Leipert v. Honold ( 1952 )

TRAYNOR, J.

On March 13, 1948, at about 11 p. m., two automobiles loaded with teen-age children were traveling west along U. S. Highway 101 near Newport Beach. The one in front was driven by Clifton Edwards. The other one, in which plaintiff Denny Leipert, 15, was riding, was driven by Phillip Duff, 18, whose parents owned it. It was a dark night, and it had sprinkled about an hour and a half before the accident. A defect in the steering apparatus caused Duff to lose control of the car, so that it swerved to the left across the highway. It was struck by a car driven in the opposite direction by defendant Woodrow John Honold. Plaintiff Denny Leipert and one other occupant of the Duff car were injured; the other five children, including the driver, were killed. Honold and his only passenger, Eleanor Brady, who is now his wife, were injured.

Denny brought this action through Charles J. Leipert, his father and guardian ad litem, alleging negligence on the part of Woodrow John Honold. Denny’s father also sued on his own behalf for reimbursement of medical expenses. Bernard M. Honold and George B. Honold, doing business as Honold Brothers Mortuary, were joined as defendants; they owned the car driven by Woodrow John Honold and had consented to his using it on this occasion. The case was consolidated for trial with four wrongful death actions brought against the same defendants by the parents of the children who were killed.

The evidence was sharply conflicting. Denny testified that the Duff, car was travelling about 40 miles per hour; that the driver said there was something wrong with the steering apparatus; that shortly thereafter “the wheels started acting funny, they started shimmying”; that “the car jerked across the road, and we came to a stop”; that “Our front wheels were away off the road and we were just about off the road”; that the driver “put on the brakes quick”; that the driver “opened his door and put one foot out and looked over the top of the hood of the car”; that the driver “got out and then got back in again, and then he said, ‘Some of you kids get out of the car,’ so he was going to try and back it up on the side of the road and see what was wrong, and he told me to ‘get out’ and I got the door open about’ 6 inches and I guess that’s when it happened”; and that he was knocked unconscious. He testified that he estimated that the Duff car had stopped about 13 seconds before it was struck. In answer to the question how he arrived at this figure he replied: “Well, I went down to the scene of the accident and I had somebody get behind me with a watch, and I went through the actions that the car did when it stopped, and what we did, and then I told the person in back of me, ‘That was about when the car hit/ and it was about thirteen seconds.” He testified that just before the Duff car got out of control, the Edwards car was from 20 to 35 yards ahead; that the brakes were not applied when the car started shimmying ; that as it went across the highway “it didn’t skid, it just tipped and was making a squealing sound”; that “it sounded like when you go around a corner too fast with a car, it will sort of squeal.” He testified that he did not see the Honold car before the collision.

Defendant Woodrow John Honold testified that he first saw the Edwards and Duff cars when they were about 200 to 250 yards away; that he passed the first car and at the same moment the other car swung over; that it first came across at an angle and then sharply turned across the road; that he was 100 to 125 feet away from it when it started across; that, its lights flashed in his eyes; that it was moving rapidly; that he was traveling from 40 to 50 miles an hour; that as the Duff car turned in front of him he tightened his grip on the wheel and turned to the right; that he did not put on his brakes; and that the other car was moving when the two cars collided.

The only other eyewitness to the accident was Jim Oakes, a boy who was riding in the rear seat of the Edwards car. He testified that he looked back and saw the Honold ear hit the Duff car; that “the Duff car was at right angles with the road, as I looked back, I just got a glimpse of the lights of the Honold car on it, and then they hit and it kind of lifted the car up ”; and that when he looked back the Edwards car was about 900 feet from the point of collision. No one in the Edwards car heard the collision.

A sergeant of the Newport Beach Police Department and an officer of the California Highway Patrol testified that at no point in the vicinity of either car were there any skid marks.

Lieutenant Smith, a traffic officer, was called as an expert by plaintiffs. On direct examination he was asked if he had formed an opinion as to whether or not the Duff car “was moving at the moment of impact.” He replied that he had, but defendants’ objection to his giving his opinion was sustained. He gave his opinion that the Honold car was traveling in excess of 45 miles an hour, but defendants’ objection to his giving his opinion as to the “minimum or maximum” speed of the Duff car was sustained. He gave his opinion on cross-examination that a car traveling 40 to 45 miles an hour, under road conditions 1-ike those in the present case, could not be stopped within a hundred feet without the application of brakes.

The jury returned verdicts in favor of the plaintiffs in all five actions. In the Leipert case, Denny was awarded damages of $500 against all three defendants jointly and, in addition, $700 against Woodrow John Honold alone; Denny’s father was awarded $1,000 against all three defendants jointly.

Defendants’ motion for a new trial was denied. The Leiperts’ motion for a new trial on the issue of damages only was granted as to Denny and denied as to his father. The trial court’s order stated that “the said motion for a new trial is granted upon the ground of insufficiency of the evidence to justify the verdict in that the amount awarded by the jury is not in conformity with the evidence adduced at the trial and is inadequate though not so far inadequate as to indicate passion or prejudice.” Defendants have appealed from the judgment and from the order granting Denny a partial new trial. No appeals were taken in the other four actions.

The power of a trial or appellate court to order a new trial on fewer than all the issues is generally recognized (see 66 C.J.S., New Trial, § 11, p. 87; 39 Am.Jur., New Trial, § 21, p. 44; 98 A.L.R. 941), and is authorized by statute in this state. (Code Civ. Proc., §§657, 662.)

The purpose of limited retrials is to expedite the administration of justice by avoiding costly repetition. Such retrials should be granted, however, only if it is clear that no injustice will result. (Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 499 [51 S.Ct. 513, 75 L.Ed. 1188] ; see 66 C.J.S., New Trial, §11, p. 88.) Some courts have expressed reluctance to limit new trials in negligence cases, suggesting that only rarely is such a step proper (Simmons v. Fish, 210 Mass. 563, 570 [97 N.E. 102, Ann. Cas. 1912D 588] ; Murray v. Krenz, 94 Conn. 503, 508 [109 A. 859].) Even in California, where new trials limited to the issue of damages have frequently been approved in personal injury and wrongful death actions, it has been held that a request for such a trial should be considered with the utmost caution (Donnatin v. Union Hardware & Metal Co., 38 Cal.App. 8, 11 [175 P. 26, 177 P. 845]; Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518, 528 [67 P.2d 398]) and that any doubts should be resolved in favor of granting a complete new trial. (Keogh v. Maulding, 52 Cal.App.2d 17, 21 [125 P.2d 858].)

The decision on limiting the new trial appropriately rests in .the discretion of the trial judge. It is presumed that in passing upon the motion he has weighed the evidence and the possibility of prejudice to the defendant. His decision will not be reversed on appeal unless an abuse of discretion is shown. (Tumelty v. Peerless Stages, 96 Cal.App. 530, 532 [274 P. 430] ; Amore v. Di Resta, 125 Cal.App. 410, 413 [13 P.2d 986]; Sanford v. Wilcox, 13 Cal.App.2d 193, 194 [56 P.2d 548] ; Tripcevich v. Compton, 25 Cal.App .2d 188, 191 [77 P.2d 286]; Hofart v. Southern Pac. Co., 33 Cal. App.2d 591, 602 [92 P.2d 436]; Cox v. Tyrone Power Enterprises Inc., 49 Cal.App.2d 383, 390 [121 P.2d 829]; Adams v. Hildebrand, 51 Cal.App.2d 117, 118 [124 P.2d 80] ; Hughes v. Schwartz, 51 Cal.App.2d 362, 364-365 [124 P.2d 886] ; Tornell v. Munson, 80 Cal.App.2d 123, 124 [181 P.2d 112].)

Such an abuse is shown when the damages are inadequate, the record discloses that the issue of liability is close, and other circumstances indicate that the verdict was probably the result of prejudice, sympathy, or compromise or that for some other reason the liability issue has not actually been determined.

There can be no doubt that the damages awarded plaintiff Denny Leipert were inadequate. Forty or fifty stitches were required to close the lacerations of his scalp and forehead, which will remain partially scarred. His pelvis was broken in two places; one fracture was complete. There was a definite shock of the brain and nervous system controlling the eyes. He also suffered a rupture of the bladder, which necessitated an abdominal operation that left a considerable amount of scar tissue in and around the bladder. He was confined in the hospital for about three weeks and was then removed to his home, where he remained in bed another six or seven weeks. Several weeks after he returned home he suffered a low-grade bladder infection, which was probably a result of his injuries. Approximately five months elapsed from the date of the accident before he was able to go about his usual activities.

It is also readily apparent from the record that the issue of liability was very close. The Duff car and the Honold car were approaching each other on a curved-four-lane highway on a dark night. When the Duff car got out of control and crossed to the wrong side, the driver of the other car was confronted with a situation demanding rapid reactions. Whether the Duff car was moving into the path of the other car when it was struck or whether it had stopped long enough before it was struck to enable a reasonably careful operator of the other car to avoid a collision was the crucial question in the case. The testimony that the Duff car was stopped for 13 seconds before it was struck was that of a 15-year-old boy who was knocked unconscius at the time and who was later timed in going “through the actions that the car did when it stopped and what we did.” The testimony of Jim Oakes, the boy in the Edwards car, also presented the jury with a close question of fact. Plaintiff contends “If the Edwards automobile was traveling at 40 miles per hour it was covering 58.7 feet per second and if immediately before the steering mechanism of the Duff automobile broke, the two vehicles were only a few car lengths apart, approximately 15 seconds would have elepsed between the time when the Edwards automobile passed the point where the collision subsequently occurred and arrived at the point from which Jim Oakes saw the collision occur.” Defendants argue that this contention does not take into consideration the speed of the Duff car, the fact that the plaintiff testified that “there were no brakes on in the Duff ear” or the fact that there were no skid marks in the vicinity of either car. They conclude that if plaintiffs’ “version of the collision were true the Duff car coasted without the application of brakes and came to a stop by the loss of momentum. This would mean that the Duff car starting at the speed of at least forty miles per hour gradually lost momentum and came to a stop. The difficulty with the calculations is that they consider only the Edwards car. It is impossible to accept the conclusion that, without the application of brakes or skidmarks on the highway, the Duff car, which had been travelling at least 40 miles per hour, suddenly stopped and remained stopped for at least thirteen seconds, while the Edwards car travelled nine hundred feet west.”

The record shows that the jury had great difficulty with these questions and indicates that its verdict was probably the result of a compromise.

The jury went out at 11:30 a. m. At 4 p. m. it returned and asked to hear that part of the testimony of Lieutenant Smith relating to the crucial question whether the Duff car was moving or stopped when the collision occurred. His testimony on direct examination was read to the jury, but his testimony on cross-examination was not. Counsel stipulated that it was an accurate statement of his testimony. Thereafter two jurors insisted that Lieutenant Smith had given other testimony bearing on the question whether the Duff car was moving or stopped at the time of impact. The court said, “The testimony on that point has been read to you” and sent the jury out. It is apparent that the testimony of the witness that was not read to the jury supports the inference that the Duff car was moving at the instant of impact, whereas his testimony that was read supports a contrary inference. Defense counsel did not request the reading of the additional testimony or make any objection or comment. (See Duncan v. J. H. Corder & Son, 18 Cal.App.2d 77, 84 [62 P.2d 1387].) The important consideration, however, is not whether the court committed error in not having the testimony on cross-examination read to the jury, but the fact that the interest of the two jurors in having that testimony read indicates that the jury was having great difficulty in finding any negligence on the part of Woodrow John Honold.

At 9 :17 p. m. the jury returned and announced that it had reached its verdicts. In each of the wrongful death cases the verdicts awarded $5,000 against all three defendants jointly and an additional $300 against Woodrow John Honold. In the Leipert case the verdict, awarded Denny Leipert $4,000 against all three defendants jointly and an additional $300 against Woodrow John Honold, and awarded Charles J. Leipert $1,000 against all three defendants. The award against the owners of the Honold ear exceeded the maximum permitted by Vehicle Code, section 402. The jury was polled on the verdicts, more than three answering that they were not their verdicts. In the Leipert case five jurors answered “No” and one juror answered “half yes, and half no.” The court announced that the verdicts were incomplete and then read section 402 of the Vehicle Code and the rest of an instruction explaining how the section was to be applied. The jury returned to the jury room and was again brought in at 11:30 p. m., when the foreman announced that they could not reach a verdict. Upon inquiry by the court each juror expressed the opinion that they would be unable to agree. After considerable discussion the jury was again sent out. At 12:33 a. m. the jury returned with a verdict in this action awarding Denny Leipert $500 against all three defendants jointly, and an additional $700 against Woodrow John Honold. The jury was again polled and it stood nine to three in favor of the verdict.

The jury was out 13 hours, including the time out for lunch and dinner. After it was out four and a half hours it asked to have material evidence on the issue of liability reread. Five hours later it returned a verdict that was repudiated by six of the jurors. Three and one-half hours later it brought in a nine-to-three verdict awarding $1,200 instead of the $4,300 provided in the earlier proposed verdict.

The long deliberation could not have been caused by any dispute in regard to the nature and extent of Denny’s injuries. After his parents testified with regard to expenses incurred in his treatment, no questions were asked on cross-examination. No evidence was introduced by defendants to contradict any of the testimony of Denny or his father in regard to the nature or treatment of Denny’s injuries. Any difficulty must have arisen from a cause other than difficulty in regard to the nature and extent of his injuries. It is true that the jury was confused on the apportionment of damages under Vehicle Code section 402, but it is also true that it had great difficulty in determining whether or not defendant Woodrow John Honold was negligent and that only after prolonged disagreement was a 9-3 verdict returned awarding grossly inadequate damages.

We have concluded that the record in this case so strongly indicates that the inadequate verdict for Denny Leipert was the result of compromise that it would be unjust to defendants to have a new trial limited to the issue of damages.

Although defendants have appealed from the judgment, they have limited their arguments to the appeal from the order granting Denny Leipert a limited new trial. They seek a reversal of the order granting a limited new trial, and a reversal -of the judgment only if that is necessary to preclude a limited new trial. Moreover, they have expressly stated that if the order is reversed they wish the judgment to stand. Plaintiffs also have expressly stated that they wish the judgment to stand if a limited new trial may not be had. They did not appeal from the judgment and did not move for a complete new trial in the event a limited new trial should be denied; they have vigorously urged that they intended that “the action of the trial court be restricted to either granting or denying the motion as made” and that neither the trial court nor the appellate courts have jurisdiction to order a complete new trial on the basis of that motion.. It is clear, therefore, that all parties have deliberately waived any rights to a reversal of the judgment. Under these circumstances, the judgment should be affirmed. (Estate of Hinde, 200 Cal. 710, 715-716 [254 P. 561]; Hatch v. Galvin, 50 Cal. 441, 443; Hartman v. San Pedro Commercial Co., 66 Cal.App.2d 938 [153 P.2d 214].)

The order granting a new trial is reversed. The judgment is affirmed. Bach party is to bear his own costs on appeal.

Gibson, C. J., Shenk, J., Edmonds, J., Sehauer, J., and Spence, J., concurred.