WESLEY GORDON AYNES, Respondent, v. WALTER S. WINANS et al., Appellants, 33 Cal. 2d 206

SPENCE, J. Plaintiff brought this action to recover damages for personal injuries sustained as the result of a collision between his truck and one for the operation of which defendants were liable—defendant Crossley Transportation Company as owner and defendant Winans as lessee, whose employee was the driver at the time of the accident. The jury returned separate verdicts independently assessing damages against the respective defendants, each in the sum of $5,000, and in pursuance thereof two judgments were entered in plaintiff’s favor.

Prom such judgments in disposition of plaintiff’s damage claim, defendants prosecute this appeal. It is not disputed that the jury was properly instructed on the limitation of the owner’s liability as prescribed by

section 402 of the Vehicle Code—with the “maximum” thereof fixed at $5,000 though “a greater sum” be awarded “the plaintiff ... as against the defendant Walter S.

Winans. ’ ’ Likewise it is not disputed that “ [i] n one trial against two or more defendants jointly liable for the same tort, a separate verdict against each defendant is improper”; that ‘ ‘ [t] here should -be but one verdict for a single sum against all the defendants jointly liable”; and that “ [a]ny statutory limitation of liability applicable to any defendant as distinguished from the full liability of other defendants may and should be incorporated in the judgment entered on the verdict.” (Sparks v.

Berntsen, 19 Cal.2d 308, 312 [121 P.2d 497].) There thus remains but the single question of whether defendants have suffered prejudice by reason of the error in the entry of the separate judgments. (James v. E. G. Lyons Co., 147 Cal. 69, 76 [81 P. 275]; Moss v Underwriters’ Report, Inc., 12 Cal.2d 266, 273 [83 P.2d 503]; Estate of Lewis, 126 Cal.App. 90, 94 [14 P.2d 357].) That such is the case appears from a consideration of the effect of enforcing the separate damage awards against defendants in accordance with their terms.

Consequently, the two judgments cannot stand as the measure of plaintiff’s recovery herein. The prejudicial nature of the separate judgment against the defendant company stems from its deprivation of the statutory benefit accorded to the owner of a vehicle held liable “on account of imputed negligence.” (Veh.

Code, § 402, subd. (e).) As there provided, upon the injured party’s “recovery of judgment, recourse shall first be had against the property of [the] operator [who has been] served.” Since in the present case under the independent damage award of $5,000 against defendant company alone, plaintiff must proceed against such owner without first having “recourse” against defendant Winans, the lessee responsible for the negligent driving of his employee, it is manifest that defendant company as owner and lessor of the truck in question has been prejudiced by being subjected to a separate, instead of a joint and several judgment in the stated amount.

The prejudicial nature of the separate judgments with respect to defendant Winans also stems from the same statute. As there provided, “ [i]n the event a recovery is had . \ . against an owner on account of imputed negligence, such owner is subrogated to all the rights of the person injured . . . and may recover from [the] operator the total amount of any judgment and costs recovered against such owner.” (Veh.

Code, § 402, subd. (d).) Since in the present case the record shows one individual judgment for - $5,000 against defendant Winans, lessee of the truck, and another individual judgment for $5,000 against defendant company as owner, the latter after paying the damages assessed against it would be in a position to collect such amount from the lessee by reason of the quoted “subrogation” proviso, and defendant Winans would thus be required to pay a total of $10,000 under the two judgments when in fact there is only one $5,000 judgment entered against him.

It is true that the trial court, when the impropriety of the two judgments was urged by defendant Winans in connection with new trial proceedings, construed the verdicts as constituting a damage award in favor of plaintiff in the amount of $10,000—“judgment . . . for $5,000.00 against each defendant, making a total judgment of $10,000.00” and therefore refused to disturb the judgments as entered.

In so ruling, the court apparently gave regard to the jurors’ affidavit stating their determination that “the damages suffered by the plaintiff, through the negligence of the defendants and for which defendants were chargeable to be $10,000.00” but since they understood that defendant company “could not legally be held accountable for, nor judgment be rendered against it for more than $5,000.00,” they had “divided the $10,000.00 damage between the two defendants” so that “the plaintiff would thus have judgment for $10,000.00 for his damages.” But conceding the jury’s intent to award to plaintiff $10,000 damages, in which case the verdict against defendant Winans “should [have] be[en] for the full amount of the damages sustained” (O’Neill v.

Williams, 127 Cal.App. 385, 390 [15 P.2d 879]), nevertheless the verdict against him expressly limits itself to $5,000, and would not support a judgment against him for more than that amount. Unlike the situation in Snodgrass v.

Hand, 220 Cal. 446 [31 P.2d 198], wherein the two jury awards were joined by the use of the conjunction “and,” so as to permit the court to construe “the verdict to be an award of damages against the operator of the ear, individually, in the sum of $5,000 and an additional joint award of damages against the operator and owner of the car in the further sum of $5,000—[i]n other words, ... an award of damages against the operator of the car in the sum of $10,000, for one-half of which sum the owner of the car was to be jointly liable” (pp. 447-448)—there were two verdicts returned in the present case on separate forms as independent damage assessments of $5,000 against each defendant, and there was no joint award against both defendants.

Accordingly, such verdicts could not reasonably be regarded as authorizing an award of damages against defendant Winans in the sum of $10,000, nor did the trial court undertake to so construe them in concluding that they gave plaintiff “a total judgment of $10,000.00” divided “$5,000.00 against each defendant.” Yet, as indicated, the record here discloses a situation whereunder defendant Winans might be compelled ultimately to pay both judgments—a damage recovery double the amount which the individual verdict and judgment against him would sustain—and the propriety of his complaint on that ground of prejudice cannot be disputed. (Cf., Phipps v.

Superior Court, 32 Cal.App.2d 371, 376-377 [89 P.2d 698].) For the foregoing reasons the judgments herein are reversed and the cause is remanded for a new trial on the issue of damages alone in accordance with the views herein-above expressed. Gibson, O. J., Shenk, J., Edmonds, J., Traynor, J., and Schauer, J., concurred.