CARTER. I dissent.
The holding of the majority of this court in this and two .companion cases,* in effect, nullifies the statutory provision (Code Civ. Proc., § 657) which expressly authorizes the trial court to grant a motion for a new trial on “part of the issues,’’ when such new trial is limited to the issue of damages only in cases where the damages awarded are deemed inadequate by the trial court. While there is no code section which expressly specifies inadequancy of damages as a ground for granting a motion for a new trial, it has been held that it comes within the purview of insufficiency of the evidence to support the verdict or judgment (Code Civ. Proc., §657 [6]; 20 Cal.Jur. 104). Such being the case, the same rule should be applied to the granting of a motion on the limited issue of damages, as to all issues. The rule in the latter type of cases being that if there is a conflict in the evidence, even though the evidence is overwhelmingly in favor of the party against whom the motion is granted, the order of the trial court granting a new trial on insufficiency of the evidence will not be disturbed on appeal (Brignoli v. Seaboard Transp. Co., 29 Cal.2d 782, 791 [178 P.2d 445] ; Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 358 [170 P.2d 465] ; Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305 [163 P.2d 689). The same rule is applicable where a new trial is granted on the ground of erroneous instructions to the jury and it is claimed by the party against whom the new trial was granted that the error was not prejudicial (Mathers v. County of Riverside, 22 Cal.2d 781, 786 [141 P.2d 419]; Fin[472]ney v. Wierman, 52 Cal.App.2d 282 [126 P.2d 143] ; Thompson v. California Const. Co., 148 Cal. 35 [82 P. 367] ; Pettigrew v. O’Donnell, 32 Cal.App.2d 502 [90 P.2d 93]; Fennessey v. Pacific Gas & Elec. Co., 10 Cal.2d 538 [76 P.2d 104] ; Simmons v. Lamb, 35 Cal.App.2d 109 [94 P.2d 814]). From the foregoing it necessarily follows that the same reasons exist for sustaining the trial court in granting a new trial limited to the issue of damages only as to the granting of a new trial on all issues on the ground of insufficiency of the evidence, or that prejudice resulted from an erroneous instruction.
The majority concede there is wisdom and merit in the legislation which authorizes a trial court to grant a new trial on limited issues. This should be obvious. Then the majority proceed by these three decisions to deprive the trial court of the power conferred upon it by statute to grant a new trial on the issue of damages only where the damages awarded are obviously inadequate.
These decisions take a step backward in our judicial procedure. They are the products of that same reactionary philosophy which has been invoked by a majority of this court to curtail the power of trial judges in their effort to accord to the less fortunate a greater degree of equal justice under law. (See Sanguinetti v. Moore Dry Dock Co., 36 Cal.2d 812 [228 P.2d 557].) There can be no doubt that the sole and only basis for these decisions is the fear by the majority that the plaintiffs in these cases might receive greater awards of damages than if the issue of liability was retried. To prevent this result the majority is willing to destroy the effectiveness of this remedial legislation. What is the court-made rule which the majority apply to accomplish this result? It seems to be that if it appears to the majority that there is a conflict in the evidence as to liability, and the damages awarded are inadequate, it is an abuse of discretion for the trial court to grant a motion for a new trial on the issue of damages only. Where does this leave the trial court? Or, a question of greater moment is, what should a plaintiff do under such circumstances? Obviously, in the face of these three decisions, a trial judge or trial lawyer would be stupid to consider retrying anything other than all issues in any personal injury action under such circumstances, even though they had positive information that the jury had no difficulty in determining the issue of liability and that the issue of damages was the only problem which concerned it. And I [473]cannot refrain from expressing my utter amazement at the ineptness of the majority in attempting to rationalize the deliberations and reactions of the juries in these cases. Obviously, such rationalization is not the function of this court. If it must be done, it is exclusively a function of the trial court. Those who have had experience in the trial of jury eases know that many factors influence the ultimate decision reached, and the trial court is in a much better position than this court to know what factors prevailed. Some jurors have fixed views with respect to economics, while others have racial or religious prejudices, which may influence them adversely to the cause of justice. While the record might not disclose such leanings, they would be apparent to an astute trial judge. Yet the majority of this court say, that in cases such as we have here, a trial judge is guilty of an abuse of discretion if he grants a new trial on the issue of damages only, even though he is satisfied that the inadequacy of an award of damages was due to one or more of the factors above mentioned, or some other factor which had no bearing whatever on the issue of liability. For this court to invade the province of the trial court in this field is as unwise as it is unfortunate.
For example, a man with an earning capacity of $300 per month, and a life expectancy of 20 years, who loses a leg in an automobile accident and is thereby incapacitated from pursuing his occupation, is awarded $10,000 by a jury. At the present value of money this would appear to be inadequate. But, would the majority of this court so hold if a trial judge denied a motion for a new trial made by plaintiff on the ground that the award was inadequate? It certainly would not. But, if the trial court would grant such a motion on the issue of damages only, the majority would obviously reverse if there was a conflict in the evidence on the issue of liability. In other words, the majority would hold the award inadequate as a matter of law in the latter instance, but not so if the motion for a new trial were denied or granted on all issues. The foregoing results are inescapable under the specious reasoning in the majority opinions in these three cases. The only thing that is made clear by these decisions is that the majority do not approve of a trial court granting a motion for a new trial on the issue of damages only in a case where the damages awarded are inadequate and there is a conflict in the evidence on the issue of liability. [474]In such a ease, the majority say, there must he a new trial of all the issues or none at all.
Of course, if a new trial were granted on the issue of damages only in a case where the trial court was of the opinion that the damages awarded were excessive, the majority would not disturb such an order. They would not do so for the reason that they would fear that proof of the facts establishing liability might result in a larger award of damages to the detriment of the defendant. (Fuentes v. Tucker, 31 Cal.2d 1 [187 P.2d 752].)
The majority opinion states “that a request for such a trial (on the issue of damages only) should be considered with the utmost caution, ’ ’ citing Donnatin v. Union Hardware & Metal Co., 38 Cal.App. 8 [175 P. 26, 177 P. 845] and Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518 [67 P.2d 398], but in both of these cases the trial court denied plaintiff’s motion for a new trial and the appellate court was asked to reverse the judgment and direct a new trial on the issue of damages only. Obviously, it cannot be said that in such a case the trial court has exercised a discretion but has simply held that there was no error in the record justifying the granting of a motion for a new trial. The majority opinion also states “that any doubts (in ruling on a motion for a limited new trial) should be resolved in favor of granting a complete new trial,” citing Keogh v. Maulding, 52 Cal.App.2d 17 [125 P.2d 858]. But the majority opinion does not state whether such doubts should be entertained by the trial court or the appellate court. If the trial court has a discretion in passing upon a motion for a limited new trial, as the majority opinion concedes, then any doubt which may exist in the minds of an appellate court as to whether such limited new trial should have been granted, should be resolved in favor of the action of the trial court. Otherwise, it is not the discretion of the trial court which is being exercised in ruling on the motion for a limited new trial, but the discretion of the appellate court, which, under our judicial system has no power to review such a ruling of the trial court unless there is a gross, manifest and unmistakable abuse of discretion. (Hicks v. Ocean Shore Railroad, Inc., 18 Cal.2d 773 [117 P.2d 850] ; Estate of Everts, 163 Cal. 449 [125 P. 1059]; Conroy v. Perez, 64 Cal.App.2d 217 [148 P.2d 680] ; People ex rel. Dept. of Public Works v. McCullough, 100 Cal.App.2d 101 [223 P.2d 37] ; Ona v. Reachi, 105 Cal.App.2d 758 [233 P.2d 949] ; County of Los Angeles v. Bitter, 103 Cal.App.2d 385 [229 [475]P.2d 466]; Perry v. Fowler, 102 Cal.App.2d 808 [229 P.2d 46]; Parks v. Dexter, 100 Cal.App.2d 521 [224 P.2d 121]; J. Levin Co. v. Sherwood & Sherwood, 55 Cal.App. 308 [203 P. 404] ; Rigall v. Lewis, 1 Cal.App.2d 737 [37 P.2d 97] ; Spencer v. Nelson, 84 Cal.App.2d 61 [190 P.2d 40] ; Wold v. League of the Cross, 107 Cal.App. 344 [290 P. 460] ; Amore v. Di Resta, 125 Cal.App. 410 [13 P.2d 986] ; Johnstone v. Johnson, 38 Cal.App.2d 700 [102 P.2d 374]; Adams v. Hildebrand, 51 Cal.App.2d 117 [124 P.2d 80]; Crandall v. McGrath, 51 Cal.App.2d 438 [124 P.2d 858]; Bauman v. San Francisco, 42 Cal.App.2d 144 [108 P.2d 989] ; Pacific Tel. & Tel. Co. v. Wellman, 98 Cal.App.2d 151 [219 P.2d 506]; Tumelty v. Peerless Stages, 96 Cal.App. 530 [274 P. 430] ; Cox v. Tyrone Power Enterprises Inc., 49 Cal.App.2d 383 [121 P.2d 829] ; McNear v. Pacific Greyhound Lines, 63 Cal.App.2d 11 [146 P.2d 34] ; Henslee v. Fox, 25 Cal.App.2d 286 [77 P.2d 307] ; Zeller v. Reid, 26 Cal.App.2d 421 [79 P.2d 449]; Martin v. Donohue, 30 Cal.App.2d 219 [85 P.2d 913] ; Ohran v. Yolo County, 40 Cal.App.2d 298 [104 P.2d 700]; Tornell v. Munson, 80 Cal.App.2d 123 [181 P.2d 112]; Woods v. Eitze, 94 Cal.App.2d 910 [212 P.2d 12] ; Tripcevich v. Compton, 25 Cal.App.2d 188 [77 P.2d 286].)
In the case of Crandall v. McGrath, supra, the court clearly and succinctly stated the basis for the rule announced in the above cited cases in the following language: “The trial judge having heard all the evidence in a personal injury action, and having been convinced, he is in a peculiar position to know that nothing could be gained by relitigating the issue of negligence though dissatisfied with the award of damages. His decision in granting a new trial on the single issue of damages is the exercise of discretion and should ordinarily be final.” In the case of Cox v. Tyrone Power Enterprises Inc., supra, Mr. Justice Schauer, then a member of the District Court of Appeal, in speaking for the unanimous court in that case, took a position diametrically opposed to the position of the majority in the case at bar when he said, at page 390: “While the evidence amply supports the conclusion that the damages awarded were inadequate, we do not find that it is such as to justify us in concluding, contrary to the trial judge, that the jury compromised the question of negligence by its inadequate award of damages. Such a conclusion on this record would be more speculative than inferential. The verdict here was for $1,250 in response to plaintiff’s claim for $450 doctors’ bills, $361 hospital bill, and general damages. [476]The items for the doctors and the hospital were not disputed, but the extent of the injuries was seriously contested. The verdict not only awards recovery for all the special damages but includes $439 for general damages. That the general damage award is disproportionatetly small seems obvious and its inadequacy is the basis for the new trial order. But that merely because we regarded the award as too low we must also infer that jurors stultified themselves by bargaining inadequate damages for unjustified liability is a non sequitur.” (Emphasis added.)
The majority opinion ignores what is said to be the guiding principle in cases of this character: ‘ ‘ The guiding principle is that, although a verdict ought not to stand which is tainted with illegality, there ought to be but one fair trial upon any issue, and that parties ought not tobe compelled to try anew a question once disposed of by a decision against which no illegality can be shown. Thus, the parties and the state have been saved the expense, annoyance, and delay of a retrial of issues once settled by a trial as to which no reversible error appears.” (Emphasis added.) (98 A.L.R. 941.) Notwithstanding the rule announced in the above cited cases, many of which are cited in the majority opinion, the majority in the case at bar hold “that an abuse of discretion is shown when the damages are inadequate, the record discloses that the issue of liability is close, and other circumstances indicate that the verdict was probably the result of prejudice, sympathy, or compromise or that for some other reason the liability issue has not actually been determined.” No authorities are cited in support of the foregoing statement, and it is clearly contrary to the rule announced in all of the above cited cases.
In a very few eases it has been held that the trial court committed an abuse of discretion in granting a motion for a new trial on the issue of damages only. (Wallace v. Miller, 26 Cal.App.2d 55 [78 P.2d 745] ; Keogh v. Maulding, 52 Cal.App.2d 17 [125 P.2d 858]; Shurman v. Fresno Ice Rink Inc., 91 Cal.App.2d 469 [205 P.2d 77] ; Crawford v. Alioto, 105 Cal.App.2d 45 [233 P.2d 148].) The last cited cases are out of harmony with the rule that has been generally adopted and followed by this court and the District Courts of Appeal as appears from the long line of decisions above cited, all of which hold that to justify reversal of an order granting a new trial on the issue of damages only there must be a gross, manifest and unmistakable abuse of discretion on the part of the [477]trial court in granting such motion. I shall demonstrate from the record in this case that there is no justification whatever for the holding of the majority that the trial court abused its discretion in this case.
It is claimed by the majority that this is a close case on liability and the jury seemed to have some difficulty in arriving at its verdict. There are factors present which preclude that result. The question of liability was determined by the trial court to be clear rather than close and the other judgments in the ease are res judicata on that issue; the only confusion on the part of the jury was with reference to the limited liability of an owner of a car under section 402 of the Vehicle Code.
There are five actions here involved which were consolidated for trial, the instant one for personal injuries and four for the deaths of five persons. The injuries and deaths were all caused by the same negligence of defendants and the verdicts are against the same defendants. Except for damages, identical issues were presented in each case. Defendants’ motion for a new trial on the ground of insufficiency of the evidence was denied. Plaintiff, Denny Leipert’s, motion for a new trial on inadequacy of the damages was granted on that issue only. In denying defendants’ motion for a new trial on the ground of insufficiency of the evidence it must be presumed that the trial court weighed the evidence on liability and, like the jury, concluded it was ample. It is said: “The trial court may, and indeed should, grant a motion for new trial where one of the grounds of the motion therefor is insufficiency of the evidence, if it is satisfied that the verdict or decision is not supported by, or is contrary to, the weight of the evidence, although the evidence is conflicting on the point or points at issue, since, in passing upon a motion for new trial, the trial court must weigh and consider the evidence of both parties, and determine for itself the just conclusion to be drawn. . . . The same rules apply to an order denying a new trial, which will be affirmed where the evidence was substantially' conflicting and there was sufficient evidence to sustain the verdict.” (20 Cal.Jur. 117.) The court said in Mosekian v. Ginsberg, 122 Cal.App. 774, 777 [10 P.2d 525] : “When the question of the insufficiency of the evidence to justify the verdict is presented on a motion for a new trial, it becomes the duty of the trial judge to inquire into the question of sufficiency and to grant a new trial if in his judgment the evidence is insufficient to justify the verdict, or to [478]deny the motion for a new trial if in his opinion the evidence is sufficient to sustain the verdict. . . . There is a clear disstinction between the duties and powers of a trial court in passing upon a motion for a new trial upon the grounds heretofore mentioned and those of an appellate court in reviewing the matter on appeal from the judgment. The appellate court is not concerned with questions of preponderance of the testimony or weight of the evidence; the only matter for its determination is whether or not there is evidence which, if given its fullest effect, is legally sufficient to support the decision. On the other hand, the trial court may weigh and consider the evidence on behalf of both parties and determine for itself the just conclusion to be drawn from it. The question of the insufficiency of the evidence to justify the verdict is addressed to the sound legal discretion of the trial court. . . . The courts of last resort of this state have repeatedly held that insufficiency of the evidence to justify a verdict is a ground for a new trial which is pecularily within the discretion of the trial court and its order either granting or denying a new trial will not be disturbed on appeal unless it appears that there was a manifest abuse of discretion.” (Emphasis added.)
As the trial court’s denial of the motion for a new trial, made on the ground of insufficiency of the evidence, included a weighing of the evidence, this court cannot on appeal ignore its determination. It cannot, as does the majority opinion in effect say, that the question of liability is close. By so doing, it is, in effect, weighing the evidence. It is more than a matter of discretion with the trial court. It has weighed the evidence on liability and found it adequate. Where the evidence is conflicting, this court cannot set aside that determination, but that is the effect of the majority decision reversing the order granting a limited new trial to plaintiff and requiring a new trial on all the issues. That result is not reached here because neither plaintiff nor defendants want a new trial on all the issues but the ease stands as authority for that proposition.
It is stated in the majority opinion that a large discretion rests with the trial court in determining whether a limited new trial should be granted, but that here there was an abuse of discretion. It is difficult to understand how this court can say there is an abuse of discretion when it cannot view the case from the same standpoint as the trial court. As seen, the latter court weighed the evidence and decided [479]that liability had been established. This court may not weigh the evidence. Therefore, it may not say that the trial court abused its discretion—that it read the dial on the scales wrongly.
It will be recalled that no appeal was taken from the judgments in the death actions. They are, therefore, final determinations as to defendants’ liability in each and all of these actions. It would be idle to send the case back for a new trial on all of the issues, including liability, because the rule of res judicata would be applied, and there would be nothing left to try except damages—the very issue embraced in the limited new trial which the trial court granted. That res judicata is pertinent to the ease is clear from the principles enunciated in Bernhard v. Bank of America, 19 Cal.2d 807, 812 [122 P.2d 892], where this court said: “There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation.
“No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend. (See 7 Bentham’s Works [Bowering’s ed.] 171.) Many courts have abandoned the requirement of mutuality and confined the requirement of privity to the party against whom the plea of res judicata is asserted. . . .
“In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?” All three questions are answered in the affirmative in the instant case. The identical issue is whether defendant driver was negligent and was his negligence the proximate cause of the collision. The answer is yes in the four death actions. There are four final judgments on the merits of that issue. The party against whom the prior adjudications are asserted is the same.
It is said that the verdict was the result of a compromise because the jury wanted additional instructions on liability and had difficulty in arriving at a‘ verdict. An examination of the record reveals that in arriving at a verdict the diffi[480]eulty was apparently the amount allowable against an owner under section 402 of the Vehicle Code. It is true that after the jury had been deliberating for a time they requested the reading of the testimony of a witness on liability, but thereafter their sole concern was the amount of damages and how they should be apportioned among the various plaintiffs within the $10,000 limit. They were first asked by the court how they stood numerically and they replied 9 to 3 and then told to finish their verdict by determining the “balance of the matters presented to you.” Verdicts were then returned but they were too large as against the owner, they being for $5,000 in each of three of the death actions and $10,000 in the fourth, or a total of $25,000. That for Denny Leipert was for $4,000, and for his father $1,000 thus increasing the total to $30,000. They were told that the verdicts were incomplete because they did not limit the owners’ liability. When they were polled the indication was that the amounts awarded, and not liability, was the reason for diverse answers. For example, one juror said: “We wanted to have some instruction there, but you said it wouldn’t do any good, so we were confused on the money question.” The court explained the $10,000 limitation and there was a discussion between the court and jurors on the subject. Later they were asked if they thought they could reach a verdict, to which negative replies were given, and then as the record discloses: “The Court : The jury has been out for twelve hours, with some slight rest, and they feel they are getting farther apart rather than closer together.
“Mr. Johnston: If the court please, I wonder if inquiry might properly be made towards determining whether there is some question of law and its application to the law?
“The Court (To Jury) : Well, is it some particular problem of law that bothers you?
“Juror Sheik : Well, I believe the most confusion arises by not asking for some more instructions about the money matter. We had agreed upon the negligence and we came to th.e point about the $10,000.00 which has confused us, and suggestions were made for more instructions, and they didn’t want to ask for any more instructions because we didn’t think they would give the instructions we wanted.” After further discussion about the amounts the jury again retired. They then returned verdicts which apportioned the $10,000 as follows: $1,700 each in three of the death actions and $3,400 in the fourth; $500 to Denny and $1,000 to his father, [481]showing that they had finally grasped the method of procedure. Thus, I believe it is clear that the record points away from a compromise verdict much stronger than toward it. The issue of liability was settled, and after that, the confusion arose with respect to amounts and apportionment. In any event it is beyond this court’s authority to declare that the trial court abused its discretion in accepting one of two possibilities, that is, that the verdict was not the result of a compromise on the issue of liability, for the only disagreement on the verdict related to the apportionment of the amount of damages, rather than on liability.
I would, therefore, affirm the order granting a new trial on the issue of damages only.
See Rose v. Melody Lane, post, p. 481 [247 P.2d 335], and Cary v. Wentzel, post, p. 491 [247 P.2d 341].