ORTZMAN v. VAN DER WAAL (1953)

In voting for a denial of the petition for hearing in this case I wish to point out that the opinion of the District Court of Appeal is in accord with the views expressed in my dissenting opinions in Leipert v. Honold, 39 Cal.2d 462, 247 P.2d 324 and Toshio Hamasaki v. Flotho, 39 Cal.2d 602, 248 P.2d 910, but is directly contrary to the opinions of the majority of the Supreme Court in said cases. In the case at bar the District Court of Appeal states [249 P.2d 849]: “Moreover the trial judge who had the opportunity of seeing and hearing the witnesses, in denying appellant's motion for a new trial, thereby expressed his approval of this implied finding, [on appellant's injuries] and hence this court is powerless to disturb the same.” In the Leipert and Hamasaki cases, supra, the Supreme Court held that in a personal injury case where the award of damages to the plaintiff was less than the special damages proven and there was a conflict in the evidence on liability, it was an abusive discretion to grant a new trial on the issue of damages only because such a verdict must be considered a compromise verdict on the issue of liability.

In my dissents in those cases I endeavored to point out, as the appellate court did in the case at bar, that the question of whether or not the verdict was a result of a compromise or because it disbelieved the evidence as to liability or damages or was a result of prejudice against the plaintiff or some other cause was for the trial judge to determine and that his decision on these matters could not be reversed by an appellate court in the absence of a showing of a gross, manifest and unmistakable abuse of discretion.

In my dissent in the Leipert case, supra, I stated 39 Cal.2d at pages 473 and 474, 247 P.2d at pages 331: “For example, a man with an earning capacity of $300 per month, and a life expectancy of 20 years, who loses a leg in an automobile accident and is thereby incapacitated from pursuing his occupation, is awarded $10,000 by a jury. At the present value of money this would appear to be inadequate. But, would the majority of this court so hold if a trial judge denied a motion for a new trial made by plaintiff on the ground that the award was inadequate? It certainly would not. But, if the trial court would grant such a motion on the issue of damages only, the majority would obviously reverse if there was a conflict in the evidence on the issue of liability. In other words, the majority would hold the award inadequate as a matter of law in the latter instance, but not so if the motion for a new trial were denied or granted on all issues. The foregoing results are inescapable under the specious reasoning in the majority opinions in these three cases. The only thing that is made clear by these decisions is that the majority does not approve of a trial court granting a motion for a new trial on the issue of damages only in a case where the damages awarded are inadequate and there is a conflict in the evidence on the issue of liability. In such a case, the majority says, there must be a new trial of all the issues or none at all.

“Of course, if a new trial were granted on the issue of damages only in a case where the trial court was of the opinion that the damages awarded were excessive, the majority would not disturb such an order. They would not do so for the reason that they would fear that proof of the facts establishing liability might result in a larger award of damages to the detriment of the defendant. Fuentes v. Tucker, 31 Cal.2d 1, 187 P.2d 752.” (Emphasis added.)

The holding of the majority in denying appellant's petition for a hearing in the case at bar today demonstrates the unimpeachable truth of the above-quoted statement.

It seems to me that if, as the majority held in the Leipert and Hamasaki cases, supra, that a trial court was guilty of an abuse of discretion in granting a motion for a new trial on the issue of damages only in a case where there is a conflict in the evidence on liability and the award of damages is less than the amount of special damages proven, the rule should be the same where the trial judge denies a motion for a new trial in such a case. It cannot be denied that the verdict in the instant case was a result of compromise. Plaintiff was either entitled to more than $62.85 or no sum whatever for her personal injuries. Under the holding of the majority of the Supreme Court in the Leipert and Hamasaki cases, supra, this compromise must have been the result of doubtful liability and therefore it was an abuse of discretion for the trial court to do anything other than grant a motion for a new trial on all issues. If the trial court had granted plaintiff's motion for a new trial on the issue of damages only, this Court would obviously have reversed such order and directed a new trial on all issues as it did in Toshio Hamasaki v. Flotho, supra. If the position of the majority is sound, why should the rule be different where the trial court denies a motion for a new trial in a case such as this where the verdict is obviously the result of a compromise?

CARTER, Justice.