Baxter v. Phillips

• Citation: 4 Cal.App.3d 610,84 Cal.Rptr. 609
• Court: California Court of Appeals Court of Appeals
• Decision Date: 19 February 1970
• Parties: A. M. BAXTER, Plaintiff and Respondent, v. L. Dudley PHILLIPS and the State of California, Defendants and Appellants. C. H. UNDERHILL et al., Plaintiffs and Respondents, v. L. Dudley PHILLIPS and the State of California, Defendants and Appellants. Civ. 25273, 25411.

Page 609

84 Cal.Rptr. 609

4 Cal.App.3d 610

A. M. BAXTER, Plaintiff and Respondent, v. L. Dudley PHILLIPS and the State of California, Defendants and Appellants.

C. H. UNDERHILL et al., Plaintiffs and Respondents, v. L. Dudley PHILLIPS and the State of California, Defendants and Appellants.

Civ. 25273, 25411.

Court of Appeal, First District, Division 1, California.

Feb. 19, 1970.

Rawles, Nelson, Golden, Poulos & Hinkle, Ukiah, for plaintiffs and respondents.

Bell & Cox, Ukiah, for defendant and appellant L. Dudley Phillips.

Thomas C. Lynch, Atty. Gen., R. H. Connett, Dep. Atty. Gen., Sacramento, for defendant and appellant State of California.

SIMS, Associate Justice.

Defendants, L. Dudley Phillips and the State of California, have appealed from an order granting a new trial to the plaintiffs in each of two actions which have been consolidated for trial and for purposes of this appeal.

The jury returned a general verdict in favor of the defendants, ¹ and, pursuant to the instructions of the court, a special verdict setting forth its findings with respect to the damages suffered by the plaintiffs in each action in itemized form. The sole issue raised by the defendants on appeal is whether or not it was error for the trial court to grant a new trial on the issue of damages. Since neither the plaintiffs nor the defendants requested or suggested to the trial court that any order granting a new trial be limited to the issue of liability, the true issue is whether the court erred as a matter of law in granting a new trial on all of the issues. The record reveals that the lower court was never required to pass upon the question of the sufficiency of the evidence to sustain the findings with respect to damages contained in the special verdict. The evidence on the question of damages was conflicting, and does not indicate that the findings of the jury must be sustained as a matter of law. The order granting a new trial on all of the issues must, therefore, be affirmed.

Statement of the Case

By his complaint in 1 Civil 25273, A. M. Baxter, the owner of a ranch in Mendocino County, sought damages for injury to his property resulting from a fire which, by permit of and with assistance from defendant, State of California, was conducted by defendant L. Dudley Phillips on his property and subsequently spread to plaintiff Baxter's adjoining property. In 1 Civil 25411, plaintiffs C. H. Underhill, et al., the owners of grazing rights on the Baxter ranch, sought damages for destruction of their livestock feed as a result of the same fire. Both complaints predicated defendant's liability on theories of negligence, nuisance, and strict liability.

At the trial conflicting evidence was received to support these theories and concerning the nature of, the existence of and the amount of the various items of damage claimed by the plaintiffs.

At the conclusion of the trial, a conference was held in chambers between court and counsel concerning the instructions which the court would give. At that time the court indicated that it would instruct the jury only on the negligence theory of liability and would itself decide as a matter of law whether defendants were liable to plaintiffs on the theory of either nuisance or absolute liability. In accordance with this conclusion the court indicated that it would submit to the jury a form on which they would be required, in the event they found for defendants on the issue of liability, to assess the amount of damages sustained by plaintiffs as to each of the various items of damage which they claimed.

In addition, the court indicated that it would determine as a matter of law whether double damages should be awarded for any of the items of damages which the jury might award to plaintiffs. Accordingly, the court concluded that it would submit a special verdict form to the jury with the instruction that if the jury found for plaintiffs against defendants (or either of them) they were to assess on the special verdict form the amount of damages sustained by plaintiffs as to each of the various items of damage which they claimed.

The jury, having been instructed in accordance with these principles, ² returned a verdict in favor of defendants (see fn. 1) and in addition returned special findings assessing the amount of damages caused by the fire as to each of the various items of damage claimed by plaintiffs. Thereafter, plaintiffs moved for a new trial on all of the statutory grounds. Although the motion was addressed to 'the general verdict of the jury rendered herein in favor of defendants * * *,' it prayed for 'a new trial herein on all of the issues.' (Emphasis added.) Among the grounds asserted are: 'Inadequate damages, appearing to have been determined under the influence of bias or prejudice' and 'Insufficiency of the evidence to justify the verdict.' In their points and authorities plaintiffs asserted, 'The special findings of the jury on the amount of damage caused bear no logical connection with the evidence introduced on that subject.' ³

In granting plaintiffs' motion on the ground of error in law occurring at the trial, the court, in its 'Specification of Reasons,' indicated that it based its order on the fact that since it had erroneously assumed that the burning permit which defendant Phillips had obtained from the State of California was valid, the court had erroneously failed to instruct the jury as to the illegality of conducting a fire in the absence of a permit, and as to the significance of certain fire regulations set forth in the Forest Practices Rules. The court concluded its 'Specification of Reasons' with the following comment: 'Other points were raised in plaintiffs' briefs requesting a new trial. * * * The Court before granting the motion for new trial did not have an opportunity to thoroughly consider the other points and for this reason is expressing no opinion concerning their merit or lack of merit. The reasons set forth herein are the reasons which motivated the Court to grant the new trial.'

Discussion

The defendants' contention that the new trial should have been limited is predicated on two general propositions. The first is that a new trial may be granted 'on all or part of the issues.' (Code Civ.Proc. § 657. See also, Little v. Superior Court (1961) 55 Cal.2d 642, 645, 12 Cal.Rptr. 481, 361 P.2d 13; Leipert v. Honold (1952) 39 Cal.2d 462, 466--467, 247 P.2d 324; Robinson v. Muir (1907) 151 Cal. 118, 125, 90 P. 521; Collins v. Lucky Markets, Inc. (1969) 274 A.C.A. 701, 711, 79 Cal.Rptr. 454; People ex rel. Dept. of Pub. Wks. v. Mascotti (1962) 206 Cal.App.2d 772, 776, 778, 23 Cal.Rptr. 846, 24 Cal.Rptr. 679; Garcia v. San Gabriel Ready Mixt (1959) 173 Cal.App.2d 355, 358--359, 343 P.2d 327; Crandall v. McGrath (1942) 51 Cal.App.2d 438, 439, 124 P.2d 858.) The second is that a new trial should not be granted in the absence of an error that was prejudicial to the moving party. (See, Adkins v. Lear, Inc. (1967) 67 Cal.2d 882, 920--921, 64 Cal.Rptr. 545, 435 P.2d 321 (vacated on other grounds, Lear v. Adkins (1969) 395 U.S. 653, 89 S.Ct. 1902, 231 L.Ed. 610); Sparks v. Redinger (1955) 44 Cal.2d 121, 123, 279 P.2d 971; and Dunford v. General Water Heater Corp. (1957) 150 Cal.App.2d 260, 266, 309 P.2d 958.)

'The purpose of limited retrials is to expedite the administration of justice by avoiding costly repetition.' (Leipert v. Honold, supra, 39 Cal.2d 462 at p. 466, 247 P.2d 324, at 327. See also, Little v. Superior Court, supra, 55 Cal.2d 642, 645, 12 Cal.Rptr. 481, 361 P.2d 13; Robinson v. Muir, supra, 151 Cal. 118, 125, 90 P. 521; Garcia v. San Gabriel Ready Mixt, supra, 173 Cal.App.2d 355, 359, 343 P.2d 327; and cf. Jehl v. Southern Pac. Co. (1967) 66 Cal.2d 821, 828--829, 59 Cal.Rptr. 276, 427 P.2d 988.) The defendants point out that from the pages of the reporter's transcript it appears that 78 percent of the testimony was addressed to the question of damages. They insist that the issues relating to the various items of damages claimed by plaintiffs were fully and fairly tried, and that since the jury returned a verdict for the defendants there could not possibly be any taint of compromise in the amounts recorded in the special verdict.

All parties agree that the decision on whether a new trial should be had on all issues or on limited issues is committed in the first instance, to the discretion of the trial judge. (See, Hamasaki v. Flotho (1952) 39 Cal.2d 602, 604--605, 248 P.2d 910; Cary v. Wentzel (1952) 39 Cal.2d 491, 492, 247 P.2d 341; Rose v. Melody Lane (1952) 39 Cal.2d 481, 488, 247 P.2d 335; Leipert v. Honold, supra, 39 Cal.2d 462, 467, 247 P.2d 324; Collins v. Lucky Markets, Inc., supra, 274 A.C.A. 701, 711, 79 Cal.Rptr. 454; Berg v. Sonen (1964) 230 Cal.App.2d 434, 436, 41 Cal.Rptr. 37; Garcia v. San Gabriel Ready Mixt, supra, 173 Cal.App.2d 355, 359, 343 P.2d 327; Ona v. Reachi (1951) 105 Cal.App.2d 758, 233 P.2d 949; Crandall v. McGrath, supra, 51 Cal.App.2d 438, 439, 124 P.2d 858; and Amore v. Di Resta (1932) 125 Cal.App. 410, 414, 13 P.2d 1041.) When the trial judge has exercised this discretion to grant a limited new trial his action will be upheld where the issue reserved as final has been fully, fairly and separately determined by the trier of fact and no injustice will result. (See, Little v. Superior Court, supra, 55 Cal.2d 642, 646, 12 Cal.Rptr. 481, 361 P.2d 13; Berg v. Sonen, supra, 230 Cal.App.2d 434, 437, 41 Cal.Rptr. 37; People ex rel. Dept. of Pub. Wks. v. Mascotti, supra, 206 Cal.App.2d 772, 778, 23 Cal.Rptr. 846, 24 Cal.Rptr. 679; Garcia v. San Gabriel Ready Mixt, supra, 173 Cal.App.2d 355, 360, 343 P.2d 327; Crandall v. McGrath, supra, 51 Cal.App.2d 438, 440, 124 P.2d 858; and Amore v. Di Resta, supra, 125 Cal.App. 410, 415, 13 P.2d 1041.) Similarly, an appellate court in reversing a case for an error at the trial, upon finding that one issue, be it liability or damages, is not tainted by any error, may order...