TOSHIO HAMASAKI, a Minor, etc., et al., Respondents, v. FRED W. FLOTHO, SR., et al., Appellants, 39 Cal. 2d 602

TRAYNOR, J. Plaintiff Toshio Hamasaki was struck by an automobile driven by defendant Fred Flotho, Jr. The latter was acting in the course of his employment by defendant Leland and was using the ear with the consent of its owner, defendant Fred Flotho, Sr. Toshio and his father brought this action to recover for injuries and medical expenses. The accident occurred in a residential neighborhood while Toshio, who was then not quite 6 years of age, was crossing the street in the middle of the block.

At the trial plaintiffs contended that the defendant driver was traveling at an excessive rate of speed and was not maintaining a reasonable lookout for pedestrians. Defendants contended that the driver was not speeding and that, plaintiff suddenly darted from behind a parked truck into the path of the automobile. Although it was conceded that Toshio was severely injured, the extent of Ms injuries was contested. The jury returned a verdict in favor of plaintiffs for $1,000. Defendants’ motion for a new trial was denied.

Plaintiffs’ motion for a new trial on the issue of damages only was granted after defendants refused to consent to a judgment of $7,500. Defendants have appealed from the order granting plaintiffs’ motion. There is no appeal from the judgment. Defendants do not claim that the damages awarded by the jury are adequate. It is their position that the jury compromised the liability issue and that liability was therefore never determined.

They suggest even that the verdict is “less than a compromise,” that is, that the jury concluded defendants were not liable but nevertheless, out of sympathy, allowed plaintiffs approximately the amount of the special damages.

Although the granting of a new trial limited to the issue of damages rests primarily in the discretion of the trial court, it is an abuse of discretion to grant such a new trial if the question of liability is close, if the damages awarded are grossly inadequate, and if there are other circumstances that indicate that the verdict was the result of prejudice or an improper compromise. (Leipert v. Honold, ante, p. 462 [247 P.2d 324].)

(1) Evidence of liability. The accident took place on Carmelita Street in Los Angeles. The pavement is 30 feet wide and has no center line. There are houses on most of the adjoining lots, but no sidewalks. Between the pavement and the houses on each side of the street there is a dirt shoulder. Immediately before the accident Toshio was walking south on the east shoulder. A truck was parked on the shoulder in the middle of the block, approximately 195 feet south of the nearest intersection. A witness saw Toshio pass the truck on the side away from the pavement and then turn around it into the street.

At that moment this witness looked away and did not see the accident. The defendant driver was also proceeding south on Carmelita. He testified that he was driving at 20 to 25 miles per hour. Other witnesses variously estimated his speed at from 35 to 60 miles per hour but they all testified that he stopped within 50 feet beyond the point of impact. Just before the accident he had moved into the east half of the street to pass around another truck parked partially off the pavement on the west side.

Photographs of his skid marks indicate that at the point of impact he had returned to the west side; his left skid mark passed over a manhole cover in the center of the street. He testified that Toshio suddenly ran into his path from behind the truck when only 15 feet in front of the moving car and that it was then impossible to avoid the accident. Toshio did not testify.

In view of the residential character of the neighborhood, the testimony that the driver was traveling 60 miles per hour would fully justify the conclusion that he was negligent, but the opposing evidence was also ample to uphold a contrary finding. It is apparent that the jury faced a difficult task in resolving this question.

(2) Inadequacy of damages. Plaintiffs’ special damages were stipulated to be $817.10. Thus the award of $1,000 allowed only $182.90 for general damages. When taken to General Hospital immediately following the accident, Toshio was not expected to live. He was unconscious for several days. His injuries included brain concussion, a complete fracture of the collarbone, and several fractures of the skull. Three of the skull fractures were extensive ; one of them resulted in a separation of almost half an inch and a depression of almost one-quarter of an inch.

There were two puncture wounds in the forehead, the coverings of the left eyeball were swollen, and the pupils were unequal. There was also a bilateral ankle clonus. This much was not contested. In addition there was medical testimony that as a result of the accident Toshio was suffering from permanent psychomotor epilepsy and that he would require continuous medical care throughout the remainder of his life. This latter evidence, however, was disputed by defendants’ medical experts.

Toshio’s teachers were in disagreement as to whether or not he had made a substantial recovery insofar as his school activities were concerned. Even if the jurors rejected the evidence of permanent injury, it is inconceivable that they regarded $182.90 as adequate compensation for the brain concussion, the broken clavicle, the various skull fractures, and the other injuries admittedly sustained. The conclusion is inescapable that the verdict was not the result of an effort to assess the pecuniary value of Toshio’s suffering.

Had the jury truly believed that defendants were liable, the verdict would have been for many times this amount. Plaintiffs contend, however, that whenever the jury allows ' full compensation for special damages and any amount, no matter how small, for general damages, the trial court’s decision to allow a limited new trial will not be reversed on appeal. Such a view offers the convenience of a mechanical formula, but it ignores the principles that govern the granting of partial new trials.

A new trial limited to the damages issue may be ordered by the trial court when it can reasonably be said that the liability issue has been determined by the jury.. A refusal to allow for undisputed special damages is usually convincing evidence that the jury failed to make a decision of the liability issue, and that circumstance has therefore been stressed in a number of appellate opinions. (See Wallace v. Miller, 26 Cal.App.2d 55, 56 [78 P.2d 745] ; Donnatin v.

Union Hardware & Metal Co., 38 Cal.App. 8, 11 [175 P. 26, 177 P. 845].) In a particular case, however, gross inadequacy of unliquidated general damages may be just as convincing. Thus, in Simmons v. Fish, 210 Mass. 563, 571 [97 N.E. 102, Ann.Cas. 1912D 588], it was held that a verdict of $200 for the loss of an eye was a conclusive indication that the jury had compromised the issues of liability and damages. (See, also, Schuerholz v. Roach, 58 F.2d 32, 34 [$625 for loss of eye] ; Keogh v.

Moulding, 52 Cal.App.2d 17, 21 [125 P.2d 858] [verdict for $291.23 more than undisputed damages].) As a general rule, it is only when the verdict allows a substantial, even though inadequate, amount for general damages that it can reasonably be concluded that the jury’s error related solely to the damages issue. (Hughes v. Schwartz, 51 Cal.App.2d 362, 368 [124 P.2d 886] ; McNear v. Pacific Greyhound Lines, 63 Cal.App.2d 11, 16 [146 P.2d 34].) In view of Toshio’s serious injuries, $182.90 cannot be regarded as substantial. Taylor v.

Pole, 16 Cal.2d 668, 675 [107 P.2d 614], does not conflict with the foregoing authorities. In that case the error necessitating a new trial directly involved the trial court’s instructions regarding damages. Moreover, the evidence of defendant’s liability was “overwhelming.” The new trial was therefore limited to the damages issue even though, as to one of the plaintiffs, the jury had awarded less than the undisputed special damages. (See, also, Crandall v. McGrath, 51 Cal.App.2d 438, 440-442 [124 P.2d 858] ; Loughran v. McKenna, 60 R.I. 453, 457 [199 A. 302] ; cf Keogh v.

Moulding, 52 Cal.App.2d 17, 21-22 [125 P.2d 858].) In the present ease the jury was properly instructed concerning damages and the issue of liability was close, so that the grossly inadequate award cannot reasonably be explained as a mere error of the jury in the assessment of damages.

(3) Other circumstances indicating compromise. The order granting plaintiffs’ motion for a limited new trial provided that if defendants would consent to a judgment of $7,500, the motion would be deemed denied. This proposal of the trial judge thus allowed $6,682.90 for general damages— more than 36 times the $182.90 allowed in the verdict.

The great disparity between the jury’s determination and that of the judge provides an additional and striking indication that the jurors could not agree on the liability issue and that those who believed defendants were liable consented to inadequate damages in return for the votes of those who had decided that defendants should pay nothing. Our conclusion that the verdict was the result of an improper compromise necessitates a reversal of the order granting a limited new trial. Plaintiffs contend that in the event a limited new trial is denied them they should be given a new trial on all issues.

Unquestionably plaintiffs have been prejudiced by the jury’s inadequate award, and they would ordinarily be entitled to a reversal of the judgment on that ground. Defendants urge, however, that under the special circumstances of this appeal we have no jurisdiction to do more than affirm or reverse the trial court’s order and that we cannot direct a complete new trial. No appeal lies from the trial court’s denial of defendants ’ motion for new trial; that ruling may be reviewed only through an appeal from the judgment. (City of Los Angeles v. Glassell, 203 Cal. 44, 46 [262 P. 1084] ; Litvinuk v.

Litvinuk, 27 Cal.2d 38, 42 [162 P.2d 8]; Caldwell v. Caldwell, 80 Cal.App.2d 378, 384 [182 P.2d 258].) Defendants have not appealed from the judgment, and, since timely notice of appeal is a jurisdictional requirement (Estate of Hanley, 23 Cal.2d 120, 122 [142 P.2d 423, 149 A.L.R. 1250] ), we are without jurisdiction to review the judgment or the denial of defendants’ motion. The only appeal before us is that from the order granting plaintiffs’ motion for a limited new trial.

In disposing of this appeal we have jurisdiction to do no more than the trial court itself could have done. (See Tomales Bay Oyster Corp. v. Superior Court, 35 Cal.2d 389, 392 [217 P.2d 968] ; Crescent Feather Co. v. United Upholsterers’ Union, 153 Cal. 433, 434 [95 P. 871] ; Byxbee v. Dewey, 128 Cal. 322, 326 [60 P. 847] ; Wheeler v. Bolton, 92 Cal. 159, 167 [28 P. 558]; Bloxham v. Tehama County Tel.

Co., 29 Cal.App. 326, 340 [155 P. 654].) The controlling question, therefore, is whether or not the trial court, on plaintiffs’ motion for a new trial on the issue of damages only, had power to grant a new trial on all issues. This question is analogous to that presented when an appeal is taken from only a part of a judgment. To simplify litigation a party who is aggrieved by a judgment is ordinarily entitled to limit his appeal to the parts thereof with which he is dissatisfied.

Similarly, when he is seeking relief in the trial court by way of a new trial, he ordinarily may seek a retrial only of the issues on which the decision has been adverse to him. In either case, however, situations may arise where the issues are so interwoven that a partial retrial would be unfair to the other party. When, as in the present case, for instance, the jury has, by compromising the issues of liability and damages, inextricably interwoven those issues, a retrial of the damages issue alone based on the erroneous assumption that defendant’s liability has been determined would be extremely unjust to him.

A situation is thus presented where the plaintiff has been aggrieved, but the specific relief he seeks may not be granted without doing an injustice to the defendant. Since the relief requested may not be granted, the trial court, if the issue is presented by motion for a limited new trial, or the appellate court, if the issue is presented by a partial appeal, must do one of two things. It must either deny all relief, or order a new trial on both issues.

In the case of partial appeals it is settled that the court may review as much of the judgment as is necessary to give the appellant the relief he seeks even though it is necessary to reverse parts of the judgment with which he has no quarrel and from which neither party has appealed. (Milo v. Prior, 210 Cal. 569, 571 [292 P. 647]; Blache v. Blache, 37 Cal.2d 531, 538 [233 P.2d 547] ; American Enterprise, Inc. v. Van Winkle, ante, p. 210 [246 P.2d 935] ; Bailey v. Bailey, 60 Cal.App.2d 291, 293 [140 P.2d 693].) Logically the same rule should govern the trial court when passing on a motion for a limited new trial.

It is suggested that in a particular case both parties may prefer the judgment as originally entered to the expense and uncertainty of a new trial on aE issues, and that therefore the trial court should not have jurisdiction to grant a complete new trial in the absence of a motion therefor. There is no reason why, if a limited new trial cannot be granted, the parties should not be allowed to adopt the jury’s compromise as their own. In such a case, however, the trial court would undoubtedly respect their preference in this respect and deny any new trial at all. (Cf., Leipert v.

Honold, ante, p. 462 [247 P.2d 324].) Accordingly, it is not necessary to Emit the jurisdiction of the trial court in passing upon a motion for a partial new trial to prevent a complete new trial that neither party wants. If the defendant does not wish a new trial he need not move for one, and if the plaintiff does not wish a complete new trial, if he cannot have a partial new trial, he need simply say so. On its face, however, a motion for a limited new trial gives no .inkling that the plaintiff would prefer no new trial to a complete new trial.

Before such a preference could be inferred it would be necessary to assume his knowledge of a rule that the trial court could only grant or deny the motion as made. To adopt such a rule would thus create a procedural trap for those unwary of the niceties of practice, who, foEowing the natural instinct to ask only for what they wished would discover they could receive nothing because they asked for too much. It is no answer to say that the plaintiff could extricate himself from this trap by appealing from the judgment after his motion for a limited new trial was denied.

The power of the appellate court to reverse a judgment because of the inadequacy of the damages is much more limited than that of the trial court to grant a new trial for the same reason, and thus in most cases the plaintiff must secure relief from the trial court if he is to secure it at all. Defendants contend, however, that by amending

section 657 of the Code of Civil Proceure in 1929, the Legislature adopted the rule that a trial court may not order a new trial on all issues when the motion is limited to the issue of damages alone. Although this contention is supported by Quevedo v. Superior Court, 131 Cal.App. 698 [21 P.2d 998], the court in that case did not consider the analogous rule applicable to partial appeals, and we have concluded that its

interpretation of the amendment to the statute was erroneous. Before 1929,

section 657 read: ‘‘ The former verdict or other decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: . . . .” After the amendment of that year the

section read: “The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: . . . .” The principal changes effected by the amendment were the addition of the words “modified,” “in whole or in part,” and “on all or part of the issues.” Since it had earlier been held that a new trial could be limited by the trial court to particular issues, it was said in the Quevedo case that the purpose of the amendment could not have been merely to authorize such limited' new trials and therefore must have been to restrict the trial court’s jurisdiction to the exact terms of the motion.

The statutory language itself does not expressly refer to jurisdiction and by no means compels the conclusion that the Legislature meant to affect jurisdiction. Although the application of an aggrieved party is a jurisdictional requirement for new trial proceedings in California (Tabor v. Superior Court, 28 Cal.2d 505, 507 [170 P.2d 667] ; Prothero v. Superior Court, 196 Cal. 439, 444 [238 P. 357] ; Ransome- Crummey Co. v. Superior Court, 188 Cal. 393, 398 [205 P. 446]; Title Ins. & Trust Co. v. California Dev. Co., 171 Cal. 173, 194. [152 P. 542]; Kohlstedt v.

Hauseur, 24 Cal.App.2d 60, 64 [74 P.2d 314]), there is no direct suggestion in the statute that the trial court, in correcting the error complained of, is limited to the method specified in the application. If the limited new trial sought would be prejudicial to the opposing party, the granting of a complete new trial is the most reasonable response to the motion. Moreover, if the language of

section 657 is interpreted to restrict the trial court’s power to either granting or denying a request for a limited new trial, then logic dictates that the statute should also be interpreted to restrict the trial court’s power to either granting or denying a request for a complete new trial. The power of the trial court, however, to limit a new trial to particular issues, even when the motion was for a complete new trial, has not been questioned and was expressly recognized in the Quevedo case itself. An examination of the legislative history of

section 657 shows that the purpose of the amendment of 1929 was unrelated to the jurisdictional question here presented. The changes in

section 657 were effected by

section 2 of

chapter 479 of the Statutes of

Section 7 of

chapter 479, enacted on the same day, added the following new

section to the Code of Civil Procedure: Ҥ 662.

In ruling on such motion, in a a cause tried without a jury, the court may, on such terms as may be just, change or add to the findings, modify the judgment in whole or in part, vacate the judgment, in whole or in part, and grant a new trial on all or part of the issues, or, in lieu of granting a new trial, may vacate and set aside the findings and judgment and reopen the case for further proceedings and the introduction of additional evidence with the same effect as if the case had been reopened after the submission thereof and before findings had been filed or judgment rendered.

Any judgment thereafter entered shall be subject to the provisions of sections 657 and 659 of this code. ’ ’

Section 657 of the Code of Civil Procedure is a general

section giving the trial court authority to review its own judgments and setting forth the grounds on which review is to be made. Before 1929, such authority was limited to granting new trials, but in that year the Legislature gave the trial court, in nonjury cases, the alternative power of modifying its judgments. To this end,

section 662 was added to the code, setting forth in detail the procedure for nonjury eases. An important purpose of the new

section was the granting of authority to make partial changes in findings and judgments, and the words “modify,” “in whole or in part,” and “on all or part of the issues ’ ’ were used to describe that authority. Since

section 662 is concerned with a special application of the general power of review conferred by

section 657, rewording of

section 657 was also necessary to make it conform to the new procedure for nonjury cases. Thus it was provided that decisions other than verdicts could be “modified” “in whole or in part” and new trials granted “on all or part of the issues.” This phraseology is identical with that used in the newly added

section 662. It is clear that the changes in

section 657 were intended to relate solely to the subject matter of

section 662 and were not designed to alter the jurisdictional effect of a motion for new trial. To the extent that the Quevedo ease holds to the contrary it is disapproved. The order granting a new trial on the issue of damages only is reversed, and the cause is remanded to the trial court with directions to vacate the judgment and order a new trial on all issues. Gibson, G. J., Shenk, J., and Spence, J., concurred.