Vargas v. Ruggiero

• Decision Date: 06 December 1961
• Parties: Angel VARGAS et al., Plaintiffs, Cross-Defendants and Appellants, v. Domenique RUGGIERO, Defendant, Cross-complainant and Respondent. Civ. 46.
• Court: California Court of Appeals Court of Appeals

Page 568

17 Cal.Rptr. 568

197 Cal.App.2d 709

Angel VARGAS et al., Plaintiffs, Cross-Defendants and Appellants, v. Domenique RUGGIERO, Defendant, Cross-complainant and Respondent.

Civ. 46.

District Court of Appeal, Fifth District, California.

Dec. 6, 1961.

Rehearing Denied Jan. 2, 1962.

Hearing Denied Jan. 31, 1962.

T. N. Petersen, Merced, for appellants.

Willard B. Treadwell, Merced, for respondent.

CONLEY, Presiding Justice.

This is an appeal from an order granting the motion of the defendant, Domenique Ruggiero, for a judgment notwithstanding the jury's verdict in favor of the plaintiff, Clara Vargas, and from the judgment for said defendant entered pursuant thereto.

The complaint filed by plaintiffs, Angel Vargas and Clara Vargas, husband and wife, against the defendants, Domenique Ruggiero and his alleged agent, Virgil Mocci, is in two counts; the first, a cause of action by Clara Vargas, sounding in tort for a miscarriage; the second, a cause of action by the husband for an accounting and an injunction preventing threatened eviction from his home property contrary to his alleged contractual rights. The defendant, Ruggiero, cross-complained to quiet title to the plaintiffs' home place and for sums claimed to be due him, which claims were denied in the answer to the cross-complaint. During the trial by jury it was agreed by counsel that the second cause of action and the issues raised by the cross-complaint be separately litigated before the court at a later date, and the case then proceeded on the tort claim alone.

The claim of Clara Vargas, as set forth in the complaint, is that Virgil Mocci, agent of Domenique Ruggiero, at his direction,

'* * * came to the residence of plaintiffs * * * and did carelessly and negligently, in a malicious, rude, violent, threatening and insolent manner, threaten, yell at, menace, intimidate, malign, forewarn, defy and maledict the plaintiff, Clara Vargas, who was then and there pregnant with child, by about two months, thereby greatly upsetting and disturbing her, * * *'

With the result that,

'* * * she was rendered generally sick, and suffered and sustained shock, nausea, and a miscarriage. * * *' The jury's verdict was as follows:

'We, the jury in the above-entitled cause, find the defendants, Domenique Ruggiero and Virgil Mocci, his agent, liable for the miscarriage suffered by the plaintiff, clara Vargas, and assess damages as follows: $8,000.00 General Damages. Actual & Hospital Medical expenses. Dated this 9 day of July 1959. A. R. Cocke, Foreman.'

No objection was made by the court or by either counsel to the form of the verdict, and, in fact, the record indicates that it had been previously agreed upon by counsel. Obviously, the verdict as to 'actual and hospital expenses' is a nullity, because it completely disregards the jury's duty to fix damages. (Watson v. Damon, 54 Cal. 278, 280; 48 Cal.Jur.2d Trial, § 239, pp. 253-254; 89 C.J.S. Trial § 497, p. 160.) However, this observation does not compel a conclusion that the form of the rest of the verdict is not sound; it awards $8,000 in general damages to plaintiff against both defendants.

The defendant, Ruggiero, through his counsel, immediately moved for a judgment notwithstanding the verdict, and the motion was granted; consequently, judgment was thereafter entered in his favor. The codefendant, Mocci's, similar motion for a judgment notwithstanding the verdict was denied; but his later motion for a new trial was granted, although this latter fact is irrelevant so far as this appeal is concerned.

The sole question to be determined here is whether the trial court erred in granting Ruggiero's motion for a judgment notwithstanding the verdict. The duty of the court in passing on such a motion is thus stated in Reynolds v. Willson, 51 Cal.2d 94, 99, 331 P.2d 48, 51:

'As noted, the jury returned a verdict in favor of the plaintiff and the only question to be determined on the appeal is whether there is sufficient competent evidence in the record to support the verdict on any of the theories relied upon.

'The rules which govern the disposition of a motion for judgment notwithstanding the verdict, as in this case, are familiar. Such a motion may be granted only if a motion for a directed verdict should have been granted (Code Civ.Proc., § 629). The power of the court to direct a verdict is subject to the same limitations as its power to grant a nonsuit. (Pellett v. Sonotone Corp., 1945, 26 Cal.2d 705, 708, 160 P.2d 783, 160 A.L.R. 863.) A nonsuit may be granted only where, disregarding conflicting evidence on behalf of the defendants and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff. In re Estate of Lances, 1932, 216 Cal. 397, 400, 14 P.2d 768; see also 24 Cal.Jur., p. 913, and cases cited.

'In conformity with the foregoing rules the main if not the only problem presented is whether (disregarding all conflicting evidence favorable to the defendants), there is sufficient substantial evidence to support the verdict on any tenable theory of liability.' (See also Sparks v. Allen Northridge Market, 176 Cal.App.2d 694, 1 Cal.Rptr. 595; Gonzales v. Derrington, 10 Cal.Rptr. 700 ¹; Hozz v. Felder, 167 Cal.App.2d 197, 334 P.2d 159; Kirk v. Los Angeles Ry. Corp., 26 Cal.2d 833, 161 P.2d 673, 164 A.L.R. 1; Jones v. Hotchkiss, 147 Cal.App.2d 197, 305 P.2d 129.)

We deduce that the trial court based its ruling on the belief that there was inadequate proof of Mocci's agency, not only from the court's statement in the record, but because it contemporaneously denied Mocci's similar motion.

Was there sufficient evidence to support the jury's finding of agency? In reviewing the testimony the inquiry is necessarily limited to the question whether there is substantial evidence to support the verdict which was overridden by the trial court. For this purpose we must accept as true all evidence favoring the plaintiff and all legitimate inferences based thereon. The court is not concerned with conflicts in the evidence, or with whether a verdict adopting a contrary conclusion would have been upheld on appeal, or with any question as to the credibility of witnesses, or the relative weight of conflicting evidence.

In Malloy v. Fong, 37 Cal.2d 356, 372, 232 P.2d 241, 251, it is said:

'An agency relationship may be informally created. No particular words are necessary, nor need there be consideration. All that is required is conduct by each party manifesting acceptance of a relationship whereby one of them is to perform work for the other under the latter's direction. See 1 Cal.Jur., Agency, 694, 696, §§ 5, 7; Restatement, Agency, §§ 15, 16, 26, 34, 225.'

As observed in Brokaw v. Black-Foxe Military Institute, 37 Cal.2d 274, 278, 231 P.2d 816, 818:

'[T]he existence of agency is generally a question of fact, and 'whether he was such agent was an issue sharply contested at the trial, and was to be determined by the court upon a consideration of the entire evidence respecting the course pursued by him during the negotiations, rather than upon any specific testimony by him or by the defendant as to the fact (of agency); and the inference which the trial court might reasonably make from such evidence is entitled to the same consideration as its finding of a fact upon contradictory evidence.' Willey v. Clements, 146 Cal. 91, 96, 79 P. 850, 851. See, also, Ferroni v. Pacific Finance Corp., 21 Cal.2d 773, 135 P.2d 569; 1 Cal.Jur. 696-697, 865.'

Agency is not dependent upon proof of compensation (Flores v. Brown, 39 Cal.2d 622, 628, 248 P.2d 922; Rest., Agency, § 16, p. 85.) It may be shown by the conduct of the parties and by action or inaction on the part of the principal. (Buckley v. Silverberg, 113 Cal. 673, 45 P. 804; Ford v. Lou Kum Shu, 26 Cal.App. 203, 146 P. 199.)

In Ferroni v. Pacific Finance Corp., supra, 21 Cal.2d 773, 779, 135 P.2d 569, 572, the court says:

'* * * evidence of a prior course of dealing between appellant and the partnership in similar transactions would be relevant on the question of an agent-principal relationship between them, * * *'

and that,

'An implied agency relationship may arise from the words and conduct of the parties and the circumstances of the particular case.'

In Ellis v. Crawford, 39 Cal. 523, 526, 527, a suit by plaintiff to recover money for work done on two schooners where agency was claimed, the court held:

'[T]he jury were required to take into consideration all the facts and circumstances attending the construction of the schooners. * * *

'It being the province of the jury to find the capacity in which the defendant acted in the building of the schooners, and the evidence on this point being very conflicting, we cannot disturb the verdict as being contrary to the evidence.'

In Bergtholdt v. Porter Bros. Co., 114 Cal. 681, 688, 46 P. 738, 739, the rules laid down in Ellis v. Crawford, supra, were followed:

'Agency and the extent of the power of an agent are question of fact [Citation], and may be established by parol, except in those cases where a written authorization is expressly required by positive law. [Citation.] It may be established by circumstantial evidence.'

The record shows that Domenique Ruggiero was a money lender who resided in San Francisco and that Virgil Mocci, who had lived in Merced County since 1920, was widely acquainted there. He was involved in the institution and enforcement of numerous loans made by Ruggiero in Merced County. His activities included interviews with prospective borrowers, both in and out of the presence of Ruggiero, and of at least one trip to San Francisco for the purpose.

Mocci claimed that he never received compensation from Ruggiero for these multifarious activities,...