Dorsey v. Barba ( 1952 )

GIBSON, C. J.

This action was brought to recover damages for personal injuries sustained by plaintiffs Dorsey and Anderson in an automobile accident. They sought recovery against Vincent Barba as operator, and Catherine Barba as registered owner, of the car which collided with the one in which they were riding. The jury returned verdicts against Vincent but in favor of Catherine, and judgment was entered accordingly. Thereafter, pursuant to a conditional order made on plaintiffs’ motion for a new trial, the court, with Vincent’s consent, modified the judgment against him by increasing the amount of damages awarded. Plaintiffs, who did not consent to the increase, have appealed from the modified judgment against Vincent and from the judgment in favor of Catherine.

Liability op Catherine

The automobile, which was purchased with community funds, was registered in Catherine’s name alone, and she testified that Vincent “had it put in my name so that I would feel that half of it belonged to me and the other half belonged to him.” Defendants separated, and a property settlement agreement was entered into by which Catherine transferred “all of her right, title, and interest” in the car to Vincent. The agreement was approved by an interlocutory decree of divorce signed about three months prior to the accident. Before the separation Vincent drove the ear to and from work and used it whenever he desired, and it was in his possession when the agreement was made. The car was never driven by Catherine, and she testified that she allowed Vincent to keep it after the separation, that she "presumed he was using it, ’ ’ and that she did not ask him to return it or tell him he could not drive it. Catherine did not endorse the ownership certificate until some months after the accident, and she did not give the Department of Motor Vehicles any notice of the intended transfer as provided by statute. (See Veh. Code, §§ 176, 177, 178, 186.)

Section 402 of the Vehicle Code, as amended in 1943, imputes to the owner of an automobile liability for the negligence of a person operating the vehicle with the owner’s express or implied permission. In the absence of compliance with Vehicle Code, sections 178 and 186, a purported transfer of an automobile is ineffective to relieve an owner of the liability imposed under section 402. (See Weinberg v. Whitebone, 87 Cal.App.2d 319 [196 P.2d 963]; Stewart v. Norsigian, 64 Cal.App.2d 540 [149 P.2d 46, 150 P.2d 554]; Leplat v. Raley Wiles Auto Sales, 62 Cal.App.2d 628 [145 P.2d 350] ; Bunch v. Kin, 2 Cal.App.2d 81 [37 P.2d 744]; see, also, Votaw v. Farmers A. Inter-Ins. Exch., 15 Cal.2d 24 [97 P.2d 958, 126 A.L.R. 538].) Catherine does not dispute this rule but contends that it is inapplicable to her because she had only a community interest in the car and never was an owner within the meaning of that section. She relies on section 66 of the Vehicle Code, which defines an owner as "a person having all the incidents of ownership,” and argues that since the exclusive management and control of community personal property is given to the husband by section 172 of the Civil Code, she did not have all of the rights of an owner in the car.

It is clear, however, that a person may be liable as an owner under section 402 even though he does not have "all the incidents of ownership.” That section provides that every owner of a motor vehicle is' liable for imputed negligence except conditional vendors, their assignees, and chattel mortgageés, when those persons are out of possession. The express mention of these exceptions indicates that the framers of section 402 did not intend to incorporate the definition of owner found in section 66. If the intent had been to limit liability to those having "all the incidents of ownership,” it would not have been necessary to expressly exempt conditional vendors and chattel mortgagees, who, of course, do not possess all the rights of ownership. Catherine, as sole registered owner of the automobile, obviously is included in the term ‘ ‘ every owner, ’ ’ and since she is not within the exceptions she can avoid liability only by showing she did not actually consent or had no power to consent to Vincent’s use of the car.

There can be no question that at the time of the accident Vincent was driving the car with Catherine’s permission, but she contends that any consent she may have given was ineffective because she lacked power to give her husband permission to use the car since he had the right of management and control under section 172 of the Civil Code. In support of her position Catherine relies upon Pacific Tel. & Tel. Co. v. Wellman, 98 Cal.App.2d 151 [219 P.2d 506], where the car involved in the accident was registered in the names of both Mr. and Mrs. Wellman. The court held that the car must be presumed to be community property and that for the purposes of section 402 the negligence of Mr. Wellman in operating the car could not be imputed to his wife because she lacked power to consent to his use of it. (Cf. Cox v. Kaufman, 77 Cal.App.2d 449 [175 P.2d 260], where the husband was the sole registered owner.) There is also language in Wilcox v. Berry, 32 Cal.2d 189, 191-192 [195 P.2d 414], and Caccamo v. Swanston, 94 Cal.App.2d 957, 963, 965 [212 P.2d 246], indicating that when a car is registered in the names of both husband and wife, she may show that she had only a community interest and therefore had no power to give her husband consent to operate the car.

The foregoing cases may be distinguished, however, because none of them involved the situation here present where the car was registered in the wife’s name alone and she in fact consented to her husband’s use and operation of it. Under these circumstances, the wife should not be permitted to claim that she was without power to give such consent. The requirements for registration were enacted in the interests of public welfare, and one of the purposes for the legislation is to afford identification of vehicles and persons responsible in cases of accident and injury. (See Henry v. General Forming, Ltd., 33 Cal.2d 223, 227 [200 P.2d 785].) Where the registration shows the names of both husband and wife, their identity is disclosed as contemplated by the statute, and, if an accident occurs while the husband is driving, there may be some justification for permitting the wife to explain and amplify the record by showing the true status of her ownership. On the other hand, where, as here, the registration is in the wife’s name alone with her knowledge, and she in fact gives her husband implied or express permission to use the ear, the statutory purpose would be defeated if she were permitted to contradict the record by showing that, instead of being the sole owner, she had merely a community property interest and no power to give permission.¹

It appears from the foregoing that the record establishes as a matter of law that Catherine was liable, to the extent provided by section 402, for any injuries to plaintiffs resulting from negligent operation of the car by Vincent. Since the jury determined that plaintiffs’ injuries were the proximate result of Vincent’s negligence, it could not properly have found for Catherine, and the judgment in her favor must therefore be reversed.

Propriety op Order Increasing Awards

The verdicts against Vincent apparently made no allowance for damages for pain and disfigurement suffered by plaintiffs since the amounts awarded were insufficient to cover medical expenses and loss of earnings. Plaintiffs’ motion for new trial was denied on condition that Vincent consent to a modification of the judgment increasing each award in an amount fixed by the court. The figures arrived at exceeded the special damages proved and apparently included some compensation for pain and disfigurement. Vincent agreed to the increases, but plaintiffs’ assent was not required or given. The primary question concerns the propriety of the court’s action in assessing damages without plaintiffs’ consent.

Plaintiffs contend that the amounts fixed by the court are inadequate and that, since the damages are contested and uncertain, the act of the court in increasing the jury’s award without their consent constitutes a denial of their right to a jury trial in violation of article I, section 7, of the California Constitution which provides that the “right of trial by jury shall be secured to all, and remain inviolate. ’ ’ This section guarantees the right of jury trial as it existed at common law when the Constitution was adopted in 1849. (People v. Kelly, 203 Cal. 128, 133 [263 P. 226]; People v. Martin, 188 Cal. 281, 285-286 [205 P. 121, 21 A.L.R. 1399]; Southern Pac. Land Co. v. Dickerson, 188 Cal. 113, 117-118 [204 P. 576] ; Cline v. Superior Court, 184 Cal. 331, 339 [193 P. 929]; Martin v. Superior Court, 176 Cal. 289, 292-294 [168 P. 135, L.R.A. 1918B 313]; see Estate of Bainbridge, 169 Cal. 166, 167 [146 P. 427] ; Ingraham v. Weidler, 139 Cal. 588, 589-590 [73 P. 415].) At that time, apparently, there was no recognized common law practice allowing the court to increase a jury’s award in a case involving unliquidated damages. (See Dimick v. Schiedt, 293 U.S. 474, 476-482 [55 S.Ct. 296, 297-299, 79 L.Ed. 603, 95 A.L.R. 1150]; Mayne’s Treatise on Damages [2d ed., 1856] pp. 303-305, [9th ed. 1919] pp. 571, 580; Sedgwick, Treatise on Damages [1847] pp. 19, 21, footnote p. 582, cf. [4th ed. 1868] pp. 710-717.)

The constitutional guarantee does not require adherence to the letter of common law practice, and new procedures better suited to the efficient administration of justice may be substituted if there is no impairment of the substantial features of a jury trial. (People v. Hickman, 204 Cal. 470, 476 [268 P. 909, 270 P. 1117].) An essential element of such a trial, however, is that issues of fact shall be decided by a jury, and the assessment of damages is ordinarily a question of fact. The jury as a fact-finding body occupies so firm and important a place in our system of jurisprudence that any interference with its function in this respect must be examined with the utmost care.

There is a conflict of authority as to the extent of a court’s power to increase the amount of an inadequate award over plaintiffs ’ objection. Some jurisdictions do not permit the exercise of such a power. (Lemon v. Campbell, 136 Pa. Super. 370 [7 A.2d 643], citing Bradwell v. Pittsburgh & W. E. P. R. Co. 139 Pa. 404 [20 A. 1046] ; see Watt v. Watt, L. R. [1905], A.C. 115, 119-121.) Some allow it where damages are liquidated or can be ascertained by a fixed standard. (Rudnick v. Jacobs, 9 W.W.Harr. (Del.) 169 [197 A. 381, 383, 384, discussing Massachusetts and Michigan decisions; Kraas v. American Bakeries Co., 231 Ala. 278 [164 So. 565, 570].) Other jurisdictions apparently allow the court to assess increased damages as a condition to denying a new trial without regard to whether damages are liquidated or unliquidated. (See Markota v. East Ohio Gas Co., 154 Ohio 546 [97 N.E. 2d 13, 18-19].)² The Wisconsin rule permits a court to increase an award over plaintiffs’ objection if defendant consents to pay the largest amount which a jury could assess under the proof. (See Campbell v. Sutliff, 193 Wis. 370 [214 N.W. 374, 53 A.L.R. 771].)

The leading authority on the subject is Dimick v. Schiedt, 293 U.S. 474 [55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150] which held that a federal court could not increase a jury’s award without the consent of both parties. The decision points out that the practice was not recognized generally at common law, and that an attempt by the court to fix damages over plaintiff’s objection constitutes a violation of the Seventh Amendment to the United States Constitution which provides that “the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.’’ State courts, of course, are not bound by the Seventh Amendment (Pearson v. Yewdall, 95 U.S. 294, 296 [24 L.Ed. 436] ; Walker v. Sauvinet, 92 U.S. 90, 92 [23 L.Ed. 678], and it is true that there is some difference in language between that amendment and the parallel provision of the California Constitution.³ The reasoning of the Dimick case, however, is applicable here since both the state and federal Constitutions adopted the existing rules of common law with regard to trial by jury, and the variation in language does not warrant a different interpretation of the state Constitution.

It is generally recognized that a court may not increase an inadequate award in a case involving contested and unliquidated damages without the defendant’s consent. (See note 53 A.L.R. 783; 95 A.L.R. 1165; cf. discussion of the Wisconsin practice in Campbell v. Sutliff, 193 Wis. 370 [214 N.W. 374, 53 A.L.R. 771].) It would seem to follow, logically, that the plaintiff’s consent is also necessary. The assessment of damages by a court where they are speculative and uncertain constitutes more than a technical invasion of the plaintiff’s right to a jury determination of the issue. Despite the fact that he has apparently benefited by the increase, the plaintiff has actually been injured if, under the evidence, he could have obtained a still larger award from a second jury. In the present case, for example, the evidence would sustain recovery for pain and disfigurement well in excess of the amounts assessed by the court.

In support of the practice of denying a new trial over the plaintiffs’ objection on condition that defendant consent to pay an increased amount, it has been said that the constitutional guarantee is satisfied when the plaintiff has had one jury trial and that the court’s exercise of its power to grant or deny new trials will not be disturbed in the absence of an abuse of discretion. (See dissenting opinion Dimick v. Schiedt, 293 U.S. at 492-498, 55 S.Ct. at 303-305.) However, it is not the mere form of a jury trial to which one is entitled under the Constitution, but the fundamental right to have a jury determination of a question of fact. It is, of course, clear that there has been no denial of such right if a verdict is set aside and motion for new trial granted. (Estate of Bainbridge, 169 Cal. 166 [146 P. 427] ; Ingraham v. Weidler, 139 Cal. 588 [73 P. 415].) But it does not follow that, in lieu of_ordering a new trial, the court may itself assess damages on conflicting fir uncertain evidence and paodify the judgment with the assent of oniy~bne party. Neither can such procedure be justified as a proper exercise of the court’s authority to prescribe terms in granting or denying motions for new trials. A court may not impose conditions which impair the right of either party to a reassessment of damages by the jury where the first verdict was inadequate, and the defendant’s waiver of his right to jury trial by consenting to modification of the judgment cannot be treated as binding on the plaintiff.

It is true that a court has power to require reduction of a jury’s award over the defendant’s objection as a condition to denying his motion for a new trial in cases where damages are uncertain and speculative. (Draper v. Hellman Commercial T. & S. Bank, 203 Cal. 26, 42-43 [263 P. 240]; Morris v. Standard Oil Co., 192 Cal. 343 [219 P. 998, 30 A.L.R. 1103]; Zibbell v. Southern Pac. Co., 160 Cal. 237, 254 [116 P. 513].) There is considerable doubt whether this power was recognized at common law,⁴ but, as stated by this court in 1893, the practice is “too firmly established in this state by a long line of decisions to be now questioned.” (Davis v. Southern Pac. Co., 98 Cal. 13, 17, 18 [32 P. 646].) There may be no real distinction between the powers to increase~and decrease an award of damages, but it does not follow that because the practice of remitting damages over the defendant’s objection has been approved through what appears to have been a misconception of common law procedure, we must now allow the court to assess increased damages over the plaintiff’s objection, a practice which has even less' basis in the common law. Like the United States Supreme Court in the Dimick ease, we are reluctant to extend the precedent of the remittitur cases, by analogy or otherwise, to the present situation, since it would result in impairment of the right to jury trial.

Arguments to the effect that courts should be permitted to increase awards without the plaintiff’s consent because such procedure is more expeditious and would constitute an improvement over established practice might be persuasive if addressed to the people in support of a constitutional amendment, but they are not appropriate here.

The judgment is reversed as to both defendants.

Shenk, J., Edmonds, J., Carter, J., and Spence, J., concurred.

1 Por cases establishing the right of an injured party to proceed against an owner other than the registered owner, see Ferroni v. Pacific Finance Corp., 21 Cal.2d 773, 778 [135 P.2d 569]; Logan v. Serpa, 91 Cal.App.2d 818, 822 [206 P.2d 70] ; McCalla v. Grosse, 42 Cal.App.2d 546, 549-550 [109 P.2d 358].

2 Numerous eases contain broad statements recognizing the practice but involve procedural and factual situations distinguishable from the one before us. See, for example, Secreto v. Carlander, 35 Cal.App.2d 361, 364 [95 P.2d 476], Clausing v. Kershaw, 129 Wash. 67 [224 P. 573, 574], and Gaffney v. Illingsworth, 90 N.J.R. 490 [101 A. 243 at 243] [defendant refuses to assent to increase and appeals from order granting new trial, claiming court without power to make new trial order conditional] ; Esposito v. Lazar, 2 N.J. 257 [66 A.2d 172, 173], [defendant appeals from order granting new trial on issue of damages alone, claiming verdict indicated compromise—see, also, Elvin v. Public Service Coordinated Transp., 4 N.J.Super. 491 [67 A.2d 889, 890]; Blackmore v. Brennan, 43 Cal.App.2d 280, 289 [110 P.2d 723] [defendant, appealing from modified judgment, waived right to jury trial by consenting to increased award]; Adamson v. County of Los Angeles, 52 Cal.App. 125, 131 [198 P. 52] [collateral attack on modified final judgment in condemnation proceeding in which county had consented to increased award. Damages certain and computable.]

Minnesota and New Hampshire have noted the question of interference with plaintiff’s right to jury trial, but have not passed upon it. (Olson v. Christiansen, 230 Minn. 198 [41 N.W.2d 248-249]; Hackett v. Boston & M. R. R., 89 N.H. 514 [6 A.2d 139, 140, 142].)

3 Article I, section 7, of the California Constitution provides merely that the right of trial by jury “shall be secured to all and remain inviolate,” and it does not contain the further language that “no fact tried by a jury shall be otherwise re-examined . . . than according to the rules of the common law.”

4 It was apparently taken for granted in this state, as it was in the early federal courts, that the practice was established at common law. (See Dimick v. Schiedt, 293 U.S. 474, 482-484 [55 S.Ct. 296, 299-300, 79 L.Ed. 603, 95 A.L.R. 1150]; Benedict v. Cozzens (1854), 4 Cal. 381; see, however, Payne v. Pacific Mail Steamship Co. (1850), 1 Cal. 33, 36-37 and George v. Law, 1 Cal. 363, 364-365.)