Fransen v. Washington

• Decision Date: 10 September 1964
• Citation: 40 Cal.Rptr. 458,229 Cal.App.2d 570,116 P.2d 611
• Court: California Court of Appeals Court of Appeals
• Parties: Charles M. FRANSEN and John R. Sebok, Plaintiffs and Respondents, v. Wallace A. WASHINGTON, Defendant and Appellant. Civ. 21488.

Page 458

40 Cal.Rptr. 458

229 Cal.App.2d 570

Charles M. FRANSEN and John R. Sebok, Plaintiffs and Respondents, v. Wallace A. WASHINGTON, Defendant and Appellant.

Civ. 21488.

District Court of Appeal, First District, Division 1, California.

Sept. 10, 1964.

Bronson, Bronson & McKinnon, San Francisco, for appellant.

Shirley, Saroyan, Cartwright & Peterson, San Francisco, for respondents.

MOLINARI, Justice.

Defendant, Wallace Washington (hereinafter referred to as Washington), appeals from a judgment after a jury verdict against himself and defendant Effie B. Evans (hereinafter referred to as Evans), and in favor of plaintiffs, Charles M. Fransen and John R. Sebok (hereinafter referred to as Fransen and Sebok respectively), for personal injury damages sustained by plaintiffs when a vehicle, owned by Washington and driven by Evans, collided with a vehicle driven by Fransen and in which Sebok was a passenger. The sole question presented is whether the trial court committed prejudicial error in refusing to submit to the jury a form of verdict to the effect that they could find in Washington's favor alone and against plaintiffs. We have concluded that, although the trial court should have submitted a verdict in this form, no prejudicial error resulted because the verdict returned by the jury, in the light of the entire record, was responsive to the pleadings, the evidence and the trial court's instructions.

The instant case proceeded to trial against Washington on the issues of negligence, proximate cause, damages, imputed negligence and permissive use, and against Evans as to the amount of damages to be assessed, her default for not answering the complaint having been entered. Washington does not contend that the evidence was insufficient to establish that Evans was negligent, nor does he assert that the damages awarded are excessive. It is his contention that the evidence was such that the jury could have found he was not liable because Evans was driving without his permission, and that the absence of a form of verdict absolving him individually denied him his right to have the jury pass upon the issue in the case relating to his liability. A review of the record discloses that the jury would have been justified in finding for Washington on the issue of permissive use upon his testimony that Evans had never driven the car but merely steered it on one occasion while he was operating it; that the subject of permitting her to use his automobile had never been discussed between them; that on the night of the accident he had fallen asleep in Evans' apartment; that she took the keys to his car from his coat pocket and left without asking or receiving permission to use the car; that he was not aware she was going out that night; and that he did not know she had taken the car until after the accident. ¹

Upon the conclusion of its charge to the jury the trial court stated as follows: 'The clerk has prepared a number of forms of verdict which cover any possible form of verdict which you may arrive at in this case * * *.' The court then read, in sequence, the 8 separate forms of verdict which we set out in the footnote. ² Upon completion of the reading of these forms the trial court stated: 'Those are the forms of any possible verdict to which you can agree in this case.'

It is apparent that no forms of verdict were supplied the jury to apply in a situation where they found in favor of Washington alone as against plaintiffs, although such forms were submitted with respect to Evans. ³

The general rule is that verdict forms should be worded in such a manner that the jury may make its verdict conform to any one of the possible conclusions at which they may arrive. (Crain v. Sumida, 59 Cal.App.2d 590, 592, 211 P. 479.) Defects in the form of a verdict may render it informal or insufficient. (Crowe v. Sacks, 44 Cal.2d 590, 596, 283 P.2d 689; Estate of Woehr, 166 Cal.App.2d 4, 12, 332 P.2d 818.) If the form of a verdict is defective the complaining party must object in the lower court, since the failure to so object results in a waiver of any defect of form. (Hercules Powder Co. v. Automatic Sprinkler Corp., 151 Cal.App.2d 387, 401, 311 P.2d 907; Lynch v. Birdwell, 44 Cal.2d 839, 851, 285 P.2d 919; County of Humboldt v. Shelly, 220 Cal.App.2d 194, 200, 33 Cal.Rptr. 758.) ⁴ It is also the rule that in construing a verdict reference may be made to the pleadings, the evidence and the court's instructions. (Fairfield v. Hamilton, 206 Cal.App.2d 594, 605, 24 Cal.Rptr. 73; Snodgrass v. Hand, 220 Cal. 446, 448-449, 31 P.2d 198; Irelan-Yuba Gold Quartz Min. Co. v. Pacific G. & E. Co., 18 Cal.2d 557, 570, 116 P.2d 611.) As was stated in Crain: 'In determining the sufficiency of the verdict the entire record should be searched, and all the parts interpreted together, so that if possible a deficiency in one place may be cured by what appears in another.' (P. 593 of 59 Cal.App., p. 480 of 211 P.) Accordingly, it is the rule that all reasonable inferences will be indulged in on appeal to support, rather than defeat, a jury's verdict and the judgment rendered thereon. (Fairfield v. Hamilton, supra, 206 Cal.App.2d, p. 605, 24 Cal.Rptr. 73; Snodgrass v. Hand, supra, 220 Cal. p. 449, 31 P.2d 198.)

In the case at bench the trial court erred in refusing to submit a form of verdict which would have exonerated Washington alone. Under the evidence, the jury could have found that Evans was liable but Washington was not. The error, however, was not prejudicial. The forms of verdict adopted by the jury clearly show that they intended to hold both Washington and Evans liable to each of the plaintiffs. ⁵ From the use of these forms it is obvious that they did not intend to exonerate either Washington or Evans. This conclusion is fully justified by the record considered in the light of the pleadings, ⁶ the evidence hereinbefore summarized, and the court's instructions, and accords with the rule that verdicts are to receive, if possible, such a construction as will uphold rather than defeat them.

The trial court gave several instructions bearing upon the issues of negligence and proximate cause, and then gave the following instruction: 'The defendant Effie Evans did not answer the Complaint within the time allowed by law in this case and her default has been duly entered. Accordingly the only issue as to his defendant is the amount of damages, if any, which should be awarded against her in accordance with the rules as to damages which I shall hereafter give you, for any injury or detriment proximately caused by her negligence.' Following this instruction the court then instructed as follows: 'Although the defendant Wallace A. Washington was the owner of the vehicle that was being used by the defendant Effie B. Evans, and which was involved in the accident in question, said owner denies that the vehicle was then being used with his permission. Thus, one of the issues that you must determine is this question of permission. If you find that at the time of the accident defendant, Effie B. Evans did not have the permission of the defendant Wallace A. Washington to use the vehicle, then the defendant Wallace A. Washington is entitled to a verdict in his favor, regardless of what your decision may be as to the other defendant. But if you find that the vehicle used by the defendant Effie B. Evans was being used with the permission, express or implied, of the defendant Wallace A. Washington, then if the defendant Effie B. Evans is liable, so is the defendant Wallace A. Washington.' (Emphasis added.) It is clear from these instructions that the jury was apprised it could find in favor of Washington, even though they found against Evans, if it found that she did not have his permission to use the vehicle. It is highly improbable that the jury would ignore this instruction respecting the vital issue of permissive use in view of the account put upon it in the opening statements of counsel for both parties, ⁷ and the evidence adduced with respect thereto.

Washington argues that the trial court's instructions had the effect of compounding the error rather than curing it. He asserts that the court's instructions eliminated the issues as to whether Evans was negligent and whether her negligence was the proximate cause of the accident and plaintiffs' injuries. ⁸ While it is true that the trial court instructed that the only issue as to Evans was the amount of damages, this instruction did not eliminate the issue of Evans' negligence and proximate cause insofar as Washington was concerned. These issues were tendered by his pleadings and considerable evidence was adduced at the trial on the issue of Evans' negligence. Under the posture in which the case was tried, and the court's instructions, there can be no doubt that the jury understood that it could find against Washington only if it found that Evans was negligent, that her negligence was a proximate cause of the accident, and that she was driving the vehicle with Washington's consent and permission. The jury was specifically instructed as follows: 'The law provides that when the owner of a motor vehicle expressly or impliedly gives his permission to another to use the vehicle, any negligence on the part of the person so using it shall be imputed to the owner for all purposes of civil damages.' The trial court defined negligence and proximate cause and further instructed the jury that 'The question in this case for you to determine before any liability can be fastened upon the defendant is the question of negligence; and this question you are to resolve upon a consideration of all the facts and evidence in the case.'

We are further persuaded in our conclusion that the jury was not confused or misled by the fact that the court gave the following instruction: 'Although there are two defendants in this action, it does not follow from that fact alone that if one is liable, both are liable. Each is...