Campbell v. Zokelt
| Decision Date | 28 April 1969 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Eva S. CAMPBELL, Plaintiff and Respondent, v. Carl G. ZOKELT, Defendant, Cross-Complainant, Cross-Defendant and Respondent, Willy DeWinter, Defendant, Cross-Complainant, Cross-Defendant and Appellant. Civ. 24607. |
Gudmundson, Siggins, Stone & Goff, W. W. Gudmundson, San Francisco, for appellant.
Hitchcock & Coulter, Santa Rosa, James P. Preovolos, San Francisco, for respondent Zokelt.
Gladstein, Andersen, Leonard & Sibbett, Lewis J. Yapp, San Francisco, for respondent Campbell.
In these cross-actions for personal injuries and property damage sustained in an automobile collision, defendant and cross-complainant, Willy DeWinter, appeals from an order granting a new trial on grounds of inconsistency of the verdicts to plaintiff, Eva S. Campbell (hereafter Campbell), and defendant and cross-complainant, Carl G. Zokelt (hereafter Zokelt). DeWinter contends that the jurors' affidavits erroneously stricken by the trial court indicate that the verdicts are not inconsistent, and that in any event, Campbell and Zokelt waived any rights they might have had by failing to object to the forms of the verdict.
The accident occurred on April 27, 1964, on Highway 128 about 14 miles east of Rutherford. Zokelt, an 80-year-old retired mining engineer, was driving his 1957 GM pickup truck east on his way to Sacramento, with Mrs. Campbell, who, on a profit-sharing basis, assisted him in the promotion of mining properties. Attached to Zokelt's truck was an 8-foot-wide trailer. DeWinter, who was 29 years old, was proceeding westward in a 1960 Mercury convertible on his way from Lake Berryessa to his home in Santa Rosa.
At the scene of the accident, Highway 128 is a narrow winding two-lane road without a center line. The two vehicles met on an extremely sharp curve, after each had seen the other only an instant prior to the impact. There were no witnesses other than the parties, and the only plausible cause of the collision was that one or both vehicles were on the wrong side of the road. Accordingly, the contributory negligence of both drivers was an important issue.
On the crucial fact, the point of impact, the evidence was in sharp conflict. Campbell and Zokelt testified that DeWinter was on their side of the road, and that the truck was struck in two places by the Mercury. DeWinter stated that he could not tell whether the Zokelt vehicles were over the nonexistent center line and that he collided only with the trailer. The California Highway Patrolman who investigated the accident, fixed the point of impact as being on DeWinter's side of the road, and Zokelt's violation as the cause of the accident. The garage operator who removed the wreckage noted some indenations containing white paint from another vehicle on the left side of the truck. Zokelt and Campbell testified that the DeWinter vehicle was white or cream colored; DeWinter and the Highway Patrol Officer that it was yellow.
As a result of the accident, Campbell was hospitalized and sustained medical expenses totaling $2,781.85. Zokelt received emergency medical treatment and claimed medical expenses of $47, as well as $2,700 in property damage for the truck and trailer, which were damaged beyond repair.
Campbell filed this action for personal injuries against Zokelt and DeWinter. Zokelt cross-complained against DeWinter for personal injuries and property damage; DeWinter, in turn, cross-complained against Zokelt for property damage. About a week before trial, for a payment of $6,500, Campbell gave Zokelt a covenant not to execute. This fact was elicited on cross-examination and a copy of the covenant introduced into evidence.
The jury returned the following verdicts: in favor of Campbell against DeWinter, with damages of zero; in favor of DeWinter against Zokelt; and against Zokelt on his cross-complaint against DeWinter. No objection was made to the form of the verdicts, and judgment was entered.
Campbell and Zokelt moved for a new trial on all of the statutory grounds. In opposition thereto, DeWinter filed the declarations of two members of the jury, stating that the jury could not find the form of the verdict in favor of DeWinter and against Campbell and thought the verdict with zero damages reflected its finding that DeWinter was free from negligence. The trial court, at the hearing on the motion for a new trial, struck the affidavits as they were being used to impeach the verdict (Code Civ.Proc. § 657, subd. 2) and granted the new trial on the basis of the inconsistency of the verdicts (Code Civ.Proc. § 657, subd. 6). This appeal ensued.
A decision can be said to be 'against law' within the meaning of Code of Civil Procedure, section 657, subdivision 6, where...
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