Clifford v. Ruocco

• Decision Date: 16 July 1952
• Citation: 246 P.2d 651,39 Cal.2d 327
• Court: California Supreme Court
• Parties: CLIFFORD v. RUOCCO. L. A. 22178.

Page 651

246 P.2d 651

39 Cal.2d 327

CLIFFORD v. RUOCCO.

L. A. 22178.

Supreme Court of California.

July 16, 1952.

Edgar B. Hervey, San Diego, and Henry F. Walker, Los Angeles, for appellant.

McInnis & Hamilton and John W. McInnis, San Diego, for respondent.

GIBSON, Chief Justice.

Plaintiff was given judgment upon a jury verdict in an action for personal injuries arising out of an automobile collision. She takes this appeal, contending that the award of damages is inadequate and that the judgment is therefore unsupported by the evidence.

Plaintiff rented living accommodations from defendant, and she testified that she did so with the understanding that he would provide her with transportation to and from her place of employment. While driving plaintiff to work one morning, defendant went through a stop light and collided with another car. As a result of the accident, plaintiff sustained injuries which required extensive medical treatment and hospital care. There is ample evidence that defendant's negligence was the proximate cause of the collision, but he claims that he did not agree to drive plaintiff to work and that she accepted the ride without giving compensation. The jury made a special finding that plaintiff was a passenger in defendant's car and not a guest, ¹ and it returned a verdict in plaintiff's favor in the sum of $1,500. Plaintiff moved for a new trial on the ground that the amount of damages awarded was inadequate. The trial judge ruled that plaintiff's motion would be denied if, within ten days, defendant would file a consent to pay $2,000 in satisfaction of the judgment, but that the motion would be granted on all the issues if defendant failed to file a consent. Defendant filed a consent within the prescribed period, but plaintiff declined to take the increased amount in satisfaction of her claims. The court did not compel her to accept the additur, the motion for new trial was denied, and judgment was rendered on the verdict for $1,500. Cf. Dorsey v. Barba, 38 Cal.2d 350, 240 P.2d 604.

The evidence establishes without contradiction that plaintiff suffered a scalp laceration and bruises to her side and leg, including a deep bruise of the thigh. A painful infection developed in her thigh, making it necessary for her doctor to incise the wound and drain the accumulated matter. Afterwards, adhesions formed between the skin tissue and the underlying muscles, causing plaintiff considerable discomfort and hindering her in the full use of her leg. An operation performed to remove the adhesions proved unsuccessful, and the area again became infected. She continued to suffer from pain and swelling in her leg up to the time of trial, and her doctor testified that there was a reasonable probability that another operation would be required in order to remedy this condition. Plaintiff incurred expenses for ambulance, hospital and medical service in the amount of $1,159.42, and the cost of the future operation was estimated at $300. In addition, her loss of earnings amounted to approximately $630. These items alone, which amounted to over $2,000, exceeded the $1,500 awarded by the jury. In addition, plaintiff sought recovery for pain and discomfort resulting from her injuries. She was confined to a hospital for 24 days, she experienced a considerable amount of pain and inconvenience for a year before the case came to trial, and there was evidence that she was likely to continue to suffer for some time in the future. Under these circumstances, it is clear that the award of damages was inadequate as a matter of law, and the judgment must be reversed.

We must next determine whether the case should be remanded on all the issues or on the issue of damages alone. It has been held that on an appeal from a judgment where the evidence as to liability is 'overwhelming' a retrial may be limited to the issue of damages. Taylor v. Pole, 16 Cal.2d 668, 675, 107 P.2d 614; cf. Crandall v. McGrath, 51 Cal.App.2d 438, 440-442, 124 P.2d 858. Where, however, the evidence as to liability is in sharp and substantial conflict, and the damages awarded are so grossly inadequate as to indicate a compromise on the issues of liability and damages, the case should be remanded for a retrial of both issues. Wilke v. Crofton, 34 Cal.2d 304, 310, 209 P.2d 790; Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518, 529-530, 67 P.2d 398; see also, Wallace v. Miller, 26 Cal.App.2d 55, 58-59, 78 P.2d 745; Donnatin v. Union Hardware & Metal Co., 38 Cal.App. 8, 10-11, 175 P. 26, 177 P. 845. A failure to allow for undisputed special damages and loss of earnings is one circumstances which the courts have considered as being some indication of a compromise verdict. See Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518, 529-530, 67 P.2d 398; see also, Woods v. Eitze, 94 Cal.App.2d 910, 915, 212 P.2d 12; Hughs v. Schwartz, 51 Cal.App.2d 362, 368-370, 124 P.2d 886.

In the present case the evidence establishes that defendant's negligence was the proximate cause of plaintiff's injuries. It is not contended, however, that the evidence would support a finding that defendant was intoxicated or was guilty of wilful misconduct, and there is a sharp and substantial conflict in the evidence on the question of whether plaintiff paid compensation for the ride. See Vehicle Code, § 403. As we have seen, plaintiff testified that she rented living accommodations from defendant only after he assured her that he would furnish her with transportation to and from her place of employment, and there is other evidence which tends to corroborate her testimony. On the other hand, defendant denied having made such a promise and stated that he provided her with transportation merely as a gratuity.

In view of this conflict in the evidence, and considering that the damages awarded were less than plaintiff's undisputed special damages and loss of earnings, it would appear that the verdict was the result of a compromise on the issues of liability and damages, and substantial justice requires that the case be retried in its entirety.

The judgment is reversed.

SHENK, EDMONDS, TRAYNOR, SCHAUER, and SPENCE, JJ., concur.

CARTER, Justice.

I concur in the judgment of reversal but cannot agree with the reasoning of the majority on which it bases its conclusion that the action should be retried on all the issues. It is obvious that the majority has not analyzed the decisions which have given consideration to this problem.

From a study of the cases it is apparent that the function of the appellate court in determining whether or not a new trial should have been granted, and whether some or all of the issues should be retried, varies with what has happened in the trial court. This must be true if we are to follow the traditional rule relating to the function of the trial court in ruling on a motion for a new trial.

It must be remembered that in the case at bar the trial court denied plaintiff's motion for a new trial, after having stated that unless the defendant consented to an increase of $500 in the amount awarded to plaintiff, it would grant a new trial on all the issues. The defendant consented to this increase, but the plaintiff refused to accept the same, and the trial court thereupon denied plaintiff's motion for a new trial. The record before us, therefore, presents a question similar to that presented in Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518, 67 P.2d 398, cited in the majority opinion. There the trial court had denied plaintiff a new trial after a jury had returned a verdict in his favor for $5,000 on a second trial, when a verdict of $20,000 in favor of plaintiff had been awarded at a first trial, and a new trial granted. It is obvious that the appellate court there was confronted with the question as to whether or not the trial court had committed error in denying plaintiff's motion for a new trial which does not appear to have been limited to the issue of damages only, but the plaintiff asked the appellate court to reverse the judgment with directions that the case be retried on the issue of damages only. The opinion in the Bencich case was prepared by Mr. Justice Bray who was then sitting pro tem in the District Court of Appeal. It is a very able and scholarly opinion and correctly states the rule applicable to the questions presented in the case, and which are applicable to the case at bar. The difficulty with the reasoning of the majority in the case at bar is that it confuses the legal problems involved in a case such as this with the rule applicable to cases where the trial court has granted a motion for a new trial on the issue of damages only, as the majority opinion cites the cases of Hughes v. Schwartz, 51 Cal.App.2d 362, 124 P.2d 886, and Woods v. Eitze, 94 Cal.App.2d 910, 212 P.2d 12, as being governed by the same rule as the Bencich case. I will attempt to demonstrate the fallacy of such holding.

It must be conceded that the only statutory authority for a trial court to grant a new trial because of the inadequacy of the damages awarded is that such ground comes within the purview of insufficiency of the evidence to support the verdict or judgment set forth in subdivision 6 of section 657 of the Code of Civil Procedure. See 20 Cal.Jur. 104. It has been the traditional rule that if there is a conflict in the evidence, even though the evidence is overwhelmingly in favor of the party against whom the motion is granted, the order of the trial court granting a new trial on insufficiency of the evidence will not be disturbed on appeal, Brignoli v. Seaboard Transportation Co., 29 Cal.2d 782, 791, 178 P.2d 445; Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 358, 170 P.2d 465; Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 163 P.2d 689. Such being the rule where a new trial is granted on the insufficiency of the evidence, and the same rule being applicable to a limited new trial, or a new trial on certain issues only, which is...