Bennett v. Brown
| Decision Date | 05 February 1963 |
| Citation | 212 Cal.App.2d 685,28 Cal.Rptr. 485 |
| Parties | Victor BENNETT, Plaintiff and Respondent, v. Bernard Francis BROWN, Defendant and Appellant. Civ. 10506. |
| Court | California Court of Appeals Court of Appeals |
Desmond & Miller, Sacramento, for appellant.
A. John Merlo, Chico, for respondent.
This is an appeal from an order retaxing costs.
Victor Bennet brought an action against Bernard Francis Brown to recover damages for personal injuries incurred as a result of an assault and battery.
On August 28, 1959, Bennett filed his complaint. On March 17, 1961, Brown served on counsel for Bennett an offer of compromise which read:
'You and each of you will please take notice that the defendant, BERNARD FRANCIS BROWN, does offer to allow judgment to be taken against him in the above-entitled action in the sum of $600.00 pursuant to the provisions of Section 997, Code of Civil Procedure of California.'
This offer was refused. The cause proceeded to trial and the jury returned a verdict of $500 in favor of Bennett. Bennett filed a cost bill totaling $198.40. Brown filed a cost bill of $570.30. The trial court awarded Bennett his costs and denied Brown's costs. This appeal followed:
Section 997 of the Code of Civil Procedure provides:
This section has been construed to mean that the plaintiff in an action may recover his costs accruing in his favor before an offer of judgment though he may recover a less favorable judgment and that he is to be charged with the defendant's costs after that time. (Douthitt v. Finch, 84 Cal. 214, 24 P. 929; Robinett v. Brown, 167 Cal. 735, 141 P. 368; Smith v. New York, O. & W. R. Co., 119 Misc. 506, 196 N.Y.S. 521.)
In 13 California Jurisprudence 2d it is stated at page 230: 'Although ordinarily a plaintiff' upon a judgment in his favor is entitled as a matter of course to his costs in an action for the recovery of money or damages or of personal or real property, where the defendant in good faith and with ability to perform offers, before trial or judgment, to allow judgment to be taken against him by way of compromise, and the plaintiff fails to accept and obtains a judgment less favorable than that offered, the plaintiff may not recover his costs incurred subsequent to the offer, but must pay the defendant's costs incurred after the offer.'
In the case at bench plaintiff's costs at at the time of defendant's offer and before trial as taxed by the court were the following:
Clerk's fees filing complaint .. $12.00
Sheriff's fees, service .......... 1.70
Notary fees ...................... 1.00
Depositions ..................... 75.95
Service of subpoenas ............. 8.80
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Total ............. $99.45
The amount of the verdict was $500. Plaintiff's costs at the time the offer was made were $99.45. This is a total of $599.45 or below the amount of the offer which was $600.
Respondent does not challenge the sufficiency of the offer but his principal argument is that the judgment as entered after the trial must be viewed in order to determine whether the judgment is more favorable than the offer. The trial court expressed the same view.
It is a cardinal rule of statutory construction that a statute should, if possible, be given an interpretation which will give effect to the legislative intent and which is consistent with the real object...
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