Woodcock v. Fontana Scaffolding & Equipment Co.

• Decision Date: 24 October 1968
• Docket Number: S.F. 22605
• Court: California Supreme Court
• Parties: , 445 P.2d 881 Waldo E. WOODCOCK, Plaintiff and Respondent, v. FONTANA SCAFFOLDING AND EQUIPMENT COMPANY, Defendant and Appellant; Argonaut Insurance Company, Intervener and Respondent.

Page 217

72 Cal.Rptr. 217

69 Cal.2d 452, 445 P.2d 881

Waldo E. WOODCOCK, Plaintiff and Respondent, v. FONTANA SCAFFOLDING AND EQUIPMENT COMPANY, Defendant and Appellant Argonaut Insurance Company, Intervener and Respondent.

S.F. 22605.

Supreme Court of California In Bank.

Oct. 24, 1968.

As Modified on Denial of Rehearing Nov. 20, 1968.

Ellwood Hoskins and Cyril Viadro, San Francisco, for defendant and appellant.

Boccardo, Blum, Lull, Niland, Teerlink & Bell, David S. Lull and Edward J. Niland, San Jose, for plaintiff and respondent.

No appearance for intervener and respondent.

PETERS, Justice.

Plaintiff Waldo E. Woodcock, an employee of Barrett Construction Company, was injured on December 16, 1963, at a construction site in Palo Alto. He commenced this action for damages for personal injuries against Fontana Scaffolding and Equipment Company, alleging that it had negligently stacked a number of metal scaffold frames which had fallen on him.

Fontana Scaffolding denied all material allegations of the complaint, alleged negligence on the part of Barrett Construction Company, and claimed a setoff of the workmen's compensation benefits Woodcock had received. Argonaut Insurance Company, Barrett's workmen's compensation carrier, filed a $4,311.76 lien against any recovery under Labor Code, section 3856, and intervened to protect its claim.

The cause was tried by a jury. After instructing on the law of negligence, the trial judge explained the interest of the intervener. 'Plaintiff has received certain sums, to wit, $4,311.76 as and for workmen's compensation benefits from the Argonaut Insurance Company, which carried workmen's compensation insurance for his employer, the Barrett Construction Company. If you find a verdict in favor of the plaintiff, Waldo E. Woodcock, the Argonaut Insurance Company may or may not be entitled to reimbursement from any such verdict. If you find that plaintiff's employer, Barrett Construction Company, was negligent in providing for the safety of its employees and that such negligence was a proximate contributing cause of the injury in question to the plaintiff, then, the Argonaut Insurance Company will not be entitled to reimbursement from any such verdict.'

After completing instructions relative to the intervener's claim, the judge expounded on the proper form for the verdict. 'Now, if you determine that the plaintiff is entitled to recover against the defendant, then, you will Determine the full amount of the damages and insert in in that blank there. Do not subtract this other compensation claim. You determine the whole amount of the damages. The Court will determine the other situation.' (Italics added.)

The jury returned a verdict and special finding which recited: 'We, the jury in the above-entitled cause, find a verdict in favor of the Plaintiff, WALDO E. WOODCOCK, and against the Defendant, FONTANA SCAFFOLDING & EQUIPMENT COMPANY, a corporation, and assess the Plaintiff's damages in the sum of $13,000.00. We further find that the Plaintiff's injury was proximately contributed to by the negligence of the plaintiff's employer, BARRETT CONSTRUCTION COMPANY.' ¹

Judgment was entered in the full amount of the verdict. Woodcock moved for a new trial because of inadequate damages, and Fontana Scaffolding moved to correct the judgment under Code of Civil Procedure, sections 473 and 663, contending that $4,311.76 previously paid as workmen's compensation benefits should have been deducted from the judgment. All motions were denied, and Fontana Scaffolding appealed.

The heart of this controversy is the question whether 'damages in the sum of $13,000.00' represents the total or gross amount of damages to plaintiff or a reduced or net amount of damages after exclusion of the payments made to plaintiff by intervener. If $13,000 represents the whole amount of damages, the Woodcock's 'damages must be reduced by the amount of workmen's compensation he received' to avoid double recovery. (Witt v. Jackson, 57 Cal.2d 57, 73, 17 Cal.Rptr. 369, 366 P.2d 641; see Smith v. Trapp, 249 Cal.App.2d 929, 58 Cal.Rptr. 229; Souza v. Pratico, supra, 245 Cal.App.2d 651, 54 Cal.Rptr. 159; Harness v. Pacific Curtainwall Co., 235 Cal.App.2d 485, 45 Cal.Rptr. 454; Castro v. Fowler Equipment Co., 233 Cal.App.2d 416, 43 Cal.Rptr. 589; Conner v. Utah Constr. & Mining Co., 231 Cal.App.2d 263, 41 Cal.Rptr. 728; Dauer v. Aerojet General Corp., 224 Cal.App.2d 175, 36 Cal.rptr. 356; Tate v. Superior Court, of Los Angeles County, 213 Cal.App.2d 238, 28 Cal.Rptr. 548; Chick v. Superior Court In and For City and County of San Francisco, 209 Cal.App.2d 201, 25 Cal.Rptr. 725; City of Sacramento v. Superior Court of Sacramento County, 205 Cal.App.2d 398, 23 Cal.Rptr. 43.)

Standing alone, the verdict is ambiguous in not specifying whether the $13,000 represents the gross or net amount of damages. 'If the verdict is ambiguous the party adversely affected should request a more formal and certain verdict. Then, if the trial judge has any doubts on the subject, he may send the jury out, under proper instructions, to correct the informal or insufficient verdict.' (Fernandez v. Consolidated Fisheries, Inc., supra, 117 Cal.App.2d 254, 263, 255 P.2d 863; Phipps v. Superior Court of Alameda County, 32 Cal.App.2d 371, 374--375, 89 P.2d 698; Code Civ.Proc. § 619.) ² But where no objection is made before the jury is discharged, it falls to 'the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.' (Fernandez v. Consolidated Fisheries, Inc., supra, 117 Cal.App.2d 254, 263, 255 P.2d 863; West v. Duncan, supra, 205 Cal.App.2d 140, 142, 22 Cal.Rptr. 833.) Where the trial judge does not interpret the verdict or interprets it erroneously, an appellate court will interpret the verdict if it is possible to give a correct interpretation. (Mixon v. Riverview Hospital, supra, 254 A.C.A. 397, 408, 62 Cal.Rptr. 379; Dauenhauer v. Sullivan, supra, 215 Cal.App.2d 231, 234, 30 Cal.Rptr. 71; Weddle v. Loges, 52 Cal.App.2d 115, 118--119, 125 P.2d 914; cf. 2 Witkin, Cal. Procedure, op. cit. supra, § 92 et seq., p. 1821 et seq.) If the verdict is hopelessly ambiguous, a reversal is required, although retrial may be limited to the issue of damages. (West v. Duncan, supra, 205 Cal.App.2d 140, 144, 22 Cal.Rptr. 833; Shell v. Schmidt, supra, 126 Cal.App.2d 279, 294, 272 P.2d 83; Fernandez v. Consolidated Fisheries, Inc., supra, 117 Cal.App.2d 254, 267, 255 P.2d 863.)

By denying defendant's motion to correct the judgment and enter a new judgment, the trial judge interpreted the verdict's award of $13,000 as representing the net or reduced amount of damages after exclusion of the workmen's compensation benefits previously paid to plaintiff. This controversy is thus limited to the narrow question of whether the instructions support the trial judge's interpretation.

The few instructions which weigh in favor of the trial court's interpretation relate to damages. 'If you find in favor of the plaintiff in this action, then, in determining the amount of the award, you shall take into consideration the following items of damages, if any: The reasonable value, Not exceeding the cost to plaintiff, of the examinations, attention, and care by physicians * * * the reasonable value, Not exceeding the cost to plaintiff, of the services of nurses * * *. (T)he Loss which the evidence shows with reasonable certainty to Have been suffered by him (Woodcock) as a result of his inability, if any, to pursue these occupations as a result of his disability, * * *' (Italics added.) (Compare BAJI Nos. 174--A, 174--D (identical medical expense instructions), 174--F (similar loss of earnings instruction).)

Without reference to the other instructions, these instructions are ambiguous insofar as they may suggest that the jury should determine a net cost to plaintiff for the elements covered. ³ However, the instructions cannot be read in a vacuum. They must be read with the other instructions (Porter v. Bakersfield & Kern Elec. Ry. Co., 36 Cal.2d 582, 589, 225 P.2d 223). The other instructions make it abundantly clear that a net figure was not desired.

Initially, the court cautioned: 'Neither the allegations in the complaint as to the amount of damage plaintiff claims to have been suffered nor the prayer asking for certain compensation is to be considered by you in arriving at your verdict, except in this one respect: The amount of damages alleged in the complaint does fix a maximum limit, * * *' It then ordered: 'Now, if you determine that the plaintiff is entitled to recover against the defendant, then, you will Determine the full amount of the damages and insert it in that blank there. Do not subtract this other compensation claim. You determine the whole amount of the damages. The Court will determine the other situation.' (Italics added.) ⁴

This last instruction is most significant because it relates to the form of the verdict and the mechanics of entering a dollar amount. It clearly and without ambiguity shows that the jury was directed to enter a gross figure. When read together with this instruction, earlier references to 'cost' become comprehensible only as setting a maximum dollar limit equivalent to the total dollar amount charged for services, whether or not a larger charge might have been reasonable and justified. References to 'loss' become, in context, directives to fix the amount of injury or detriment without regard to the payment of workmen's compensation.

Moreover, it is in this basic instruction, for the first time, that the trial judge indicated to the jury that plaintiff's total damages would be reduced by the amount of workmen's compensation he had received Whether or not Barrett was found negligent. In other words, this was the first indication that plaintiff would receive a 'net' amount even if Argonaut's claim failed, and the relevation was contained in the...