he had finished reading the direct examination of Hastings, counsel for the respondents objected to the reading of his cross-examination on the ground “that Mr. Dana in this case as a matter of fact is the representative of Mr. Hastings, and that he is attempting to indulge in this cross-examination to confuse the issues, and that he and Mr. Bradley are representing these parties jointly, and that Mr. Dana, * employed Mr. Bradley in this case, and that due to that relationship they are certainly not entitled to put Mr. Hastings on the ‘pan’ and have their cake and eat it.” When this objection was overruled, counsel said: “I will later then have to call both Mr. Bradley and Mr. Dana to the stand and find out the true facts of this matter.” Counsel for the appellants assigned these remarks as misconduct and asked the court to strike them from the record, which was not done. In connection with a motion for a mistrial, which was denied, counsel for respondents withdrew the charges thus made, but this was not communicated to the jury. Three days later, in its general instructions, the court told the jury not to consider as evidence any statement made by counsel.

The appellants contend that the statements so made injected a false quantity into the case; that in effect they accused the attorney for the appellants of conniving with the attorney for Hastings for the purpose of misleading the jury; and that, coming as they did, during the most important part of the evidence relating to whether or not Hastings had permission to use the automobile in question, they constituted misconduct which was sufficiently prejudicial to justify a reversal under the rules laid down in Merralls v. Southern Pacific Co. 182 Cal. 19, 186 P. 778; Keena v. United Railroads, 197 Cal. 148, 239 P. 1061; Gackstetter v. Market Street R. Co., 130 Cal.App. 316, 20 P.2d 93; Gee v. Fong Poy, 88 Cal.App. 627, 264 P. 564.

The question as to whether Hastings had been given permission to drive the Cadillac was the most important issue in the trial of this case. There is no evidence that Hastings had or ever claimed to have had specific permission. At all times he said that no one was there when he took the car. The entire case, with respect to permission, rests upon his claim that he had been given permission to take a car at any time. While he said he had been given such general permission, he also stated that he had had “no permission to use the Cadillac” and that he “presumed” he could use a car, and there is no evidence of his personal use of a car during the six days he worked for the appellants. Moreover, Jones D. Walling testified that when he and his investigator asked Hastings whether or not he had had permission to use the car, Hastings “stated that he didn't have particular permission to use that car, but he had been given permission that same afternoon to use a Dodge car, and the only reason he wasn't using the Dodge car on this trip was because there was no one there to ask at the time”.

In view of Hastings' claim that he had been given permission to take a car any time he desired, his statement that “there was no one there to ask at the time” is most significant. His claim of general permission should also be considered with his further statements in connection therewith, that he had worked for the appellants for seven or eight months during which time he had used their cars on forty or forty-five occasions. These statements were obviously untrue, and clearly impossible. It should also be remembered that on the first trial, when he was about to be cross-examined on the unusual and conflicting statements made by him, Hastings disappeared.

While the matter of his credibility was for the jury, and a part of his statements would support a finding that his use of this car was with the permission of the appellants, any such evidence was “manifestly very weak and unsatisfactory”. It was under such circumstances, and at the very moment when the cross-examination of Hastings was about to be read to the jury, that the statements here complained of were injected into the case by counsel for respondents. Not only were these statements unjustified and improper, but coming at the time they did, just as the falseness of a large part of Hastings' testimony was being brought out, the charge that the appellants were acting in collusion with Hastings, with the claim that for this reason they were not entitled to attack Hastings' very questionable testimony, may well have had a very considerable, if not a controlling, effect upon the jury in weighing appellants' evidence on the question as to whether permission to drive the car had been granted.

Under a somewhat similar situation, with the exception that the misconduct was there oftener repeated, the court in Keena v. United Railroads [197 Cal. 148, 239 P. 1064], supra, said: “The evidence bearing upon the question of the legal responsibility of the defendant for the death of the infant son of the plaintiff was manifestly very weak and unsatisfactory. The verdict of the jury might well have been in favor of the defendant. Nevertheless, in itself and in the absence of prejudicial error ‘the record reveals evidence sufficiently substantial to support the verdict.’ What the verdict would have been without the suggestions of counsel for plaintiff is, of course, impossible of infallible ascertainment, but in view of the fact that the decision by the jury, resting, as it did, primarily upon indifferent evidence, may have been and in all probability was largely influenced and possibly absolutely controlled by the innuendoes speaking to the wrongdoing of the defendant in concealing facts which should have been placed by it within the knowledge of the jury, it is clearly unfair and unjust to the defendant that it be mulcted in damages where the misconduct by counsel for the plaintiff was presumably so large a factor in the verdict.”

Whether or not the misconduct here in question was, in itself, sufficiently prejudicial to justify a reversal, it constitutes an additional reason, along with the unsatisfactory nature of the evidence, why, if a retrial of the action is to be ordered, it should be upon all issues.

The appellants further contend that the court erroneously instructed the jury that damages in excess of $5,000 could be imposed on the appellants, as arising from the injuries to one person.

The court read to the jury subdivisions (a) and (b) of section 402 of the Vehicle Code. Subdivision (b) limits the liability of the owner in such a case as this to $5,000 “for the death of or injury to one person in any one accident”, and subject to this limit, to $10,000 “with respect to the death of or injury to more than one person in any one accident”. The court then instructed the jurors that they must respect these limits, as against these appellants, even though they should award a greater sum as against Hastings. This was followed by eight instructions of a general nature after which the court, at the request of respondents, gave a long instruction, taking up three pages in the reporter's transcript, most of which relates to the elements of general damage which might be considered in connection with each of the respondents. The last paragraph of this instruction reads as follows: “It has been stipulated that plaintiff, Jones D. Walling, incurred as special damages, for hospital, medical, X-rays and incidental expense for treatment of his own injuries, to-wit, the sum of $500.52, and expense of treatment of the injuries of his wife, Grace Walling, to-wit, the sum of $3,260.55, and as damage to his Chevrolet automobile, to-wit, the sum of $600.20, and that said items of expense were reasonable. If you find the plaintiff, Jones D. Walling, is entitled to recover you may assess said items as his special damage.”

While the appellants denied liability therefor, it was stipulated that Jones D. Walling had expended $3,260.55 for medical treatment, hospitalization and other care required by his wife as a result of her injuries in the accident in question. While that amount was paid by the husband, it arose out of the injuries to the wife. While the jury was told in the earlier instructions to which we have referred, that the liability of such an owner was limited to $5,000 on account of an injury to one person in an accident, the last-mentioned instruction told the jury that it could allow for certain elements of general damage, as to each respondent, and further, that if it found in favor of Jones D. Walling it could allow certain items, including the amount he had expended for the treatment and care of his wife, as his special damage. The effect of all these instructions is that the jury could consider this $3,260.55 as a part of the husband's damage, provided the entire amount awarded to him should not exceed $5,000. The inevitable result was to permit the jury, as against the appellants, to award the wife $5,000 on account of the injuries sustained by her in this accident, and also to award to the husband the further sum of $3,260.55 for damage which also resulted from the same injuries.

If the damage caused by the injuries to the wife in this case exceeded $5,000, the respondents should not be allowed, in face of the plain provision of the statute, to collect that amount through a judgment in favor of the wife and then collect a further sum of $3,260.55, for the injuries, merely because the husband happened also to have a cause of action arising from the same accident. Bradford v. Brock, 140 Cal.App. 47, 34 P.2d 1048. If this action had been by the husband and wife to recover solely for the injuries suffered by the wife in this accident, it would clearly appear that the instructions given permitted a recovery as against the appellants of an amount not permitted by the statutes. The result here is the same, and the error in thus instructing the jury is just as apparent. The jury should have been plainly told that if it allowed the wife the full amount of $5,000 it could make no further allowance to the husband for damages resulting from the injuries received by the wife.

While the pertinent part of subdivision (b) of section 402 of the Vehicle Code has not been considered, in respect to the situation here in question, in any case in this state to which our attention has been called, the language used is clear and seems to compel the interpretation we have placed upon it. In Ravenswood Hospital v. Maryland Cas. Co., 1917, 280 Ill. 103, 117 N.E. 485, 487, the court had under consideration an insurance policy containing language quite similar to that used in our statute, to-wit: “The company's liability for such damages on account of injuries to or the death of one person is limited to $5,000, and, subject to the same limits for each person, the company's total liability for such damages on account of injuries to or the death of any number of persons is limited to $10,000.”

In commenting upon this provision the court said: “This language is too plain and clear to leave any doubt as to its meaning. It specifically limits appellant's liability to $5,000 for injury or death to one person, irrespective of the number of persons who may make claim to damages on account of the injury to such person. In this case but one person was injured—Mrs. Appel—and under the conditions of the policy the appellant's liability was limited to $5,000 on account of such injury.”

In Chattanooga Dayton Bus Line et al. v. Burney, 1929, 160 Tenn. 294, 23 S.W.2d 669, 672, in speaking of a similar situation, the court said: “The limitation of liability to a fixed amount ‘for one injury’ in an insurance contract of this kind imposes the limitation upon all claims for damage, by whomsoever made, arising out of personal injuries to a single person.”

The reasoning and holdings in those cases is applicable here. An owner's imputed liability in such a case as this cannot be increased beyond the statutory limit of $5,000, with respect to the injury to one person in one accident, by increasing the number of claimants even though one be the husband of the injured party who has furnished the care made necessary by such injury.

The respondents contend that this error in the instructions was not prejudicial. It is argued that the portion of the instruction complained of was proper as to the defendant Hastings; that the evidence of other damage would sustain a verdict of $5,000 in favor of the husband, if the $3,260.55 be eliminated; and that it must be assumed that the jury did not disregard the court's instruction that the liability of the appellants was limited to $5,000. If this be assumed, it should also be assumed that the jury did not disregard the other instruction, to assess the $3,260.55 as a part of his damages in the event of a verdict in the husband's favor. If we assume that neither part of the instructions was disregarded, the result is that the $5,000 allowed the husband was within the limit of appellants' liability, and that it included the $3,260.55 which the court also told the jury it might allow the husband. That this is what occurred is strongly indicated by the fact that the jury's verdict as against Hastings was for the same amount, $5,000, although the jury had been repeatedly told that a larger verdict might be returned as against that defendant. If we assume that the jury followed these instructions it follows that it found that $5,000 covered all of the damage suffered by Jones D. Walling, including the amount he expended in the care of his wife. Under any other assumption we are left entirely to speculation as to what the jury intended.

The instructions were confusing, at best. That the jury was confused appears from the fact that it returned into court and the foreman asked the court whether the amount that Mr. Walling “had to pay the doctor bills, so forth” was “assessable in addition to the $5,000.00”. The court replied in the negative. The court had told the jury this amount was assessable in favor of the husband, who had paid it. The foreman's inquiry seems to have related to the contemplated verdict in favor of Mr. Walling. Neither then nor when the original instruction concerning that item was given, did the court advise the jury that such an item could be allowed the husband only in the event it, taken with the amount allowed the wife, did not exceed $5,000, as against these appellants. The inquiry thus made by the jury shows it had in mind this item which the court had specifically told it to allow the husband, and indicates that this amount was considered and included in the amount finally awarded the husband. Clearly the jury wanted to follow the court's instruction and allow the husband for those expenses. If they had not found that $5,000 covered all of the husband's damage, including the item of his expenditures for his wife, they would have followed the court's other instructions and have added the latter amount to the husband's verdict against Hastings.

Under these circumstances it can neither be held that the error and confusion in the instructions were not prejudicial, nor that a miscarriage of justice has not occurred. Apparently, the jury has awarded more than $5,000 on account of the wife's injury. While the verdict in favor of the respondent wife is not directly affected by the instruction complained of, that part of the judgment is directly affected by the misconduct in question and by the unsatisfactory nature of the evidence relating to permissive use. The appellants were entitled to a fair trial upon all issues, and under correct and complete instructions. The matters in issue were not segregated at the trial, and the familiar rule permitting, upon a reversal, the ordering of a retrial on a part of the issues only, when the interests of justice will be thereby served, should not be here applied. Any retrial should be upon all issues and as to both respondents.

The judgments are reversed and the action is remanded for a new trial.

BARNARD, Presiding Judge.

I concur: MARKS, J.