LEA v. SHANK (1970)

(Modification of opinion on denial of petition for rehearing.)

The decision filed herein on March 25, 1970 is modified in the following respects:

The final line, ‘The judgment is reversed’ is stricken and the following language is substituted therefor:

Since no error has been found in the determination of the issue of damages, we may properly consider whether a reversal for a trial only as to the issues bearing upon liability is proper.

The general principal is thus stated in Brewer v. Second Baptist Church, 32 Cal.2d 791, 801, 197 P.2d 713, 720:

‘The appellate courts have power to order a retrial on a limited issue, if that issue can be separately tried without such confusion or uncertainty as would amount to a denial of a fair trial. (citations) Whether it can or not depends upon the circumstances of each case.’

We are of opinion a retrial on the question of liability only woulc not be proper in a case where a general verdict for damages covered all issues including those bearing on liability.

Such was not the case here. The issue of damages was tried alone. Separate trials of the issues of liability and damage are permitted. (Code Civ.Proc. s 598.) It is easy to conceive of a situation where issues have been separately tried under said section, and the verdict as to liability was the result of reversible error while the verdict fixing damages was free of error. In such a case it would be unreasonable to have a retrial of both issues, even though in ordinary circumstances trial of the issue of liability properly precedes the trial of the issue of damages.

The proceedings in the court below were not had under Code of Civil Procedure, section 598, but the failure to have the issue of liability tried produced the same result as a verdict of liability erroneously arrived at in a bifurcated trial.

The possibility that the verdict on damages may have been the result of compromising the issue of liability does not exist. Shank and McAtee do not have a right to a retrial of all issues solely in the hope that should a verdict for damages again be awarded against them it might represent such a compromise.

There is appellate precedent for the retrial of a single issue unestablished in the original trial while allowing the amount of damages originally awarded to stand. (Gilmore v. Caswell, 65 Cal.App. 299, 306, 224 P. 249; see also Lobree v. L. E. White Lumber Co., 53 Cal.App. 85, 93, 199 P. 821.)

The judgment is reversed with directions to the trial court to try any and all issues necessary to determine the question of liability of Shank and McAtee; and if such trial determines either or both to be liable then to enter judgment in favor of Lea against the defendant or defendants found liable in the sum of $10,000, to bear interest from the date of said entry; otherwise, to enter judgment in favor of the defendant or defendants found not liable.