Crain v. Sumida

This action was brought against H. Sumida and K. Sumida to recover damages alleged to have been sustained by plaintiff in a collision between his automobile and an auto delivery truck the driver of which was alleged by plaintiff to be an employee of both defendants. Plaintiff recovered a verdict against the defendant H. Sumida for the sum of $1,450. From a judgment entered on that verdict H. Sumida has taken this appeal.

It developed at the trial that the delivery truck, instead of being the property of both defendants, was the property of H. Sumida only, by whom it was used in a general merchandise business of which he was the sole proprietor. The business was conducted under the fictitious name of “H. ■Sumida Company,” and was managed by appellant’s brother, the defendant K. Sumida. The truck was used in the business for the purpose of delivering groceries and other general merchandise. At the time of the accident it was being driven by an employee of appellant, one G. Takeshita, who was employed to solicit for and take orders from customers and to make deliveries. Defendants’ main contention at the trial was that Takeshita was ill on the day of the accident, and that he was not then acting within the scope of his authority as agent for either defendant. In addition to an answer denying any liability on the part of either of them, defendants filed a cross-complaint wherein they alleged that the collision was due to plaintiff’s negligence, and prayed that the defendant H. Sumida, the owner of the truck, recover damages for the injuries which were received by his vehicle when it collided with plaintiff’s automobile.

[1] Before the jury retired it was furnished with certain blank forms of verdict. These forms were worded in such a way that the jury might make its verdict conform to any one of the three or four possible conclusions at which it was conceivable they might arrive. The jury filled out all but one of the blank spaces in one of the forms of verdict so provided them, and returned a verdict as follows: “We, the jury, find for plaintiff that defendants take nothing by their cross-complaint in this action. We, the jury, find for plaintiff against defendant H. Sumida, and fix plaintiff’s damages for injury to his automobile in the sum of $1,150.00. We, the jury, further find in favor of

Appellant earnestly insists that there is a fatal inconsistency between that part of the verdict wherein the jurors find that plaintiff recover of the defendant H. Sumida the sums of $1,150 and $300 and the concluding part wherein they declare that they “find in favor of defendant-that plaintiff take nothing.” From a consideration of the whole record we think it clear that this concluding sentence of the verdict must be taken as referring solely to the defendant K. Sumida, and that it is a finding or verdict in his favor only. If this be so then there is no conflict between the concluding sentence and those preceding portions of the verdict whereby the jurors find for plaintiff against appellant, the defendant H. Sumida, and fix the damages recoverable against him at $1,150 and $300, respectively. Id certum est quod certum reddi potest; [2] and a verdict is sufficiently certain if it can be made so by reference to the pleadings, the evidence or the record. (38 Cyc., pp. 1877, 1878.) In determining the sufficiency of the verdict the entire record should be searched and all the parts interpreted together, so that if possible a deficiency in one place may be cured by what appears in another. It appears from the record before us that the blank forms with which the jurors were furnished before retiring to deliberate were given them with certain appropriate instructions as to filling in the blank spaces. Thus, among other things, the jurors were instructed as follows: “If you find for plaintiff and' also find that the driver of said delivery car was in the employ of only one of said defendants at the time of said accident, then the form of your verdict should be: ‘We, the jury, find for plaintiff against defendant - [inserting name] and fix plaintiff’s damages for injury to his automobile in the sum of $-. We, the jury, further find in favor of plaintiff for loss of use of automobile against said defendant- [inserting the name] and fix plaintiff’s damages therefor in the sum of $-. And we further find in favor of defendant - [inserting the name of defendant not liable]. ’ ” This was the form of verdict adopted by the jury, showing thereby that they concluded that the

[3] The judgment recites the verdict and adjudges that plaintiff recover of the defendant H. Sumida a total of $1,450, together with plaintiff’s costs, but it fails to make any mention of the defendant K. Sumida, as to whom the jury had found, in effect, that the plaintiff take nothing; and no judgment has been entered either in favor of or against K. Sumida. A judgment is defined by our statute (Code Civ. Proc., sec. 577) to be “the final determination of the rights of the parties in an action or proceeding”; and appellant now claims that there can be but one judgment rendered on a verdict, and that such judgment should be one which finally determines the rights of all the parties in accordance with the verdict. Without doubt the defendant K. Sumida was entitled to have the judgment adjudicate that plaintiff take nothing as against him; but the failure to enter a judgment which determines the rights of K. Sumida as well as the rights of each of the remaining parties to the action was an irregularity which did not affect any of the substantial rights of H. Sumida, the only party who is here seeking a reversal of the judgment. Appellant is not prejudiced by the irregularity, and he therefore may not' successfully assign it as reversible error.

[4] The complaint alleges two distinct items of damage. It alleges, first, that the automobile was damaged in a certain sum, and, secondly, that plaintiff was further damaged by being deprived of' its use while it was undergoing repairs. Though the answer does not directly and specifi

It was established by uncontradicted evidence that plaintiff’s automobile did sustain injuries in the collision, and that he was deprived of its use while it was being repaired. The form of verdict given to the jury could not possibly have injured appellant when considered in the light of this evidence and in connection with the court’s whole charge. Elsewhere in its instructions the court was careful to say that it was the duty of the jury to determine whether plaintiff’s car was injured as the result of the alleged negligence, and that if it was injured, but-not totally destroyed, the measure of damages for such injury was the difference between the market value before and after the collision; also that if plaintiff was entitled to any damage for the loss of the use of his automobile the damage for such loss should be estimated upon the basis of the period of time it was necessary for plaintiff to repair his car, and that the damages therefor should not exceed the reasonable rental value during that period. In view of these instructions we fail to see how appellant could have been prejudiced by the suggested form of verdict.

[5] It next is contended that the evidence is insufficient to sustain the implied finding that Takeshita, the driver of

[6] Appellant’s next point is that there is no evidence to support the verdict for the amount awarded as damages by reason of plaintiff’s loss of the use of his automobile. Plaintiff did not have his car repaired until about two months after the accident, and it seems that when it was taken to the repair shop it took about a month to do the necessary work. For this deprivation of use during the month that his property was being repaired the jury awarded plaintiff the sum of $300: Plaintiff testified that prior to the accident the injured automobile had been used by him as a demonstration car in making sales of Chalmers automobiles, for which make of car he seems to have had the agency. He also testified that his damage by being deprived of the use of the car in his business during the time that the repairs were being made amounted to $400 a month. Another witness testified that the reasonable rental value of such a car during the time that the repair work was being done was $20 a day. [7] This testimony as to rental value was admissible, not as furnishing the exact measure of damages, but as a fact to be considered in ascertaining the extent of the injury due to plaintiff’s being deprived of the use of the car while it was undergoing repairs. (De ttmar v. Burns Bros., 111 Misc. Rep. 189 [ 181 N. Y. Supp. 146 ]; Meyers v. Bradford, 54 Cal. App. 157 [ 201 Pac. 471 ].) We think that the evidence as to rental value was sufficient to sustain a finding that plaintiff was damaged in the sum of $300 by reason of being deprived of the use of his car during the month that the needed repairs were being made.

[8] Lastly it is claimed that the amount allowed for injuries to plaintiff’s car, $1,150, was excessive and not warranted by the evidence. Plaintiff, who qualified as an expert, testified that in his opinion the market value of his automobile immediately prior to the accident was $1,950, and that immediately thereafter it was not worth more than $300 or $400. This was sufficient to justify a finding of $1,150 as the amount of damages to the car. Appellant calls our attention to the fact that after the car was repaired plaintiff refused an offer of $1,000 for it. But mani

We find no reversible error in the record. The judgment is affirmed.

Works, J., and Craig, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 8, 1923, and the following opinion then rendered thereon:

The petition for a rehearing in this action is denied.

The opinion contains the following paragraph assumed to be taken from 38 Cyc., pp. 1877, 1878, to wit: “And a verdict is sufficiently certain if it can be made so by reference to the pleadings, the evidence or the record.” We withhold our approval of this statement so far as it purports to say that the verdict can be made certain by reference to the evidence.

Shaw, C. J., Lawlor, J., Wilbur, J., Lennon, J., Waste, J., Seawell, J., and Kerrigan, J., concurred.