Dauenhauer v. Sullivan

• Decision Date: 18 April 1963
• Citation: 215 Cal.App.2d 231,30 Cal.Rptr. 71
• Court: California Court of Appeals Court of Appeals
• Parties: Florian DAUENHAUER and Edith Dauenhauer, Plaintiffs and Appellants, v. Carl SULLIVAN, Arthur B. Siri, Inc., James Caples, and Peter Onsrud, Defendants and Respondents. Civ. 20824.

Page 71

30 Cal.Rptr. 71

215 Cal.App.2d 231

Florian DAUENHAUER and Edith Dauenhauer, Plaintiffs and Appellants, v. Carl SULLIVAN, Arthur B. Siri, Inc., James Caples, and Peter Onsrud, Defendants and Respondents.

Civ. 20824.

District Court of Appeal, First District, Division 2, California.

April 18, 1963.

Hitchcock & Coulter, Santa Rosa, for appellants.

Partridge, O'Connell, Partridge & Fall, San Francisco, for respondent Arthur B. Siri, Inc.; George Brunn, San Francisco, of counsel.

SHOEMAKER, Justice.

Plaintiffs Florian and Edith Dauenhauer brought this action against defendants Carl Sullivan, Arthur B. Siri, Inc., James Caples, and Peter Onsrud, to recover for damage to their property resulting from earth movements allegedly caused by the negligent excavation of dirt from property owned by defendants Sullivan and Onsrud. Plaintiffs prosecute this appeal from a verdict and judgment awarding them damages in the total amount of $37,000, but undertaking to assess these damages severally and in varying amounts against each defendant. Appellants' sole contention is that the evidence was such as to require the trier of fact to render a joint and several judgment holding each of the defendants liable for the entire amount of plaintiffs' damages.

The record shows that defendants Onsrud and Sullivan were the owners of real property located on a hillside adjacent to plaintiffs' property. In 1949, Sullivan began selling soil from his property, and he estimated that in the years 1949 and 1950, approximately 120,000 cubic yards of soil were removed. Subsequently, in the period from 1951-1955, Onsrud and others not named as defendants were allowed to remove an additional 15,000 yards. The final excavations authorized by Sullivan occurred in the years 1955 and 1956, when defendant Arthur B. Siri, Inc., removed approximately 18,256 yards. In addition to these excavations on the Sullivan property, defendant Onsrud removed approximately 20,000 cubic yards of soil from his own property in 1954.

In September 1957, as a direct result of the negligent manner in which each of the defendants had undertaken to remove soil from the hillside, plaintiffs' soil began to shift and their house began to crack and split apart. ¹ Florian Dauenhauer testified that the house and property had declined in value from $45,000 to $5,000 as a result of the earth movements commencing in 1957.

The jury returned a verdict for plaintiffs assessing their damages in the stated amount of $37,000, and then proceeded to allot these damages in specific amounts, as follows: Carl Sullivan, $15,000; Arthur B. Siri, Inc., $8,000; James Caples, $6,000; and Peter Onsrud, $8,000. Prior to entry of judgment pursuant to this verdict, plaintiffs moved that judgment be entered jointly and severally against all four defendants in the amount of $37,000. The court denied this motion and entered a several judgment in accordance with the verdict. Plaintiffs appeal therefrom.

Admittedly, appellants made no objection to the form of the verdict at the time it was returned and read on January 26, 1962, and the jury was discharged. However, on February 1, 1962, appellants moved that the judgment on the verdict, which had been deferred, be entered jointly and severally against all the defendants. Respondent ² urges that this motion was ineffective for any purpose and that appellants, by failing to object prior to discharge of the jury, waived their right to complain of the verdict on appeal. In support of this position, respondent relies upon Code of Civil Procedure, section 619; Brown v. Regan (1938) 10 Cal.2d 519, 75 P.2d 1063; Kirby v. Adcock (1953) 116 Cal.App.2d 570, 253 P.2d 700; and Portman v. Keegan (1939) 31 Cal.App.2d 30, 87 P.2d 400.

Code of Civil Procedure, section 619, provides that a verdict which 'is informal or insufficient in not covering the issue submitted' may be corrected by the jury under the advice of the court or the jury may be again sent out. In the Brown case, supra, the jury returned a verdict against one codefendant (the owner of the car responsible, for the accident) in the amount of $5,000, and against the other (the driver of the car) in the amount of 'Nothing Dollars.' When the plaintiff sought to have the jury clarify its verdict, defendant-owner objected vigorously and persuaded the court to file the verdict as rendered. On appeal, the court concluded that defendant-owner had waived his right to question the verdict. The court pointed out that to hold otherwise would be to allow the defendant to reap a technical advantage by virtue of having allowed the erroneous verdict to stand as originally returned by the jury. In the instant case, there is clearly no indication of such litigious strategy. In the Kirby case, supra, the jury returned a verdict assessing general damages at $500 and exemplary damages at $1,500. A poll of the jury revealed that the exemplary damages had been agreed to by only eight jurors. The court accepted the $500 verdict, and discharged the jury. On appeal, the court held that the reference to exemplary damages had properly been disregarded as surplusage and that, in any event, the defendant had waived any defect in the verdict by failing to object before the jury was discharged. In the Portman case, supra, the jury failed to find on any of the issues raised by the complaint and adjudicated only those issues raised by the cross-complaint and answer thereto. On appeal, the court stated that plaintiffs should have objected to the insufficiency of the verdict, but the main problem was the failure of the jury to find on any of the issues raised by the complaint, which necessitated a reversal so that the plaintiffs could have these issues heard and determined.

None of these cases are applicable to the instant appeal. The verdict awarding plaintiffs damages in the total amount of $37,000 was in itself sufficient to constitute a complete verdict, and the additional language apportioning damages among the several defendants was mere surplusage which could be disregarded by the trial court at the time of entry of judgment. This rule has been set forth in several California cases. In Weddle v. Loges (1942) 52 Cal.App.2d 115, 125 P.2d 914, the jury returned a verdict in the plaintiff's favor in the amount of $5,000, but undertook to assess $4,250 of this sum against one defendant, and $750 against the other. Although no request was made by any of the parties to have the jury correct or amend its verdict, the trial court entered a joint and several judgment in the amount of $5,000 against both defendants. The trial court subsequently reconsidered its decision and granted a new trial on the ground that the verdict had attempted to apportion damages. On appeal, the court reversed the order granting a new trial and held that the trial court had acted correctly in entering a joint and several judgment against both defendants. In so holding, the court stated: 'In the present case the members of the jury made it certain and definite that upon the issues presented they found for the plaintiff, fixing damages to which he was entitled in the sum of $5,000; their effort to assess a greater amount against one defendant than another may be treated as mere surplusage.' (P. 119, 125 P.2d p. 916.) In Phipps v. Superior Court (1939) 32 Cal.App.2d 371, 89 P.2d 698, the jury returned separate verdicts against each of the two defendants in the amount of $2,500. After judgment had been entered, defendants moved for a nunc pro tunc order correcting the judgment so as to assess a total amount of $2,500 against both defendants. The appellate court upheld this order despite the fact that the jury had been discharged without objection by either party. In so holding, the court pointed out that...