O'KELLY v. Willig Freight Lines

66 Cal. App. 3d 578, 136 Cal. Rptr. 171, 1977 Cal. App. LEXIS 1155

• Court: California Court of Appeal
• Decided: January 28, 1977
• Docket: Civ. 49153
• Status: Published

Opinions

Opinion

KINGSLEY, Acting P. J.

Defendants appeal from an order of the trial court granting plaintiff’s motion for a new trial. For the reasons set forth below, we modify the order and affirm it as modified.

This is a case of first impression in California dealing with the power of a trial court, in an action tried under the doctrine of comparative negligence pronounced in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr, 858, 532 P.2d 1226], to grant .a limited new trial on the issue of apportionment of damages. (This case was tried after the Li case became effective.)

Plaintiff parked her automobile, briefly, near to the right curb on a four-lane city street. Defendants’ truck, attempting to pass her parked car, struck the left rear fender of plaintiff’s car, causing both property damage and personal injuries to' plaintiff. The evidence was conflicting both as to the conduct of the parties and as to the extent of the personal injuries.¹ On the issue of negligence, the evidence for plaintiff was that she had parked parallel to the curb and within the statutory limits for a curb-side parking and that, after the accident, defendant driver had said, “I’m sorry. It was my fault.” The evidence for defendants was that the car was parked at an angle, with the left rear fender extending 18 inches or more into the second lane from the curb, forcing defendant driver to veer into the third lane but being forced back into the second lane by other traffic on the street. The driver denied making the admission of fault attributed to him by plaintiff.²

The jury returned a verdict for plaintiff in the amount of $8,073.72, with a special verdict reading as follows:

“We, the jury in the above-entitled action, find as follows on the particular questions of fact submitted to us:

“Question No. 1. Without taking into consideration the questions of reduction of damages due to the negligence of the plaintiff, if any, what did you find to be the total amount of plaintiff’s damages proximately resulting from the accident in question?

“Answer: $16,147.43

“Question No. 2. Was there negligence on the part of the plaintiff which contributed as a proximate cause of her injury?

“Answer ‘yes’ or ‘no.’

“Answer: Yes

“If your answer , to question No. 2 is ‘no,’ then you shall not answer Question No. 3, since the amount of damages set forth in your answer to Question No. 1 is the amount of your verdict. '

“If your answer to question No. 2 is ‘yes,’ you are instructed to answer Question No. 3.

“Question No. 3. The combined negligence of the plaintiff and of the defendants whose negligence proximately contributed to the injury being 100%, what proportion of such combined negligence is attributable to the plaintiff and what proportion is attributable to such defendants?

“Answer: To plaintiff 50%

To defendants 50%>”

Plaintiff moved for judgment notwithstanding the verdict, and for a new trial. The latter motion was made on all of the statutory grounds. The motion for judgment notwithstanding the verdict was withdrawn; the motion for a new trial was granted by a minute order reading in pertinent part as follows:

“In the matter heretofore taken under submission by the court on August 25, 1975, the court announces its rulings as follows:

“Motion for new trial is granted upon the ground of insufficiency of the evidence to justify the verdict for the reason that the evidence fails to support the special finding and verdict of the jury that of the combined negligence of the plaintiff and of the defendants whose negligence proximately contributed to plaintiff’s injuries, the proportion of negligence attributable to the plaintiff is 50%.”

Thereafter the trial court signed and filed within the statutory time limit (Code Civ. Proc., § 657) its specification of reasons, as follows: “The plaintiff’s motion for new trial was granted upon the ground of insufficiency of the evidence to justify the verdict for the reason that the evidence fails to support the special finding and verdict of the juiy that of the combined negligence of the plaintiff and of the defendants whose negligence proximately contributed to plaintiff’s injuries, the proportion of negligence attributable to the plaintiff is 50%, in that the evidence showed plaintiff pulled up and stopped her car parallel and close to the curb, that her car was struck from behind by defendant Wade and moved ten to twelve feet forward, and that immediately after the accident the defendant Wade said in substance, ‘I’m soriy. It was my fault.’ ”

I

Defendants contend that the specifications of reasons did not meet the requirement of section 657 of the Code of Civil Procedure as that section has been interpreted in Mercer v. Perez (1968) 68 Cal.2d 104 [65 Cal.Rptr. 315, 436 P.2d 315]. We conclude that the specification was sufficient. The court pointed to specific items of evidence that tended to show a substantial amount of negligence on the part of defendant driver and a minimal amount of negligence on the part of plaintiff. The recital of those items distinguishes this case from Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689 [106 Cal.Rptr. 1, 505 P.2d 193], on which appellants rely.

II

Defendants contend that, if the order can be sustained at all, it must be treated as being limited to a new trial solely on the question of apportionment between the parties of the total damage. We agree.

Although plaintiff's motion for judgment notwithstanding the verdict and for a new trial sought both an undivided apportionment of damages and a larger finding of damage, the order is silent as to all matters except the proportion of apportionment. It is clear from the order granting the new trial motion, and from the specification of reasons, that the trial court did not intend a total retrial, nor a retrial concerning the total amount of damage. We read it in that light.

Although we are cited to no California cases dealing with the matter before us, and we have found none, there is authority out of this state for granting a new trial limited to the issue of apportionment. (Caldwell v. Piggly-Wiggly Madison Co. (1966) 32 Wis.2d 447 [145 N.W.2d 745, 752]; Firkus v. Rombalski (1964) 25 Wis.2d 352 [130 N.W.2d 835, 840]; Schwartz, Comparative Negligence (1974) § 18.3, pp. 301-305.) We see no reason why that course should not be followed here. It is true that, in order to make a proper allocation of damage, the july on the new trial will have to hear, and weigh, anew, all of the evidence dealing with the conduct of the parties, but the jury may, properly, be told, when the case is submitted to them that: (a) as matter of the law of this case, they must find that each party is negligent in some degree; (b) they must proceed on the assumption that the total damage was $16,147.43; and (c) their sole function is to apportion that total damage between the parties.

The minute order granting a new trial is modified by inserting, after the paragraph above quoted, the words: “Such new trial shall be limited to ascertaining the proper apportionment of the total damage of $16,471.43 between the parties.” As so modified, it is affirmed. Neither party shall recover costs on this appeal.

Dunn, J., concurred.

1 defendants’ brief, unnecessarily, devotes several pages to a discussion of the extent of plaintiff’s damages. No issue as to the total damage is presented by the record before us.

2 The driver’s testimony was: “A. I recall going back and telling them, Miss O’Kelly and the few people that were there, that I was sorry about hitting her car, that I had been cut off, and there was one man there that said immediately that he saw the car cut me off too.”