Remy v. Exley Produce Exp., Inc., 17096

Citation307 P.2d 65,148 Cal.App.2d 550
Decision Date19 February 1957
Docket NumberNo. 17096,17096
CourtCalifornia Court of Appeals
PartiesAllen REMY, Plaintiff, v. EXLEY PRODUCE EXPRESS, Inc., et al., Defendants. EXLEY PRODUCE EXPRESS, Inc., a corporation, Cross-Complainant and Respondent, v. PACIFIC FINANCE CORPORATION, Cross-Defendant and Appellant.

Partridge, O'Connell & whitney, Robert G. Partridge, Jr., San Francisco, for appellants.

William A. Kurlander, Anthony J. Calabro, Leslie G. MacGowan, San Francisco, for respondent.

BRAY, Justice.

Defendant and cross-defendant Pacific Finance Corporation appeals from a judgment, after jury verdict, in favor of cross-complainant Exley Produce Express, Inc.

Questions Presented.

1. The main question presented is whether the verdict and judgment are inconsistent with a simultaneous verdict and judgment in favor of plaintiff and against both Pacific Finance and Exley.

2. Has defendant waived his right to claim inconsistency?

3. Should the judgment in favor of plaintiff be reversed?

Record.

The action arises out of a collision between a truck and trailer belonging to plaintiff and a truck and trailer belonging to Exley. Also involved as an alleged contributing factor to the accident are a Dodge and a Crosley automobile belonging to Pacific Finance, and being operated by Smith, a partner of B & B Auto Sales, with the permission of, and under contract with Pacific Finance. Plaintiff sued Exley, Pacific Finance and B & B for damages to his truck. Exley then cross-complained, for damages to its truck, against plaintiff, Pacific Finance and B & B. 1 Motion by plaintiff for nonsuit on the cross-complaint was granted. No appeal was taken. The verdict and judgment on plaintiff's complaint were in favor of plaintiff and against Exley, B & B and Pacific Finance in the sum of $3,872. Motions for new trial thereon were granted as to B & B and Pacific Finance for insufficiency of evidence. No appeal was taken, so that the judgment now stands solely against Exley. The verdict and judgment on the cross-complaint were in favor of Exley and against B & B and Pacific Finance. The motion for new trial of B & B thereon was granted for insufficiency of the evidence. No appeal was taken so that judgment now stands solely against Pacific Finance, which appeals therefrom. 2

Evidence.

As will appear, it is unnecessary to give the evidence in detail. The accident took place after midnight in the snow area on highway 99. Shortly before, Smith was driving northerly the Dodge, and towing the Crosley. At a curve in the road which went through a cut where the snow was banked on both sides of the road, the two cars slipped to the left side, ending up in the snow bank there. The evidence was conflicting as to whether the Dodge had chains and as to the distance the two cars projected into the southbound lane. (The distance between the two snow banks was 20-24 feet. There were two paved lanes.) Smith and a companion, after being unsuccessful in removing the cars from the snow bank, went for help. The evidence is conflicting as to whether there were any lights lighted on the cars. Plaintiff's truck and trailer was proceeding northerly in its right lane. The Exley truck was proceeding southerly in its right lane, when suddenly it crossed the center line, side-swiping plaintiff's equipment about opposite the Dodge and Crosley. The Exley driver died before trial so his version of the accident could not be obtained. The evidence was such that the jury could have reached any one of three conclusions: (1) That the accident was the result of the combined negligence of the operator of the parked cars and the Exley truck. This apparently was the view of the jury, although the trial court in granting as against plaintiff new trials to the owner and the operator of the cars apparently considered that the parked cars did not contribute proximately to the accident. (2) That the parked cars were without lights and in such position as to force the Exley truck, in order to avoid hitting them, to hit plaintiff's truck; that Exley, thereby put in imminent peril, was not negligent, and that the sole cause of the accident was the negligence of the operator of the two cars. Evidenctly the jury did not so conclude, nor did the trial court in granting new trials. (3) That the sole cause of the accident was the negligence of the Exley truck. Apparently the jury did not so find, although the court did.

1. Inconsistency.

This, then, brings us to the question of whether the verdicts and judgments were inconsistent, one with the other. Plaintiff's verdict and judgment were against both the parked cars and the Exley truck. 3 Thus, there was an implied finding that both were negligent. But the jury rendered a verdict in favor of the Exley truck as against the parked cars, thereby impliedly finding that while the Exley truck, whose damage was due to its collision with plaintiff's truck, was negligent as against plaintiff's truck, it was not negligent as against the parked cars. Put another way, the jury impliedly found that when the Exley truck collided with plaintiff's truck, the cause so far as the injury to plaintiff's truck was concerned was the joint negligence of the parked cars and the Exley truck, and yet that the damage to the Exley truck in that same collision was solely caused by the negligence of the parked cars. 4

Exley contends that there can be a difference between the duty of due care which a person owes a third person and the one he owes himself. Thus, says Exley, its driver could have violated the duty of due care owed plaintiff, and yet at the very same instant have been exercising due care as to himself. 'The jury could have concluded that, in choosing his course of escape by attempting to avoid the parked cars, the Exley driver unreasonably transferred his loss to Allen Remy.' The fallacy of this argument is that when a person, through no fault of his own, is put in imminent peril by another and has the choice of two alternatives, and chooses the one which later proves to have been the poorer one,--if his choice was a reasonable one in the then light of the circumstances, he is not held negligent for not having taken the better course. The entire fault of the accident is laid to the one whose negligence placed him in peril. But if, as Exley contends its driver did here, he 'unreasonably transferred his loss' and is himself injured, he is guilty of negligence proximately contributing to his injury. How a person in one act can be unreasonable and at the same time reasonable, or negligent and nonnegligent, is difficult to understand. This would bar Exley from recovering damages for an injury which would not have happened but for his own negligence contributing proximately to the injury with the negligence of the parked cars. See Tubbs v. Stone & Webster Const. Co., 30 Cal.App. 705, 709, 159 P. 242. Counsel have cited no case, and we have found none, holding that in an accident where a person is negligent as to another person, and is thereby injured, he can avoid the effect of that negligence in a claim against a third person who also was negligent. It is clear that the two verdicts and judgments, finding as they impliedly do, that Exley in one act was both negligent and not negligent, are inconsistent and that the judgment appealed from cannot stand.

2. Waiver.

Section 619, Code of Civil Procedure, provides: 'When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out.' (Emphasis added.) Based upon the language of this section, Exley contends that Pacific Finance should have called the attention of the trial court to the alleged inconsistency of the verdicts at the time they were rendered with the request that they be corrected, and having failed to do so, it has waived its right to object to the verdict on appeal. However, the verdicts were neither 'informal [n]or insufficient, in not covering the issue submitted * * *' The verdicts here at of the type referred to in the following language in Reed Orchard Co. v. Superior Court, 19 Cal.App. 648, 663, 128 P. 9, 17, 18: 'It is readily admitted that the verdict may be so defective as to be subject to subsequent attack, although no objection be made at the time it is rendered, but the situation here is of a very different nature.' In Mish v. Brockus, 97 Cal.App.2d 770, 218 P.2d 849, the reviewing court, in effect, held that the trial court should have required the jury to reconsider their verdicts which were 'inconsistent and, when considered together, the intent of the jury is not ascertainable * * *' However, there, the losing party had requested at the time of rendition that the verdicts be corrected. Moreover, the situation was one in which the jury, after finding for the plaintiffs, had failed insert any sum in the assessment of damages clause. Again, in...

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