Opinion
See 113 P.2d 735.
Rehearing Denied May 29, 1941.
Appeal from Superior Court, Placer County; Raymond McIntosh, Judge.
Actions by Bert Sparks, James L. Johnson, and Bernard A. Coker, etc. against Paul Anker Berntsen and another for injuries and damages sustained in an automobile accident. From judgments for plaintiffs, defendants appeal.
Modified and as modified affirmed. [Copyrighted Material Omitted] COUNSEL
Hoge, Pelton & Gunther, of San Francisco, and Butler, Van Dyke & Harris, of Sacramento, for appellants.
Henry & Bedeau, of Sacramento, Nathan Goldwater and Leo Murcell, both of Oakland, and Orrin J. Lowell, of Auburn, for respondents.
OPINION
PER CURIAM
Bert Sparks, James L. Johnson and Bernard A. Coker, respondents herein, each brought an action against appellants Paul Anker Berntsen and Reidar Enge, to recover damages for injuries received in the same automobile accident. The three cases were consolidated for trial and on appeal. Respondent Johnson included in his action a claim for property damage incurred in the same accident. Appellant Berntsen was the operator, and appellant Enge the owner, of the responsible automobile. At the opening of the trial, it was stipulated that appellant Berntsen was, at the time of the accident, driving the automobile of appellant Enge, with the consent and permission of the latter, but not in the capacity of either servant, agent, or employee of Enge. Appellants conceded liability; the actions were consolidated and tried together on the sole issue of the amount of damages to which the several plaintiffs were entitled. Respondent Sparks claimed $20,000, Johnson claimed $15,095, and Coker claimed $10,000.
The case called for the application of section 402 of the Vehicle Code, St.1935, p. 153, as amended by St.1937, p. 2353 (formerly sec. 1714 1/4, Code Civ.Proc.), which limits liability of the owner for injury to one person to the sum of $5,000, and for more than one in the same accident to $10,000. The proceedings surrounding the return of the verdicts illustrate again the difficulty encountered by juries in comprehending the provisions of the law concerning the limitation of liability of the owner of an automobile under this section.
After deliberating for approximately two hours, the jury in this case returned into court, and through one of its number asked for further instructions as to the extent of the amount of damages that might be awarded, and the apportionment thereof to be made between the two defendants. By stipulation of counsel certain instructions theretofore given the jury were again read, and upon the retirement of the jury these were taken into the jury room. Thereafter, the jury again came into court and announced that verdicts had been arrived at. These they presented to the court. Each verdict found in favor of the plaintiffs and against defendants as follows: "We, the Jury, find in favor of the above-entitled plaintiff and against Paul Anker Berntsen and defendant Reidar Enge." In each case, there was added to the above-quoted language an assessment of damages, which in the Sparks case read as follows: "and assess damages against Paul Anker Berntsen in the sum of $8,000.00, and assess his damages against Reidar Enge in the sum of $3,000.00." In the Johnson case, the added language was "and assess damages against Paul Anker Berntsen in the sum of $1,250.00 and assess as damages against Reidar Enge in the sum of $845.00"; and in the Coker case was added "and assess as damages against Paul Anker Berntsen in the sum of $1,250.00 and assess as damages against Reidar Enge in the sum of $750.00".
The several verdicts were thereupon read to the jury by the clerk of the court, and the jurors were asked if these were their verdicts. The answer was in the affirmative. At the request of plaintiffs, the jury was polled, and no dissent by any of the jurors appears in the record. The court thereupon directed the clerk to enter the verdicts, but before the order was complied with, the plaintiffs objected to such entries; the defendants, on the other hand, insisted that the verdicts spoke for themselves and requested that the same be entered, and that "the court make the necessary allocation under the law". After considerable discussion, in which the court, counsel, and several of the jurors participated, the court furnished the jury with stationery and directed them to again retire and prepare such verdicts as they desired to render. The jurors again retired, and later came into court with three verdicts, one in each case. In each they again found for the plaintiff and against the defendants, and the assessment of damages was then made as follows:
In the Sparks case: "and assess damages against the said defendants in the total sum of $11,000.00, of which said sum we assess damages against defendant Paul Anker Berntsen in the sum of $8,000.00, and assess damages against defendant Reidar Enge in the sum of $3,000.00." In the Johnson case: "and assess damages against the said defendants in the total sum of $2,095.00, of which sum we assess damages against defendant Paul Anker Berntsen in the sum of $1,250.00, and assess damages against defendant Reidar Enge in the sum of $845.00."
In the Coker case: "and assess damages against said defendants in the total sum of $2,000.00, of which sum we assess damages against defendant Paul Anker Berntsen in the sum of $1,250.00, and assess damages against defendant Reidar Enge in the sum of $750.00."
These several verdicts were read to the jury by the clerk, and the jurors were asked if such were their verdicts. The answers were in the affirmative. Again there followed discussion between the court and counsel, and over the objection of appellants the court directed the clerk to enter judgment against both defendants and in favor of respondent Sparks for the sum of $11,000; in favor of respondent Johnson in the sum of $2,095; and in favor of respondent Coker in the sum of $2,000. On the following day, the court directed that there be added to the judgment in the Sparks case the words "however limiting the amount payable by defendant Enge to the sum of $5,000.00". From the judgments so entered this appeal is prosecuted.
It is settled law that the liability of two or more persons who jointly engage in the commission of a tort is joint and several. Grundel v. Union Iron Works, 127 Cal. 438, 59 P. 826, 47 L.R.A. 467, 78 Am.St.Rep. 75. There can be no apportionment of damages between joint tort-feasors. Oldham v. Aetna Insurance Co., 17 Cal.App.2d 144, 61 P.2d 503. Section 402 of the Vehicle Code creates a joint and several liability against the owner and the operator of an automobile. Kerrison v. Unger, 135 Cal.App. 607, 27 P.2d 927. That section, however, places a limitation upon the extent of recovery against the owner and the award against him is restricted to $5,000, where that against the operator equals or exceeds that sum, and where the award is for less than $5,000 the award against the owner must be in the same amount as that against the operator. Bradford v. Brock, 140 Cal.App. 47, 34 P.2d 1048; Kerrison v. Unger, supra. On principle, there should be but one verdict against both joint tort-feasors (Marriott v. Williams, 152 Cal. 705, 93 P. 875, 125 Am.St.Rep. 87), leaving it to the court to apply the law as found in section 402 of the Vehicle Code. The trial court here properly instructed the jury as to the provisions of that section, but also furnished them forms of verdict calling for an entirely separate award against each defendant. Out of this, arose the confusion which followed. The verdicts which were first returned, while informal, were not void. Each fixed the extent of recovery against the operator, and the award to be made against the owner followed as a matter of law. The verdicts being informal, it was within the province, and may have been the duty, of the trial court, to send the jury out again. Code Civ. Proc. sec. 619. This was done, but only after the verdicts had become final and completed, and after the jury, in the eyes of the law, had been discharged.
The record discloses that, as required by section 618 of the Code of Civil Procedure, the verdicts were in writing, and signed by the foreman of the jury. They were read to the jury by the clerk; inquiry was made of the jurors whether such were their verdicts, affirmative answers were given, the jurors, at the request of plaintiff, were polled, and no disagreement with the verdicts was expressed. Section 618 of the Code of Civil Procedure provides that "If upon such inquiry or polling, more than one-fourth of the jurors disagree thereto, the jury must be sent out again, but if no such disagreement be expressed, the verdict is complete and the jury discharged from the case." In the instant case, the procedure laid down by section 618 was followed, to and including the stage where the statute declares the verdict to have been complete, and the jury, as a matter of law, discharged from further consideration of the case. Therefore, when the jury was again sent out, the time had gone by for any amendment to or change in the verdict. The statute provides that at a certain stage of the proceedings, the verdict is complete, and to allow a change after a verdict is complete would be to ignore the statute entirely. The entry of the verdicts in the minutes is required by section 628 of the Code of Civil Procedure, but we find no requirement that this must be done prior to the discharge of the jury, as is the case in a criminal proceeding. Pen.Code, sec. 1164.
There are cases wherein may be found language that would indicate that the verdict of a jury may be altered or amended after the jury has indicated its assent to the verdict first announced, but it is to be noted that in none of such cases is involved the question of the particular stage of the proceedings at which the change might be made. In Pray v. Trower Lumber Co., 101 Cal.App. 482, 281 P. 1036, objection to the informality of the verdict was made after the jury was polled, and was overruled by the court. On appeal, it was held that reconsideration of the verdict was not required, the verdict being legally sufficient to justify the entry of a proper judgment. In Redo y Cia v. First National Bank, 200 Cal. 161, 252 P. 587, in Awbrey v. De Rose, 98 Cal.App. 223, 276 P. 1080, and in Kerrison v. Unger, supra, the court declined to accept informal verdicts, and in each case, prior to the completion of the verdict, directed the jury to retire and further consider its verdict. In Brown v. Regan, 10 Cal.2d 519, 75 P.2d 1063, in Logan v. Lewis, 35 Cal.App. 663, 170 P. 851, and in McNutt v. Pabst, 25 Cal.App. 177, 143 P. 77, the record does not disclose to what stage the proceedings had advanced when the jury was sent out to reconsider its verdict. In Hallinan v. Prindle, 220 Cal. 46, 29 P.2d 202, 206, where the court said: "The jury should have been returned to the jury room with instructions to reconsider and reframe their verdict", it must be assumed that this language applied to a time prior to the completion of the verdict.
It is our conclusion that when, under the statute, a verdict is completed, no authority exists in the jury to alter or amend its verdict. The verdicts first returned herein, although informal, were therefore completed verdicts, and not subject to alteration or amendment. The judgments finally entered were not in accordance with such verdicts, hence those judgments cannot stand, for they have no sufficient foundation.
It has been held that where a single verdict is brought in against the operator and owner in excess of $5,000, such verdict, although informal, is not void, but may be corrected by a reduction to $5,000 as against the owner. Garrison v. Williams, 128 Cal.App. 598, 17 P.2d 1072; Carnes v. Pacific G. & E. Co., 21 Cal.App.2d 568, 69 P.2d 998, 70 P.2d 717; Harveld v. Milani, 1 Cal.App.2d 157, 36 P.2d 393.
In each of the completed verdicts rendered herein, the amount of recovery against the operator was established; in the Sparks case in the sum of $8,000, and in each of the other cases at $1,250. The law thereupon steps in, and liability of the owner being admitted, fixes the amount of recovery against him in the Sparks case at $5,000 and in each of the other cases at $1,250. Judgments against the owner, contrary to this, having been entered herein, it was the duty of the trial court, on the motion for a new trial, to correct the error. King v. Unger, 35 Cal.App.2d 192, 94 P.2d 1040; Garlick v. Bower, 62 Cal. 65. The same obligation now rests upon this court. Milburn v. Foster, 8 Cal.App.2d 478, 47 P.2d 1106.
Nor, may it be said that an increase by the court of the amount awarded by the jury against the owner deprives him of the constitutional right to a jury’s determination of the amount of damages to be assessed against him. There is, in fact, no such increase, for the jury having determined the award against the operator, by that very act, by operation of law, fixed the assessment against the owner. If the jury attempted to assess the owner for a less sum than the law required, such attempt was futile. It may be noted, too, that here the appellant owner concedes that the increase of the award against him would be proper. On the completion of the verdicts, he asked that the same be entered, and "that the court make the necessary allocation under the law". In King v. Unger, supra, informal verdicts were rendered, but the court declined to receive the same, and sent the jury out before their completion. Thereafter, the jury returned into court and announced verdicts awarding $5,341.71 against the operator and $1,335.45 against the owner. On appeal, the latter amount was increased to $5,000. The same course must be followed here in the Sparks case; and in the Johnson and Coker cases the awards against the owner must be increased to equal those against the operator.
Respondents contend that the jury, when it found a verdict of $8,000 against the operator and $3,000 against the owner, intended to find a total damage of $11,000, and that the judgment against the operator should be in such sum. The jury were instructed that, as against the operator, they could assess damages up to the amount demanded in the complaint. It must be presumed that the jury understood the instructions as given. Poncino v. Sierra Nevada L. & C. Co., 104 Cal.App. 671, 675, 286 P. 729. The verdict, then, as to the operator, was legal and final. The only question is the correctness of the verdict against the owner. As we have pointed out, that was a matter for the court in the application of section 402 of the Vehicle Code.
It is therefore ordered that the judgments entered in each of these cases be vacated and set aside, and that judgment be entered in the trial court in favor of respondent Sparks, and against appellant Berntsen, in the sum of $8,000, and against appellant Enge in the sum of $5,000; in favor of respondent Johnson, and against both appellants, in the sum of $1,250; and in favor of respondent Coker, and against both appellants, in the sum of $1,250.
As so modified, the judgment in each action is affirmed. Appellants will recover their costs on appeal.