Albrecht v. Broughton

• Decision Date: 31 March 1970
• Citation: 6 Cal.App.3d 173,85 Cal.Rptr. 659
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph William ALBRECHT, a minor, by and through his guardian ad litem William R. Albrecht, Plaintiff and Appellant, v. Gilbert Stuart BROUGHTON, Mary G. Broughton, Defendants and Respondents. Civ. 26010.

Page 659

85 Cal.Rptr. 659

6 Cal.App.3d 173

Joseph William ALBRECHT, a minor, by and through his guardian ad litem William R. Albrecht, Plaintiff and Appellant, v. Gilbert Stuart BROUGHTON, Mary G. Broughton, Defendants and Respondents.

Civ. 26010.

Court of Appeal, First District, Division 4, California.

March 31, 1970.

Hearing Denied May 28, 1970.

Caputo, Liccardo & Burriesci, by Salvador A. Liccardo, San Jose, for appellant.

Campbell, Custer, Warburton & Britton, by Alfred B. Britton, Jr., San Jose, for respondents.

CHRISTIAN, Associate Justice.

Plaintiff Joseph William Albrecht appeals from a judgment entered upon a defense verdict returned by the jury in this action for personal injuries.

During the early morning of March 14, 1966 a pickup truck driven by respondent Gilbert Stuart Broughton collided with appellant, a boy then aged 14, who was riding a bicycle. Respondent was driving to work when the collision occurred, at a time which witnesses put at between 5:50 and shortly after 6:00 a.m. Just prior to the collision respondent was travelling between 25 and 35 miles per hour. Respondent had been driving east along Terrace Drive in Cupertino, when appellant, delivering newspapers on his bicycle, entered the 'T' intersection formed where Terra Bella runs into Terrace Drive. Appellant attempted to cross the intersection to the northeast. Respondent first saw appellant just before entering the intersection; he immediately applied his brakes. Respondent knew that appellant usually delivered papers in the area of the collision at about 5:30. Respondent's own newspaper had not been delivered, but delivery had been stopped during respondent's vacation; he testified that he therefore assumed that appellant had already completed his paper route and had skipped respondent's house. But there was evidence that it was not unusual for the boy not to have completed his route by that time.

Appellant is permanently and totally disabled by injuries he suffered in the collision. The jury returned a general verdict for the defense.

Before the trial began, counsel for appellant moved for an order prohibiting the defense from presenting evidence that appellant had already received $75,000 under a settlement with respondent's employer, Dickman Construction Company. In support of the motion counsel declared that the court might 'as a matter of law, * * * deduct the amount recovered by way of settlement from (any) verdict, * * *' The court refused to adopt the procedure suggested by appellant and instead decided to receive evidence of the settlement, supposedly to prevent excessive recovery by appellant and to prevent the possibility of double payment by respondent, should Dickman Construction Company seek indemnity against him for the amount it paid in settlement. Appellant pointed out that news of the settlement might be harmful to his case in that the jury might consider it unfair for appellant to release a corporate defendant for $75,000 and then press a further claim for over a million dollars against an individual. Two other aspects of possible prejudice are that the compromise might reflect upon appellant's opinion of the strength of his case and upon the seriousness of appellant's injuries. Apparently in order to mitigate the effect of these factors, the court permitted appellant to bring in evidence, and argue that evidence before the jury, to explain why so comparatively small a settlement was accepted in compensation for appellant's catastrophic injuries.

The amount of damages to be awarded upon a finding of liability is, in the first instance, an issue of fact framed by the pleadings. Where one codefendant has been released upon payment of an amount in settlement of the claim against him, the remaining codefendant may be entitled to a reduction of the claim against him. (Code Civ.Proc. § 877, subd. (a).) For the purpose of determining whether such entitlement exists, subsidiary issues of fact may be presented. Therefore, 'evidence of such payments is admissible for the purpose of reducing Pro tanto the amount of damages (a plaintiff) may be entitled to recover.' (Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 813, 155 P.2d 633, 637; see also Steele v. Hash (1963) 212 Cal.App.2d 1, 3--4, 27 Cal.Rptr. 853.) But where there is an admission 'that a settlement has been made with one or more joint tortfeasors in a certain amount there is no factual question to be resolved by the jury respecting the settlement.' (Cseri v. D'Amore (1965) 232 Cal.App.2d 622, 625, 43 Cal.Rptr. 36, 38; compare procedure followed in Williams v. Stauffer Chemical Co. (1956) 146 Cal.App.2d 322, 324, 304 P.2d 141, 143.) Here, appellant explicitly admitted the existence and amount of the settlement which had been made with Dickman Construction Company. The court could easily give effect to the admission either by requiring a clear stipulation as to procedure or by accpeting the admission and later directing an appropriate reduction before entering judgment on the verdict. By doing so, the court could both have reduced trial time by eliminating irrelevancies and have prevented unnecessary prejudice to appellant's case.

Respondent seems to claim a vested interest in having the jury made aware of the fact of a settlement and of its amount. No doubt respondent's counsel was correct in believing that it was tactically advantageous for him to be able to bring this information to the jury in a case where the evidence on liability was in sharp conflict and the damages were so severe. There can be no question that it was a great advantage to the defense to be able to let the jury know that appellant's injuries were not wholly uncompensated. But that advantage is not one which a party is Entitled to enjoy in the absence of any issue in the determination of which the evidence will be relevant and proper for the jury to hear. The situation is closely analogous to an admission of liability by a defendant. Such an admission precludes the introduction of evidence of liability unless it is relevant to some distinct issue remaining in the case. (Fuentes v. Tucker (1947) 31 Cal.2d 1, 187 P.2d 752; 2 Witkin, California Evidence, § 305, p. 268.) That is so even though, as in Fuentes, supra, the party offering the evidence is deprived of an important tactical advantage. Indeed, where the evidence is not relevant to any real issue, the advantage sought to be gained by its presentation must be recognized as unfair. Each side takes the risk that the 'picture' of the case seen by the jury may be an unfavorable decisional context. But neither side is entitled to litigate a nonexistent issue for no purpose other than to alter the decisional context in his favor. It was error to refuse to accept appellant's admission and to receive evidence of the settlement.

The evidence bearing on the issues determining liability was sharply conflicting. Experience in the trial of cases suggests that jury psychology in the determination of liability is inevitably affected by the particular and perhaps limited view which the jurors have been given, of the consequences of the decision they are to make Our examination "of the entire cause, including the evidence," (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, 255, cert. den. Watson v. Teets, 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55) leads us to believe that it is reasonably probable that but for the jury's knowledge that a substantial settlement had already been received they would have returned a verdict in some amount in favor of appellant. Therefore the judgment is not saved by article VI, section 13, of the California Constitution.

Because a new trial will be necessary, we shall deal briefly with appellant's principal contentions concerning the instructions.

The court refused an instruction requested by appellant to the effect that an adult is required to exercise special care when dealing with a 'youth of adolescent years.' ¹

It might appear that the requested instruction is no more than an amplification of a general instruction which covers the subject. Where a defendant fails to exercise that care which would have been exercised by a man of ordinary prudence in the same situation and possessing the same knowledge, he is chargeable with negligence. (Kopfinger v. Grand Central Pub. Market (1964) 60 Cal.2d 852, 37 Cal.Rptr. 65, 389 P.2d 529.) Here the fact that respondent may have known that a paper-boy might be in the vicinity would be one of the factors considered by the trier of fact in determining what a reasonable man would have done in the situation. But it has been held that failure to give such an instruction if applicable is error. (Calandri v. Ione Unified School District, Supra, 219 Cal.App.2d 542, 33 Cal.Rptr. 333; Morningred v. Golden State Co. (1961) 196 Cal.App.2d 130, 16 Cal.Rptr. 219; Guyton v. City of Los Angeles, Supra, 174 Cal.App.2d 354, 344 P.2d 910.) Therefore it would be better to give the instruction on retrial.

Appellant claims error in the giving of a standard instruction on imminent peril. The contention is that the instruction was inapplicable because as a matter of law re...