Opinion
1-29-1952
TOSHIO HAMASAKI et al. v. FLOTHO et al.* L. A. 22006.
Parker, Stanbury & Reese and Raymond G. Stanbury all of Los Angeles, for appellants. Culbert L. Olson, John H. Carter, Los Angeles, and Richard C. Olson, Beverly Hills, for respondents.
TOSHIO HAMASAKI et al.
v.
FLOTHO et al.*
Jan. 29, 1952.
Rehearing Granted Feb. 28, 1952.
Parker, Stanbury & Reese and Raymond G. Stanbury all of Los Angeles, for appellants.
Culbert L. Olson, John H. Carter, Los Angeles, and Richard C. Olson, Beverly Hills, for respondents.
TRAYNOR, Justice.
Plaintiff Toshio Hamasaki was struck by an automobile driven by defendant Fred Flotho, Jr. The latter was acting in the course of his employment by defendant Leland and was using the car with the consent of its owner, defendant Fred Flotho, Sr. Toshio and his father brought this action to recover for injuries and medical expenses.
The accident occurred in a residential neighborhood while Toshio, who was then not quite six years of age, was crossing the street in the middle of the block. At the trial plaintiffs contended that the defendant driver was traveling at an excessive rate of speed and was not maintaining a reasonable lookout for pedestrians. Defendants contended that the driver was not speeding and that plaintiff suddenly darted from be hind a parked truck into the path of the automobile. Although it was conceded that Toshio was severely injured, the extent of his injuries was contested.
The jury returned a verdict in favor of plaintiffs for $1,000. Defendants' motion for a new trial was denied. Plaintiffs' motion for a new trial on the issue of damages only was granted after defendants refused to consent to a judgment of $7,500. Defendants have appealed from the order granting plaintiffs' motion. There is no appeal from the judgment.
Defendants do not claim that the damages awarded by the jury are adequate. It is their position that the jury compromised the liability issue and that liability was therefore never determined. They suggest even that the verdict is 'less than a compromise,' that is, that the jury concluded defendants were not liable but nevertheless, out of sympathy, allowed plaintiffs approximately the amount of the special damages.
Although the granting of a new trial limited to the issue of damages rests primarily in the discretion of the trial court, it is an abuse of discretion to grant such a new trial if the question of liability is close, if the damages awarded are grossly inadequate, and if there are other circumstances that indicate that the verdict was the result of prejudice or an improper compromise. Leipert v. Honold, Cal.Sup., 240 P.2d 288.
(1) Evidence of liability. The accident took place on Carmelita Street in Los Angeles. The pavement is 30 feet wide and has no center line. There are houses on most of the adjoining lost, but no sidewalks. Between the pavement and the houses on each side of the street there is a dirt shoulder. Immediately before the accident Toshio was walking south on the east shoulder. A truck was parked on the shoulder in the middle of the block, approximately 195 feet south of the nearest intersection. A witness saw Toshio pass the truck on the side away from the pavement and then turn around it into the street. At that moment this witness looked away and did not see the accident. The defendant driver was also proceeding south on Carmelita. He testified that he was driving at 20 to 25 miles per hour. Other witnesses variously estimated his speed at from 35 to 60 miles per hour, but they also testified that he stopped within 50 feet beyond the point of impact. Just before the accident he had moved into the east half of the street to pass around another truck parked partially off the pavement on the west side. Photographs of his skid marks indicate that at the point of impact he had returned to the west side; his left skid mark passed over a manhole cover in the center of the street. He testified that Toshio suddenly rar into his path from behind the truck when only 15 feet in front of the moving car and that it was then impossible to avoid the accident. Toshio did not testify.
In view of the residential character of the neighborhood, the testimony that the driver was traveling 60 miles per hour would fully justify the conclusion that he was negligent, but the opposing evidence was also ample to uphold a contrary finding. Even if the jury found against defendants on that issue, however, difficulties remained in connection with the defense of contributory negligence. Toshio was crossing in the middle of the block, and until he entered the street he was obscured by the parked truck. The jury could have inferred from the evidence either that he did not look to see whether or not any vehicles were approaching or that, having looked, he nevertheless darted into defendant's path. The accident occurred 20 days before Toshio's sixth birthday; it was for the jury to say whether or not he exercised reasonable care for his safety, judged by his age and intelligence. Smith v. Harger, 84 Cal.App.2d 361, 369, 191 P.2d 25; Carrillo v. Helms Bakeries, 6 Cal.App.2d 299, 304, 44 P.2d 604; see 107 A.L.R. 4. The testimony indicated that he was of above average intelligence for his age and had been taught to go into the street only at crosswalks or intersections.
It is apparent that the jury faced a difficult task in resolving the questions of negligence and contributory negligence.
(2) Inadequacy of damages. Plaintiffs' special damages were stipulated to be $817.10. Thus, the award of $1,000 allowed only $182.90 for general damages.
When taken to General Hospital immediately following the accident, Toshio was not expected to live. He was unconscious for several days. His injuries included brain concussion, a complete fracture of the collar bone, and several fractures of the skull. Three of the skull fractures were extensive; one of them resulted in a separation of almost half an inch and a depression of almost one-quarter of an inch. There were two puncture wounds in the forehead, the coverings of the left eyeball were swollen, and the pupils were unequal. There was also a bilateral ankle clonus. This much was not contested. In addition there was mdeical testimony that as a result of the accident Toshio was suffering from permanent psycho-motor epilepsy and that he would require continuous mdeical care throughout the remainder of his life. This latter evidence, however, was disputed by defendants' medical experts. Toshio's teachers were in disagreement as to whether or not he had made a substantial recovery insofar as his school activities were concerned.
Even if the jurors rejected the evidence or permanent injury, it is inconceivable that they regarded $182.90 as adequate compensation for the brain concussion, the broken clavicle, the various skull fractures, and the other injuries admittedly sustained. The conclusion is inescapable that the verdict was not the result of an effort to assess the pecuniary value of Toshio's suffering. Had the jury truly believed that defendants were liable, the verdict would have been for many times this amount.
Plaintiffs contend, however, that whenever the jury allows full compensation for special damages and any amount, no matter how small, for general damages, the trial court's decision to allow a limited new trial will not be reversed on appeal. Such a view offers the convenience of a mechanical formula, but it ignores the principles that govern the granting of partial new trials. A new trial limited to the damages issue may be ordered by the trial court when it can reasonably be said that the liability issue has been determined by the jury. A refusal to allow for undisputed special damages is usually convincing evidence that the jury failed to make a decision of the liability issue, and that circumstance has therefore been stressed in a number of appellate opinions. See Wallace v. Miller, 26 Cal.App.2d 55, 56, 78 P.2d 745; Donnatin v. Union Hardware & Metal Co., 38 Cal.App. 8, 11, 175 P. 26; Id. 177 P. 845. In a particular case, however, gross inadequacy of unliquidated general damages may be just as convincing. Thus, in Simmons v. Fish, 210 Mass. 563, 571, 97 N.E. 102, it was held that a verdict of $200 for the loss of an eye was a conclusive indication that the jury had compromised the issues of liability and damages. See, also, Schuerholz v. Roach, 4 Cir., 58 F.2d 32, 34 ($625 for loss of eye); Keogh v. Maulding, 52 Cal.App.2d 17, 21, 125 P.2d 858 (verdict for $291.23 more than undisputed damages). As a general rule, it is only when the verdict allows a substantial, even though inadequate, amount for general damages that it can reasonably be concluded that the jury's error related solely to the damages issue. Hughes v. Schwartz, 51 Cal.App.2d 362, 368, 124 P.2d 886; McNear v. Pacific Greyhound Lines, 63 Cal.App.2d 11, 16, 146 P.2d 34. In view of Toshio's serious injuries, $182.90 cannot be regarded as substantial.
Taylor v. Pole, 16 Cal.2d 668, 675, 107 P.2d 614, does not conflict with the foregoing authorities. In that case the error necessitating a new trial directly involved the trial court's instructions regarding damages. Moreover, the evidence of defendant's liability was 'overwhelming.' The new trial was therefore limited to the damages issue even though, as to one of the plaintiffs, the jury had awarded less than the undisputed special damages. See, also, Crandall v. McGrath, 51 Cal.App.2d 438, 440-442, 124 P.2d 858; Loughran v. McKenna, 60 R.I. 453, 457, 199 A. 302; cf. Keogh v. Maulding, 52 Cal.App.2d 17, 21-22, 125 P.2d 858. In the present case the jury was properly instructed concerning damages and the issue of liability was close, so that the grossly inadequate award cannot reasonably be explained as a mere error of the jury in the assessment of damages.
(3) Other circumstances indicating compromise. The order granting plaintiffs' motion for a limited new trial provided that if defendants would consent to a judgment of $7,500, the motion would be deemed denied. This proposal of the trial judge thus allowed $6,682.90 for general damages more than 36 times the $182.90 allowed in the verdict. The great disparity between the jury's determination and that of the judge provides an additional and striking indication that the jurors could not agree on the liability issue and that those who believed defendants were liable consented to inadequate damages in return for the votes of those who had decided that defendants should pay nothing.
Ordinarily the conclusion that the verdict was the result of an improper compromise would necessitate a reversal of the judgment and a complete new trial. In the present case, however, we have concluded that we have no jurisdiction to do more than reverse the order granting a limited new trial.
No appeal lies from the trial court's denial of defendants' motion for new trial; they may have that ruling reviewed only through an appeal from the judgment. City of Los Angeles v. Glassell, 203 Cal. 44, 46, 262 P. 1084; Litvinuk v. Litvinuk, 27 Cal.2d 38, 42, 162 P.2d 8; Caldwell v. Caldwell, 80 Cal.App.2d 378, 384, 182 P.2d 258. They have not appealed from the judgment, and, since timely notice of appeal is a jurisdictional requirement, Estate of Hanley, 23 Cal.2d 120, 122, 142 P.2d 423, 149 A.L.R. 1250, we are therefore without jurisdiction to review the judgment or the denial of defendants' motion.
The only appeal before us is that from the order granting plaintiffs' motion for a limited new trial. In disposing of this appeal we have jurisdiction to do no more than the trial court itself could have done. See Tomales Bay Oyster Corp. v. Superior Court, 35 Cal.2d 389, 392, 217 P.2d 968; Crescent Feather Co. v. United Upholsterers' Union, 153 Cal. 433, 434, 95 P. 871; Byxbee v. Dewey, 128 Cal. 322, 326, 60 P. 847; Wheller v. Bolton, 92 Cal. 159, 167 28 P. 558; Bloxham v. Tehama County Telephone Co., 29 Cal.App. 326, 340, 155 P. 654. We can affirm the order or reverse it, but we cannot direct a complete new trial, for the trial court, on a motion for a limited new trial, could not go beyond the jurisdiction conferred by the motion and order a new trial on all issues. Quevedo v. Superior Court, 131 Cal.App. 698, 702, 21 P.2d 998; Cox v. Tyrone Power Enterprises, Inc., 49 Cal.App.2d 383, 389, 121 P.2d 829, see, also, Mercantile Trust Co. v. Superior Court, 178 Cal. 512, 520, 174 P. 51.
It has been urged that the rule of the Quevedo case is inconsistent with the action of the court in Keogh v. Maulding, 52 Cal.App.2d 17, 22, 125 P.2d 858, and should be disapproved. In the Keogh case the plaintiff's motion for a new trial on the issue of damages only was granted by the trial court, and the defendant appealed; as in the present case, there was no appeal from the judgment. The appellate court ordered a complete new trial, but without discussing whether or not it had jurisdiction to do so. An examination of the briefs filed in that case, and of the petition for a hearing in this court, shows that at no time was the issue of jurisdiction raised, nor was the Quevedo case cited. The court and parties alike appear not to have realized that the court might be without power to order a complete new trial once the limited new trial had been found to be improper. Under these circumstances, and in view of the through discussion of jurisdiction in the Quevedo case, Keoth v. Maulding cannot be regarded as controlling.
There are additional reasons for adhering to the rule of the Quevedo case. It is well settled on California that no new trial may be ordered unless a motion therefor has been made by an aggrieved party. Tabor v. Superior Court, 28 Cal.2d 505, 507, 170 P.2d 667; Prothero v. Suprior Court, 196 Cal. 439, 444, 238 P. 357; Ransome-Crummey Co. v. Superior Court, 188 Cal. 393, 398, 205 P. 446; Title Insurance & Trust Co. v. California Development Co., 171 Cal. 173, 194, 152 P. 542; Kohlstedt v. Hauseur, 24 Cal.App.2d 60, 64, 74 P.2d 314. It is also settled that in passing on such a motion the trial court is limited to the grounds specified therein, Polk v. Boggs, 122 Cal. 114, 117, 54 P. 536; Laver v. Hotaling, 115 Cal. 613, 616, 47 P. 593; Sitkei v. Frimel, 85 Cal.App.2d 335, 337, 192 P.2d 820; Cox v. Tyrone Power Enterprises Inc., 49 Cal.App.2d 383, 389, 121 P.2d 829; O'Malley v. Carrick, 60 Cal.App. 48, 51-52, 212 P. 45; see, also, 20 Cal.Jur. 162, and may give relief only to the party by whom the motion has been made. Watkins v. Nutting, 17 Cal.2d 490, 499, 110 P.2d 384; cf. Del Barrio v. Sherman, 16 Cal.App.2d 407, 412-413, 60 P.2d 559. The holding of the Quevedo case is in harmony with the decisions in these analogous situations involving the power of the trial court to grant a new trial on its own motion. Throughout all these cases there appears a well-established principle that new trails may be granted only to the extent that they are sought by the parties.
Moreover, the Quevedo the possesses practical advantages. Cases will arise in which the additional damages that may be awarded by a second jury will not compensate the plaintiff for the delay, expense, and uncertainty involved in retrying all the issues. In such a situation, he would be benefited by a new trial only if it were limited to the question of damages, and he should be permitted to seek that relief without fear that his motion will be used as the basis for ordering a complete new trial. The defendant likewise may desire to pay the relatively small judgment in preference to undergoing a costly, even if successful, repetition of the litigation. He, rather than the trial judge, should be the one to determine whether or not the setting aside of the compromise verdict will be of ultimate benefit to him. No prejudice results from the rule, inasmuch as either party, by moving for a complete new trial, may confer upon the trial court all the jurisdiction necessary to correct the error.
If the plaintiff prefers a new trial on all issues to none at all, he can move for a complete new trial and in his argument on the motion urge the trial court to limit the new trial to the question of damages; or he can make an alternative motion, asking for a limited new trial and if that cannot be granted for a complete net trial.
The order is reversed.
SHENK, EDMONDS, SCHAUER, and SPENCE, JJ., concur.
CARTER, Justice (dissenting).
I dissent.
My dissent in Leipert v. Honold, Cal.Sup. 240 P.2d 288, is equally applicable to this case. Here the majority of this court again invade the province of the trial court, and after weighing the evidence, which was sharply conflicting, finds the trial court guilty of abusing its discretion in granting plaintiff a new trial on the issue of damages only. The majority opinion in this case is a shocking example of the ruthless violation by members of this court of the settled rule that the weight and sufficiency of evidence are matters solely within the province of the trial court. If there ever was a case where the discretion of the trial judge in granting a motion for a new trial should be upheld, this is it. Yet the majority, while admitting that the evidence is sharply conflicting on all the issues, undertakes to resolve those conflicts contrary to the conclusion reached by the trial court. The majority of this court even goes so far as to hold that the issue of liability in this case was not determined by the jury. It states: 'A new trial limited to the damages issue may be ordered by the trial court when it can reasonably be said that the liability issue has been determined by the jury. A refusal to allow for undisputed special damages is usually convincing evidence that the jury failed to make a decision of the liability issue, and that circumstance has therefore been stressed in a number of appellate opinions.'
In holding, as it does in this case, that the issue of liability was not determined by the jury, the majority flatly contradict the record and its decision is therefore based upon a false premise. It must be remembered that the verdict of the jury was in favor of the plaintiff for $1,000. How could this be if it did not determine the issue of liability? It must also be remembered that the plaintiff was a 5 year old child of Japanese parentage who was crossing a street when struck by defendant's automobile. The mdeical testimony as to the extent of the injuries also was in sharp conflict. In such a case anything could happen during the deliberations of the jury. In holding that the damages awarded plaintiff were inadequate as a matter of law the majority must accept as true the mdeical evidence produced on behalf of plaintiff, which is narrated in the majority opinion as follows: 'When taken to General Hospital immediately following the accident, Toshio was not expected to live. He was unconscious for several days. His injuries included brain concussion, a complete fracture of the collar bone, and several fractures of the skull. Three of the skull fractures were extensive; one of them resulted in a separation of almost half an inch and a depression of almost one-quarter of an inch. There were two puncture wounds in the forehead, the coverings of the left eyeball were swollen, and the pupils were unequal. There was also a bilateral ankle clouns. This much was not contested. In addition there was medical testimony that as a result of the accident Toshio was suffering from permanent paycho-motor epilepsy and that he would require continuous medical care throughout the remainder of his life.'
In view of the foregoing, for this court to find the trial court guilty of an abuse of discretion in granting a new trial on the issue of damages only, and reverse the order, thus entitling the defendant to recover his costs on appeal, with no opportunity for the plaintiff to ever retry the case or obtain further redress, is, to my mind, not only unsound from the standpoint of legal reasoning, but is so cruel and inhuman as to shock the sense of justice of all who may read the majority opinion.
I would, therefore, affirm the order granting the limited motion for a new trial. --------------- * Subsequent opinion 248 P.2d 910.