Opinion
No. 16217
3-2-1955
Eula Mae SINGLETON, Plaintiff and Respondent, v. Manuel Smith PERRY, as Administrator with the Will Annexed of the Estate of S. W. Corlett, deceased, substituted in the place and stead of S. W. Corlett, deceased, Defendant and Appellant.
Theodore M. Monell, William Klein, San Francisco, for appellant. Pierre J. Ibos, James A. Himmel, San Francisco, for respondent.
Eula Mae SINGLETON, Plaintiff and Respondent,
v.
Manuel Smith PERRY, as Administrator with the Will Annexed of the Estate of S. W. Corlett, deceased, substituted in the place and stead of S. W. Corlett, deceased, Defendant and Appellant.
March 2, 1955.
As Corrected on Denial of Rehearing April 1, 1955.
Hearing Granted April 27, 1955. *
Theodore M. Monell, William Klein, San Francisco, for appellant.
Pierre J. Ibos, James A. Himmel, San Francisco, for respondent.
BRAY, Justice.
Two actions filed the same day were tried together. Each action contained two counts, and in the prayer asked for $100,000 damages. The first count of the first action (the one in which this appeal was taken) was for malicious prosecution of plaintiff by the original defendant, now deceased, 1 for alleged violation of section 503, Vehicle Code (felonious theft of a Cadillac automobile). The second count was for false arrest upon the same charge. The complaint in the second action in the first count charged malicious prosecution for alleged grand theft of three diamond rings, two portable radios, two sets of silver, one smoking stand, one pistol and five pieces of luggage. 2 The second count charged false arrest upon the same charge. There were separate pleadings, causes of action, verdicts and judgments in the two actions. In the first case plaintiff was awarded $10,000 actual damages and $15,000 punitive or exemplary damages. In the second case judgment went for defendant, from which no appeal was taken. In the first case defendant appealed from the judgment, from the order denying his motion for judgment notwithstanding the verdict, and from the order denying his motion for new trial. (The latter order is not separably appealable and the purported appeal therefrom should be dismissed.)
Questions Presented.
1. In actions tried together but with separate pleadings, causes of action, verdicts and judgments, may the verdict in the second action be considered on the appeal in the first action to determine if the verdicts are inconsistent?
2. Is plaintiff entitled to damages?
3. Alleged error in instructions.
Facts.
Inasmuch as no contention is made that the evidence is insufficient to justify the verdict (except on the question of damages), a bare outline of the facts as apparently found by the jury will be given.
Plaintiff and defendant, without benefit of clergy, had been living together and holding themselves out as husband and wife. Defendant gave plaintiff many presents. In 1949 defendant presented plaintiff with a Buick convertible. In 1952 plaintiff traded it in on a Cadillac, paying additionally $500 in cash from moneys given her by defendant. The balance of the cost of the car was financed through a bank. Because of defendant's anger over the purchase of the car, plaintiff drove to Los Angeles. This was about the time the first installment payment on the car fell due. Plaintiff did not notify the bank she could not meet the payment. While she was in Los Angeles defendant went to the bank, paid the balance owing in full and had the new 'pink slip' issued in his name. Defendant then went to Los Angeles and persuaded plaintiff 'to come back home.' It is not clear whether defendant took the car away from her when he first came to Los Angeles to see her. At any rate she had possession of it from then on. They made a trip to Reno together. Returning to San Francisco, they continued to live together although 'we argued and we squabbled and fought.' One Sunday, while plaintiff was absent from the house, defendant was taken ill to the hospital. The next day, after a row with defendant at the hospital, plaintiff left for Cleveland in the automobile. Defendant, claiming that plaintiff had stolen the automobile and the personalty, contacted his attorney, reported the alleged thefts to a police inspector and to a deputy district attorney. Defendant swore to a complaint charging plaintiff with theft of the automobile and later a separate one charging her with theft of the personalty. She was arrested thereon in Cleveland, extradited and brought to San Francisco in police custody. On her preliminary examination in the municipal court, both actions were dismissed and she was discharged. She had been in custody approximately 35 days.
1. Only One Case before Us.
While defendant contends that the verdicts in the two cases are inconsistent, his real contention is that the effect of the finding for defendant in the second case was a finding that defendant had probable cause for causing plaintiff's arrest on the personal property theft charge, and as her detention thereon was simultaneous with her detention on the automobile theft charge which the jury, in effect, found was improperly brought, she could not suffer any damage from the latter detention as she was in jail anyhow on the second charge. As the circumstances relating to the possession of the automobile by plaintiff were different from those relating to her possession of the personalty and therefore there would be no inconsistency in the verdicts, the effect of the verdict in the second case is not before us.
We must look at the situation in the trial court. At the outset of the trial it was agreed that 'these two cases be consolidated and be tried as one.' Actually there was no true consolidation as they had separate verdicts and separate judgments. 'The term 'consolidation' is used in three different senses. First, where several actions are combined into one and lose their separate identity and become a single action in which a single judgment is rendered; second, where all except one of several actions are stayed until one is tried, in which case the judgment in the one is conclusive as to the others; third, where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment.' 1 C.J.S., Actions, § 107, p. 1341. This third is the sense in which the actions were 'consolidated' here. As said in National Union Fire Ins. Co. v. Chesapeake & O. Ry. Co., D.C., 4 F.Supp. 25, in the strict sense of the word there can be no consolidation of two or more cases unless they can be merged and combined into one. In the procedure adopted in our case, 'each case retains its identity and distinctive characteristics in all other matters except the one of joint trial.' 1 C.J.S., Actions, § 107, p. 1342.
'The only effect of an order providing that several actions shall be tried together is to consolidate the cases for the purpose of trial; it does not merge the several actions into one; each case retains its distinctive characteristics and remains separage in respect of docket entries, depositions previously taken in one cause, verdicts, findings, judgments, proceedings to obtain an appellate review, and all other matters except the one of joint trial; and if there is error in one case only, it is fatal to the judgment in that case only. Likewise, the trial of two or more cases together by consent of all the parties does not merge the cases into one.' 64 C.J., Trial, § 7, p. 37; 88 C.J.S., Trial, § 6.
In Hutchings v. Post, 90 Cal.App. 382, 265 P. 968, the plaintiff sued to foreclose a mechanic's lien. The defendant counter-claimed for damages for failure to complete the work according to contract. The plaintiff then commenced an independent action upon a promissory note given by the defendant as part payment on the contract. The defendant counter-claimed asking that the note be cancelled. '* * * the parties stipulated that the two [actions] might be tried at the same time and upon the same evidence. This was done, and separate findings and judgments were entered.' 90 Cal.App. at page 383, 265 P. at page 968. In the first action, the trial court found that the plaintiff had failed to complete the contract as agreed and gave the defendant judgment for $128.33. In the second action it gave the defendant judgment for costs. The plaintiff appealed from both judgments. In her answer in the first action the defendant had claimed an offset of $216 on account of work undone. In her answer in the second action she claimed $446 on the same account. 'It is now argued that defendant was bound by the first pleading and that the trial court erred in allowing her an offset in the full sum of $446.' 90 Cal.App. at page 383, 265 P. at page 968. To this contention the reviewing court held, 90 Cal.App. at pages 383-384, 265 P. at page 968: 'The actions were not consolidated for trial, but were merely tried at the same time upon separate pleadings. In the first action damages were claimed for the delay, and the judgment was well within the sum prayed for.'
In McNett v. Volfi, 1928, 205 Cal. 89, 269 P. 932, the complaint contained two causes of action, one for damages for alleged personal injuries and the other for alleged damage to the plaintiff's automobile. The jury rendered a verdict for the plaintiff for $5,000 on the first cause of action. Upon the second cause of action it rendered a verdict in favor of the defendant. On appeal the defendant contended the verdict against him was void for inconsistency. It was held that while the plaintiff probably had grounds for complaint because of the finding upon the second cause of action, the defendant had no such grounds.
As our two cases were merely tried together, and as the first case retained its distinctive characteristics, we are not concerned with what happened in the other case.
2. Damages.
True, the evidence showed that at the same time that plaintiff was arrested upon the auto theft charge, she was likewise arrested on the other charge. But we are only concerned here with the question of whether the evidence supports the finding of the jury that in bringing the automobile theft charge defendant was guilty of malicious prosecution or false arrest and if so, whether the evidence supports the damages awarded. Whether plaintiff was properly or improperly in detention on another charge is immaterial.
Counsel and this court have found but two cases dealing with this precise question. In Doherty v. Munson, 1879, 127 Mass. 495, the defendant was a 'trial justice' who had committed the plaintiff to confinement in the house of correction on two warrants for conviction of two separate crimes. The sentence of the magistrate upon one of these convictions was erroneous. The plaintiff brought action for false imprisonment against the magistrate. It was held that, as the plaintiff during the whole time of his imprisonment was legally held upon the other conviction, 'The fact that the master of the house of correction also held another warrant, which was illegal, did not affect the character of his [the plaintiff's] imprisonment, and he sustained no damage thereby.' 127 Mass at page 496. For his imprisonment on the illegal warrant the plaintiff was allowed only nominal damages, in the sum of $1. In Boogher v. Bryant, 1885, 86 Mo. 42, the defendant had caused the plaintiff's arrest on five counts of criminal libel. At the criminal trial two of the counts were dismissed by the prosecutor and the plaintiff was at first convicted on the other three counts. On a new trial of these, the defendant was fully acquitted. The plaintiff sued for malicious prosecution as to the two counts which were dismissed. A jury awarded the plaintiff $5,000. On appeal to the Court of Appeals that court reversed the judgment on the ground that there was no basis for the damages, no injury shown, in view of the fact that the plaintiff was simultaneously being prosecuted on the other three counts concerning which the plaintiff had not sued. The Missouri Supreme Court, however, reversed the decision of the Court of Appeals and reinstated the judgment on the jury verdict, and said, 86 Mo. at pages 49-50: '* * * the court of appeals, speaking of the impropriety and injustice of defendants uniting good and bad counts in the same information, use[s] this language: 'Upon principle, it would seem that the fact that some of the charges are well founded, or that a conviction could be procured upon them even, would not justify the defendants, if they had maliciously, and without good grounds, preferred other charges in the same indictment. It is difficult to see, whatever might be the difficulty as to the measure of damages, how the cause of action, arising from the presentation of the ill-grounded charges would be done away with, because well-grounded charges were presented. The obligation would surely be on the defendants to discriminate, and to avoid uniting, with the charges for which probable cause existed, those for which there was not foundation.' From this, it is manifest that whatever difficulty, or impossibility even, there may be in discriminating between the injuries, resulting from the good and bad counts, thus improperly blended, is chargeable to the wrongful act of the defendants themselves, and, upon principle, it would seem that they should not now be permitted to plead their own wrong in their own justification. If, by their wrongful acts, the plaintiff could not readily apportion his expenses, or dissect his trouble, care, anguish and vexation, and opportion them among the five counts in the information, it would seem cruel to hold that no basis could therefore, be afforded by which to adjust the damages to the injuries sustained.
'Indeed, it would seem almost a mockery to hold that, by uniting groundless accusations with those for which probably cause might exist, the defendants could thereby escape liability, because of the injured party's inability to divide his damages between the two with delicate nicety. Such, we think, is not the law.'
The Doherty case, supra, contains no reasoning of its decision. Moreover, it is evident that the court was reluctant to hold a committing magistrate liable in damages for what was merely an erroneous judgment in imposing sentence where the magistrate had jurisdiction of the subject matter and person. It stated that at the trial all parties had assumed that the magistrate could be held liable for such a judgment, but intimated that there was grave doubt that a magistrate could be held liable therefor at all. The Boogher case, supra, on the other hand, is well reasoned. Its language to the effect that a defendant should not be permitted to escape liability for his malicious accusation against a plaintiff merely because she is unable to divide her damages between the two accusations made against her is particularly applicable here.
As we have heretofore stated, this action should be determined without regard to the other action tried at the same time. Moreover, assuming that we can consider the outcome of the other action (although the verdict and judgment do not appear in the record) that verdict and judgment in favor of defendant is not necessarily a finding that defendant had probable cause to bring the charge there involved or that he acted without malice. There are a number of other reasons which could have prompted the jury's action. At most it is a finding that plaintiff in that action failed to make out a case against the defendant. Therefore, so far as this case is concerned, we merely have the situation that the evidence discloses that plaintiff was incarcerated on another warrant at the same time she was incarcerated on the warrant issued on the charge found by the jury to be malicious. As held in the Boogher case, supra, that fact does not require plaintiff to segregate her damages. In spite of the fact that the jury found for defendant in the other case (if we can consider that fact), it must be remembered that in fixing the damages in this case, the jury had full knowledge of the circumstances of the other arrest, and nevertheless, knowing full well what it intended doing in the other case, gave her damages here.
Defendant cites the rule stated in Allen v. Gardner, 1954, 126 Cal.App.2d 335, 340, 272 P.2d 99, 102: 'Uncertainty as to the fact of damage, that is, as to the nature, existence or cause of the damage, is fatal. But the same certainty as to the amount of the damage is not required.' Monroe v. Ownes, 1946, 76 Cal.App.2d 23, 30, 172 P.2d 110, to the same effect. Defendant contends that the rule precludes plaintiff from recovery of damages. On the contrary, it authorizes their recovery.
3. Instructions.
In the complaint in the first action plaintiff alleged in the first count (the malicious prosecution count), general damages of $100,000. In the second count (the false arrest count) she alleged no actual damages but 'plaintiff demands exemplary and punitive damages against said defendant in the sum of $100,000.00.' It would, therefore, appear that in the complaint as a whole she was asking for a total of $200,000. However, in the prayer she merely asked for $100,000. The court instructed that each complaint asked for $100,000 for general damages and $100,000 for punitive damages, or a total in the two complaints of $400,000.
Assuming that the rule "A judgment cannot be properly rendered for a greater sum * * * than is claimed or demanded by plaintiff in his declaration or complaint", Meisner v. McIntosh, 205 Cal. 11, 269 P. 612, quoting from 33 C.J. 1164; 49 C.J.S., Judgments, § 54, means that where the prayer of the complaint is less than its ad damnum clause, the former controls, and assuming that the prayer in the second complaint was less than the ad damnum clauses therein, nevertheless we can see no harm in the court's mistake. The jury were properly instructed in all other respects concerning the issue of damages. The jury gave $10,000 general damages and $15,000 punitive. It is unreasonable to assume that it would have given any less had the court told them the total asked for in the two cases was only $200,000 or any more had the demand been for $500,000. Obviously the award was well within the amount of the prayer.
In Eastlick v. City of Los Angeles, 29 Cal.2d 661, 177 P.2d 558, 170 A.L.R. 225, the items of damage alleged in the body of the complaint totalled only $7,385. The prayer asked for $8,895 and in charging the jury the trial court used the latter amount as the maximum the jury could award. On appeal the defendant claimed error by the trial court in instructing concerning the larger amount. The reviewing court held that objection 'should have been made in the trial court so that the discrepancy could have been there obviated (Lahti v. McMenamin, 204 Cal. 415, 421, 268 P. 644), [but] no harm appears to have resulted from the inaccuracy in the instruction. The verdict was for $5,000, well within the figure conceded by defendant to represent the limit of plaintiff's total demand.' 29 Cal.2d at page 674, 177 P.2d at page 566. In the instant case, the attention of the trial court should have been called to the alleged error in the figures given by it.
The order denying motion for judgment notwithstanding the verdict and the judgment are affirmed. The appeal from the order denying the motion for a new trial is dismissed.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Opinion vacated 289 P.2d 794. 1 The administrator of the estate of S. W. Corlett, deceased, was substituted as party defendant subsequent to the filing of the appeal herein. For convenience 'defendant' as used herein refers to the original defendant. 2 All of these items are hereafter referred to as 'personalty.'