Crowe v. Sacks

• Decision Date: 24 May 1955
• Citation: 283 P.2d 689,44 Cal.2d 590
• Court: California Supreme Court
• Parties: Barbara CROWE and Ellen Lowe, Plaintiffs and Respondents, v. Frank W. SACKS, Appellant. L. A. 23539.

Page 689

283 P.2d 689

44 Cal.2d 590

Barbara CROWE and Ellen Lowe, Plaintiffs and Respondents, v. Frank W. SACKS, Appellant.

L. A. 23539.

Supreme Court of California, In Bank.

May 24, 1955.

Eugene S. Ives, Los Angeles, for appellant.

Parker, Stanbury, Reese & McGee, Los Angeles, for respondents.

SHENK, Justice.

Defendant appeals from a judgment entered upon a jury verdict in favor of plaintiffs Crowe and Lowe in the sums of $8,500 and $11,000 respectively, in a personal injury action arising out of an automobile collision.

The principal error urged on appeal is that the trial court committed prejudicial error (1) in telling the jury after its proposed verdict was brought in (but before it was recorded) that the amounts awarded were 'grossly inadequate' and (2) in sending the jury back to redeliberate. Defendant asks that the original verdict (in the amounts of $2,500 and $3,000, respectively) be ordered entered in lieu of the verdict in the sums of $8,500 and $11,000, and that judgment be entered thereon.

On June 28, 1951, a 1951 Ford convertible automobile being driven southerly on Cairo Road by Mrs. Crowe collided with a 1947 Chevrolet Sedan automobile being driven easterly on Two Mile Road by defendant Sacks near Twentynine Palms, California. This is an open intersection in desert country, there was no other traffic, the morning was clear. The only obstructions to visibility were a house located on the northwest corner, set back some 150 feet from each road, and a curve and a dip deep enough to hide a car from sight on Two Mile Road about one-quarter mile west of the intersection. Mrs. Crowe, with her sister Mrs. Lowe as a passenger, was returning to her motel and intended to turn right to Two Mile Road. She looked to the left and to the right for approaching traffic at distances of 100 feet, 50 feet, and again as she entered the intersection. She saw no cars until, just as the rear end of her car clearly the north edge of the intersection, she saw the defendant's car bearing down on her from the west. His left front fender collided with her right front fender, causing her car to spin around and to catapault her and her sister to the ground. The evidence was conflicting as to defendant's speed and as to when he first observed the Ford. His car laid down 86 feet of skid marks before it came to a stop in the sand. The point of impact was about seven feet south and two and one half feet west of the center line of the intersection.

Both plaintiffs were removed by ambulance to a hospital in Twentynine Palms operated by Dr. Ince. He testified that Mrs. Lowe was found to be suffering from a concussion of the brain, shock, two fractures of the pelvis, torn ligaments in the pelvic area, a deep two inch scalp laceration, and with contusions and abrasions of the left hip, shoulder, face and entire body. Mrs. Crowe was also found to be suffering from concussion, abrasions and shock and was in considerable pain, localized in her neck. After six days the plaintiffs were released from the hospital and they returned to Glendale, where they were employed at the Behrens Memorial Hispital.

Mrs. Lowe, a woman in her early fifties, was employed as a bookkeeper at the hospital. She continued her duties at home from her bed or a wheelchair until October 1, 1951, after which she went to the hospital at least part time each day in connection with her employment. She received her full salary, $257 a month. In June 1952 it was discovered that she had a broken back with nerve involvement and that this could have been sustained as a result of the accident on June 28th. There was expert medical evidence that she would suffer with back pain for the rest of her life and that pre-existing heart and menopause conditions may have been severely aggravated by the accident. She testified that she had frequent headaches and backaches as a result of the accident and was unable to work full time.

Mrs. Crowe, a woman in her thirties, was employed as a receptionist and telephone operator at the hospital at a salary of $215 per month for a 40-hour week. Her salary was 'docked' for time not worked by her. She returned to work at the hospital on July 10th but the following morning had difficulty getting out of bed and could not move her head at all. She was hospitalized for the next few days, during which time she was taken to surgery and her neck was manipulated under anaesthetic. Thereafter her neck was placed in traction with heavy weights and a pulley attached. For the next month she had to wear a 'Nelson collar' during the day to keep her head immobile and thus relieve the pressure on her neck. For five months she had to sleep at night with traction on her neck. Dr. Johnstone testified that she had a luxation of the cervical spine, that is, an injury to the neck which manifested itself as a severe pain in the neck and in the arm; that there was a marked change in her ability to do her work and in her disposition after the accident; that from the fact that she was not completely well after two years there was serious question whether she would ever completely recover from it, and that she could not get along further without having many severe pains and was advised by the doctors to quit work.

The court instructed the jury as to all of the issues, as to the negligence of each party, proximate cause as to each party, contributory negligence as to each plaintiff, and as to the measure of damages. The jury was instructed that if it found for the plaintiffs or either of them it should award the party so entitled such amount as would compensate her reasonably for all detriment suffered by her of which it found defendant's negligence to be a proximate cause; that in arriving at the amount of the award the jury should determine each of the items of medical treatment given or reasonably certain to be required and given in the future, and the reasonable value of x-rays, nursing care, hospital and ambulance service. The instruction on special damages properly advised the jury that it should consider not only those elements of damage but 'also such sums as will compensate her reasonably for any pain, discomfort and anxiety' resulting from the injury, suffered or reasonably certain to be suffered in the future, as well as 'such sum * * * as will compensate (her) reasonably for any loss of earning power' and the effect of her injuries upon her future earning power and the present value of the loss so suffered.

After three hours of deliberation the jury returned to the courtroom. The following proceedings, upon which error is predicated, then took place:

'The Court: Have you reached a verdict?

'The Foreman: We have.'

The verdict was handed by the foreman to the bailiff, and by the latter to the judge.

'The Court: In noting this verdict, ladies and gentlemen, it appears you have determined the issue of liability in favor of the plaintiffs but I do not feel that you have adhered to the law or done your duty in so far as the amount of the verdicts are concerned in this case. I remind you that the special damages approximate the amounts which you have noted on this verdict. That means, of course, you have found there was little or no damage for pain or suffering or further loss of wages, if any. Do you desire to reconsider the verdict, if you do, the Court will return you for further consideration. How many jurors would like to reconsider this verdict?

'A Juror: I would, sir.'

A show of hands indicated a majority of the jurors would like to reconsider the verdict.

'A Juror: What was the objection?

'The Court: * * * The verdict finds in favor of the plaintiffs and each of them * * * but the amounts reported * * * are only an approximation of the special damages sustained by (them). That means, in my opinion, you are obviously compromising the issue of negligence; having found in favor of the plaintiffs on the issue of liability certainly your verdict should be commensurate with the actual damages which you have found to be suffered by the plaintiff and each of them. I think this verdict is grossly inadequate.

'A Juror: This is a compromise verdict.

'The Court: If it is a compromised item then I will return you for further deliberation.'

After the jury was returned to the juryroom the attorney for defendant cited the court's remarks as being coercion of jury, and error; that the verdict was admitted to be a compromise; and that the jury might construe the court's remarks as meaning it should reconsider the matter only on the issue of damages. The court then had the jury returned to the courtroom and instructed it to reconsider all of the issues involved, both negligence and damages, and that their determination upon either of those issues should not be based upon a compromise.

About four hours later the jury returned. The foreman replied that they had agreed upon their verdict. The clerk then read the verdict, which found in favor of plaintiff Crowe in the sum of $8,500, and in favor of plaintiff Lowe in the sum of $11,000. Upon a poll of the jury three-fourths of them replied that it was their verdict (9-3) and the verdict was then recorded. Defendant's attorney moved that the court put the amounts of the original verdict into the minutes. The court took the motion under submission, but announced orally that the amounts contained in the first proposed verdict were $2,500 and $3,000 in favor of plaintiffs. Defendant's attorney then cited the court as being in error in resubmitting the case to the jury. The following day by minute order the motion to put the amounts of the original verdict into the minutes, was...