Opinion
Page __
__ Cal.App.2d __ 230 P.2d 656 CARY et ux. v. WENTZEL et al. Civ. 18195. California Court of Appeals, Second District, Second Division May 3, 1951.Hearing Granted June 28, 1951.
Subsequent opinion 240 P.2d 304.
Rehearing Denied May 17, 1951.
[230 P.2d 657] A. H. Brazil, San Luis Obispo, for appellant Lawrence Wentzel.
Kenneth J. Thayer, Bakersfield, for respondents.
McCOMB, Justice.
After trial before a jury in an action to recover damages for injuries resulting from the negligent operation of defendants' automobile, they appeal from (1) the judgment, and (2) the order granting plaintiffs' motion for a new trial on the issue of damages only. There is also a purported appeal from the verdict.
Facts: Viewing the evidence in the light most favorable to plaintiffs (respondents), the record discloses that defendant Lawrence Wentzel on a dark rainy afternoon drove his automobile on the left side of the center line on the highway, down a steep hill, around a curve which obstructed his view, and collided with an automobile which was being driven in the opposite direction by Robert Seelinger. As a result of the impact the Seelinger automobile was thrown to a position on the highway which made it impossible for plaintiffs' car to avoid a collision with it. Just prior to the accident plaintiffs' automobile was following the car driven by defendant at a proper speed and distance.
As a result of the accident Mr. Seelinger filed an action for negligence against defendants. The heirs of Dora Grove, who was a passenger in the Seelinger car, also filed an action for negligence, and plaintiffs instituted the present suit. By stipulation the three cases were consolidated for trial.
The jury returned a verdict in the Seelinger and Grove cases in favor of defendants (appellants herein), and in this action in favor of plaintiffs (respondents herein), awarding them damages in the sum of $1,000. Thereafter the trial court granted plaintiffs' motion for a new trial on the issue of damages solely.
A. Defendants Appeal from the Judgment.
Defendants contend that since the jury found against Seelinger and Grove they impliedly found that defendants were not negligent in the operation of their car at the time of the accident; on the other hand, the finding of the jury in favor of plaintiffs in the instant cause was an implied finding that defendants were negligent in the operation of their car. Consequently the findings in the two actions based on the same evidence are inconsistent and the judgment herein should be reversed.
Since there is no right of contribution between joint tort-feasors, where the evidence sustains a judgment against a defendant [230 P.2d 658] as in the instant case, he may not urge as error the fact that his codefendant or another party who was also sued was relieved from liability even though the evidence might have sustained a verdict or judgment against the codefendant or other party. (Blackwell v. American Film Co., 189 Cal. 689, 698, 209 P. 999; Jennings v. Day, 7 Cal.App.2d 555, 557, 46 P.2d 193; Switzler v. Atchison, T. & S. F. Ry. Co., 104 Cal.App. 138, 156, 285 P. 918; Haun v. Tally, 40 Cal.App. 585, 590, 181 P. 81; see also cases cited in 6 West's California Digest (1951) Appeal and Error, k880(2), page 243.)
Since defendant has not urged other errors in the sustaining of the judgment it is deemed any other points attacking the judgment have been waived by them. (Heglin v. F. C. B. A. Market, Inc., 70 Cal.App.2d 803, 806, 161 P.2d 976.)
B. Defendants' Appeal from the Order Granting the Motion for a New Trial on the Issue of Damages Only.
Question: Was it error for the trial court to grant a motion for a new trial on the issue of damages only? No. It is the general rule that in the absence of an abuse of discretion a trial court may grant a new trial on the issue of damages alone. (McNear v. Pacific Greyhound Lines, 63 Cal.App.2d 11, 15, 146 P.2d 34; Hughes v. Schwartz, 51 Cal.App.2d 362, 364, 124 P.2d 886; Bauman v. City and County of San Francisco, 42 Cal.App.2d 144, 159, 108 P.2d 989; Brush v. Kurstin, 11 Cal.App.2d 258, 262, 53 P.2d 777.) 1
For an exception to the general rule see Hamasaki v. Flotho, ---- Cal.App.2d ----, 229 P.2d 801.
An examination of McNett v. Volfi, 205 Cal. 89, 93, 269 P. 932, fails to disclose any holding contrary to the above cited cases.
Metropolitan Life Insurance Company v. Ray, 28 Ala.App. 357, 184 So. 282, which states a contrary rule is not authority in this state in view of contrary holdings of our appellate courts. (In re Estate of Hampe, 85 Cal.App.2d 557, 559, 193 P.2d 133; Schneider v. Schneider, 82 Cal.App.2d 860, 862, 187 P. [2d] 459).
In the present case the testimony disclosed that plaintiffs had incurred special damages in the sum of $704; that as a result of the accident Mary Cary had suffered from injury to her knee and back; that two of her teeth had been knocked out; and that from the time of the accident until the time of trial she had been confined to her bed almost constantly.
It is evident that the trial court did not abuse its discretion in holding that $296 was not adequate general damages for the pain and suffering resulting to plaintiffs from the accident.
C. Defendants' Appeal from the Verdict.
An appeal does not lie from a verdict. Therefore defendants' purported appeal from the verdict must be dismissed. (Robins v. Weis, 97 Cal.App.2d 144, 145, 217 P.2d 156; Signorelli v. Miller, 55 Cal.App.2d 538, 543, 130 P.2d 730; Sawyer v. Sunset Mutual Life Ins. Co., 8 Cal.2d 492, 501, 66 P.2d 641. See also authorities cited in 5 West's California Digest Appeal and Error, k108, page 133.)
The judgment and order granting the motion for a new trial on the issue of damages only are and each is affirmed. The purported appeal from the verdict is dismissed.
MOORE, P. J., concurs.
WILSON, J., concurs in the judgment.