Leipert v. Honold

• Decision Date: 13 August 1952
• Citation: 247 P.2d 324,39 Cal.2d 462,29 A.L.R.2d 1185
• Court: California Supreme Court
• Parties: , 29 A.L.R.2d 1185 LEIPERT et al. v. HONOLD et al. L. A. 21850.

Page 324

247 P.2d 324

39 Cal.2d 462, 29 A.L.R.2d 1185

LEIPERT et al. v. HONOLD et al.

L. A. 21850.

Supreme Court of California, in Bank.

Aug. 13, 1952.

Forgy, Reinhaus & Forgy, Arthur M. Bradley and S. M. Reinhaus, Santa Ana, for appellants.

Harvey, Rimel & Johnston and Fred D. Johnston, Santa Ana, for respondents.

TRAYNOR, Justice.

On March 13, 1948, at about 11 P.M., two automobiles loaded with teen-age children were travelling west along U. S. Highway 101 near Newport Beach. The one in front was driven by Clifton Edwards. The other one, in which plaintiff Denny Leipert, 15, was riding, was driven by Phillip Duff, 18, whose parents owned it. It was a dark night, and it had sprinkled about an hour and a half before the accident. A defect in the steering apparatus caused Duff to lose control of the car, so that it swerved to the left across the highway. It was struck by a car driven in the opposite direction by defendant Woodrow John Honold. Plaintiff Denny Leipert and one other occupant of the Duff car were injured; the other five children, including the driver, were killed. Honold and his only passenger, Eleanor Brady, who is now his wife, were injured.

Denny brought this action through Charles J. Leipert, his father and guardian ad litem, alleging negligence on the part of Woodrow John Honold. Denny's father also sued on his own behalf for reimbursement of medical expenses. Bernard M. Honold and George B. Honold, doing business as Honold Brothers Mortuary, were joined as defendants; they owned the car driven by Woodrow John Honold and had consented to his using it on this occasion. The case was consolidated for trial with four wrongful death actions brought against the same defendants by the parents of the children who were killed.

The evidence was sharply conflicting. Denny testified that the Duff car was travelling about 40 miles per hour; that the driver said there was something wrong with the steering apparatus; that shortly thereafter 'the wheels started acting funny, they started shimmying;' that 'the car jerked across the road, and we came to a stop;' that 'Our front wheels were away off the road and we were just about off the road;' that the driver 'put on the brakes quick;' that the driver 'opened his door and put one foot out and looked over the top of the hood of the car;' that the driver 'got out and then got back in again, and then he said, 'Some of you kids get out of the car,' so he was going to try and back it up on the side of the road and see what was wrong, and he told me to 'get out' and I got the door open about six inches and I guess that's when it happened;' and that he was knocked unconscious. He testified that he estimated that the Duff car had stopped about 13 seconds before it was struck. In answer to the question how he arrived at this figure he replied: 'Well, I went down to the scene of the accident and I had somebody get behind me with a watch, and I went through the actions that the car did when it stopped, and what we did, and then I told the person in back of me, 'That was about when the car hit,' and it was about thirteen seconds.' He testified that just before the Duff car got out of control, the Edwards car was from 20 to 35 yards ahead; that the brakes were not applied when the car started shimmying; that as it went across the highway 'it didn't skid, it just tipped and was making a squealing sound;' that 'it sounded like when you go around a corner too fast with a car, it will sort of squeal.' He testified that he did not see the Honold car before the collision.

Defendant Woodrow John Honold testified that he first saw the Edwards and Duff cars when they were about 200 to 250 yards away; that he passed the first car and at the same moment the other car swung over; that it first came across at an angle and then sharply turned across the road; that he was 100 to 125 feet away from it when it started across; that its lights flashed in his eyes; that it was moving rapidly; that he was traveling from 40 to 50 miles an hour; that as the Duff car turned in front of him he tightened his grip on the wheel and turned to the right; that he did not put on his brakes; and that the other car was moving when the two cars collided.

The only other eye-witness to the accident was Jim Oakes, a boy who was riding in the rear seat of the Edwards car. He testified that he looked back and saw the Honold car hit the Duff car; that 'the Duff car was at right angles with the road, as I looked back, I just got a glimpse of the lights of the Honold car on it, and then they hit and it kind of lifted the car up;' and that when he looked back the Edwards car was about 900 feet from the point of collision. No one in the Edwards car heard the collision.

A sergeant of the Newport Beach Police Department and an officer of the California Highway Patrol testified that at no point in the vicinity of either car were there any skid marks.

Lieutenant Smith, a traffic officer, was called as an expert by plaintiffs. On direct examination he was asked if he had formed an opinion as to whether or not the Duff car 'was moving at the moment of impact.' He replied that he had, but defendants' objection to his giving his opinion was sustained. He gave his opinion that the Honold car was traveling in excess of 45 miles an hour, but defendants' objection to his giving his opinion as to the 'minimum or maxium' speed of the Duff car was sustained. He gave his opinion on cross-examination that a car traveling 40 to 50 miles an hour under road conditions like those in the present case, could not be stopped within a hundred feet without the application of brakes.

The jury returned verdicts in favor of the plaintiffs in all five actions. In the Leipert case, Denny was awarded damages of $500 against all three defendants jointly and, in addition, $700 against Woodrow John Honold alone; Denny's father was awarded $1,000 against all three defendants jointly.

Defendants' motion for a new trial was denied. The Leiperts' motion for a new trial on the issue of damages only was granted as to Denny and denied as to his father. The trial court's order stated that 'the said motion for a new trial is granted upon the ground of insufficiency of the evidence to justify the verdict in that the amount awarded by the jury is not in conformity with the evidence adduced at the trial and is inadequate though not so far inadequate as to indicate passion or prejudice.' Defendants have appealed from the judgment and from the order granting Denny a partial new trial. No appeals were taken in the other four actions.

The power of a trial or appellate court to order a new trial on fewer than all the issues is generally recognized, see 66 C.J.S., New Trial, § 11, page 87; 39 Am.Jur., New Trial, § 21, p. 44; 98 A.L.R. 941, and is authorized by statute in this state. (Code Civ.Proc. §§ 657, 662.)

The purpose of limited retrials is to expedite the administration of justice by avoiding costly repetition. Such retrials should be granted, however, only if it is clear that no injustice will result. Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 499, 51 S.Ct. 513, 75 L.Ed. 1188; see 66 C.J.S., New Trial, § 11, page 88. Some courts have expressed reluctance to limit new trials in negligence cases, suggesting that only rarely is such a step proper. Simmons v. Fish, 210 Mass. 563, 570, 97 N.E. 102; Murray v. Krenz, 94 Conn. 503, 508, 109 A. 859. Even in California, where new trials limited to the issue of damages have frequently been approved in personal injury and wrongful death actions, it has been held that a request for such a trial should be considered with the utmost caution. Donnatin v. Union Hardware & Metal Co., 38 Cal.App. 8, 11, 175 P. 26, 177 P. 845; Bencich v. Market Street Ry., 20 Cal.App.2d 518, 528, 67 P.2d 398, and that any doubts should be resolved in favor of granting a complete new trial. Keogh v. Maulding, 52 Cal.App.2d 17, 21, 125 P.2d 858.

The decision on limiting the new trial appropriately rests in the discretion of the trial judge. It is presumed that in passing upon the motion he has weighed the evidence and the possibility of prejudice to the defendant. His decision will not be reversed on appeal unless an abuse of discretion is shown. Tumelty v. Peerless Stages, 96 Cal.App. 530, 532, 274 P. 430; Amore v. Di Resta, 125 Cal.App. 410, 413, 13 P.2d 986; Sanford v. Wilcox, 13 Cal.App.2d 193, 194, 56 P.2d 548; Tripcevich v. Compton, 25 Cal.App.2d 188, 191, 77 P.2d 286; Hoffart v. Southern Pacific Co., 33 Cal.App.2d 591, 602, 92 P.2d 436; Cox v. Tyrone Power Enterprises, Inc., 49 Cal.App.2d 383, 390, 121 P.2d 829; Adams v. Hildebrand, 51 Cal.App.2d 117, 118, 124 P.2d 80; Hughes v. Schwartz, 51 Cal.App.2d 362, 364-365, 124 P.2d 886; Tornell v. Munson, 80 Cal.App.2d 123, 124, 181 P.2d 112.

Such an abuse is shown when the damages are inadequate, the record discloses that the issue of liability is close, and other circumstances indicate that the verdict was probably the result of prejudice, sympathy, or compromise or that for some other reason the liability issue has not actually been determined.

There can be no doubt that the damages awarded plaintiff Denny Leipert were inadequate. Forty or fifty stitches were required to close the lacerations of his scalp and forehead, which will remain partially scarred. His pelvis was broken in two places; one fracture was complete. There was a definite shock of the brain and nervous system controlling the eyes. He also suffered a rupture of the bladder, which necessitated an abdominal operation that left a considerable amount of scar tissue in and around the bladder. He was confined in the hospital for about three weeks and was then removed to his home, where he remained in bed another six or seven weeks. Several weeks after he returned home he suffered a low-grade bladder infection, which was probably a result of his injuries. Approximately five months elapsed...