Murray v. Babb

STURTEVANT, J.

On the 7th day of February, 1937, the plaintiff was driving his Plymouth automobile northerly on the El Camino Real in front of Mills Memorial Hospital in San Mateo County. At the same time Keith D. Babb was driving his Chevrolet automobile southerly. Approximately in front of the hospital the two automobiles collided. Thereafter, J. H. Murray commenced an action to recover damages and named Keith D. Babb and Hazel Babb, his wife, as defendants. They appeared and answered the plaintiff's complaint and also filed a cross-complaint asking for damages.

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The plaintiff answered the cross-complaint and a trial was had before the trial court sitting with a jury. In his complaint the plaintiff charged that the defendants were negligent in the operation of their automobile. In their answer the defendants denied said allegations and alleged affirmatively that the plaintiff was guilty of contributory negligence. In their cross-complaint the defendants alleged that the plaintiff so negligently operated his automobile as to cause the accident, that the defendants suffered serious injuries, and they prayed for judgment against the plaintiff in the sum of $25,550. On the trial all of said issues were presented to the jury. Furthermore, a specific instruction on each of said allegations was given by the trial court. The jury returned a verdict, “We, the jury in the above entitled cause, find for the defendants eleven to one.” Both parties concede that the expression “eleven to one” means eleven jurors voted for the verdict and one juror voted against it. That concession is so clearly supported by the record no further attention will be given to the expression. The verdict therefore was in effect as follows: “We, the jury in the above entitled cause, find for the defendants.” From the judgment in their favor the defendants have appealed. Additional facts will hereinafter be stated as the necessity requires.

(1) The defendants contend the jury failed to find on the issues presented by their cross-complaint. That contention we think rests on a misconception of the force and effect of the verdict as rendered. In form it was a general verdict and as such it was one which the jury in its discretion was entitled to render. (Code Civ. Proc., see. 625.) As to the effect of a general verdict in the instant case, the law is equally clear. In 64 C. J. 1106 the author says: “As a general rule, if it is not inconsistent with special findings, a general verdict includes a finding of every material,, necessary, and issuable fact submitted to the jury in favor of the prevailing party ...” In