Opinion
Rehearing Granted Oct. 7, 1929
Appeal from Superior Court, San Mateo County; George H. Buck, Judge.
Action by Hazel Milo by A. Milo, her guardian ad litem, against Leland S. Prior. From that part of judgment for defendant without prejudice, defendant appeals. Reversed, with directions.
COUNSEL
Corbet & Selby, of San Francisco, for appellant.
Hubbard & Hubbard, of San Francisco, for respondent.
OPINION
KOFORD, P.J.
This action was for damages for personal injuries suffered by plaintiff in an automobile collision alleged to have been caused by the negligence of defendant. This action and two other actions between other parties based upon the same automobile collision were tried together upon the same evidence by the court sitting without a jury. After the causes were submitted and briefed, the court gave judgment in each case, denying relief to each of the several plaintiffs and cross-complainants. In this action judgment was announced for defendant without prejudice. Thereafter both plaintiff and defendant waived findings of fact, and after that a judgment was signed by the judge and filed. After stating the usual recitals and waiver of findings, it ordered judgment in favor of defendant "without prejudice to plaintiff’s bringing a new action herein if so advised." Defendant appeals from that part of the judgment alone which we have just quoted. The record contains the judgment roll of this case and the reporter’s transcript of the testimony taken at the trial of the three cases, but does not contain the judgment roll in the other two cases nor any findings of fact.
At the time of the collision, the plaintiff, a minor, was riding in an automobile with Norma Furlong and Harry Deller, a minor, who was driving. The other automobile in the collision was driven by the defendant, Leland S. Prior, who was accompanied by his wife, Florence M. Prior. This action was by Hazel Milo against Leland S. Prior alone. The defendant denied negligence, and alleged negligence of Deller and contributory negligence of plaintiff. The other two actions, according to the briefs, were as follows: First, Leland S. Prior against Deller and his parents, for personal injuries and damage to Prior’s automobile. In that action Deller’s father filed a cross-complaint for damage to the car driven by his son Harry Deller. Second, Florence Prior against Deller and his parents for personal injuries. In that action Deller’s father also filed a cross-complaint for damages to his car. In those two actions no one was awarded damages. This might mean that the court decided that both drivers were negligent or that neither was negligent. A final judgment upon the merits for defendant in Hazel v. Leland S. Prior might also mean either that Prior was not negligent or that both Hazel Milo and Leland S. Prior were negligent.
Appellant contends that, the action having been fully tried and submitted, the judgment should have been a final judgment between the parties, and not merely a judgment without prejudice. He cites a number of California cases to the effect that a plaintiff may not dismiss an action without prejudice after the case has been tried and submitted, and from this argues that the court cannot decide the cause without prejudice after it has been submitted. Simply because a plaintiff is not permitted by the Code (Code Civ.Proc. § 581, subd. 1) to dismiss the action after its submission, it does not follow that in no case and under no circumstances may a court give a judgment without prejudice. Respondent cites a number of cases to the point that, where a judgment is not upon the merits or expressly provides that it is without prejudice, such judgment is not res adjudicata, the reservation itself being res adjudicata and prevents the raising of any question as to the right to maintain a subsequent suit. These authorities, which are collected in 34 Corpus Juris, 797, note 65, show, however, that such a reservation has been treated as valid in many instances. In Ahlers v. Smiley, 11 Cal.App. 343, 104 P. 997, such a reservation in a judgment is referred to and its effect considered, although the propriety of the reservation is not directly passed upon. The reservation there was in respect to an issue of damages which could not be decided on account of the insufficiency of the pleadings. Many judgments are not res adjudicata in whole or in part. It will be sufficient for this case to say that they include judgments which are not upon the merits. 15 Cal.Jur. 124 et seq. Such judgments are without prejudice, and it is proper, although perhaps not necessary, for the judgment itself to so state. Lloyd v. Imperial Mach. Stamping & Welding Co., 224 Mass. 574, 113 N.E. 456. A cause which is tried and submitted only upon the merits, however, should not result in a judgment without prejudice. Parsons v. Riley, 33 W.Va. 464, 10 S.E. 806.
There was no motion for dismissal or nonsuit in this case. No findings were made, and so we cannot look to them to find the reason for the reservation. Respondent has suggested no reason for the reservation which he is willing to support, and the reservation should not be affirmed for any technical points we might be able to find, but which were not raised or mentioned in any way. The appeal is therefore well taken. The part of the judgment appealed from, however, is not entirely void, because such a reservation may be properly made where the evidence and proceedings at the trial warrant such a judgment.
Supplementary briefs were filed in this court in which the appellant contends that the judgment of this court upon this appeal should have only the effect of eliminating that part of the judgment appealed from and leave the remainder stand as a modified judgment so that there would be a final and nonappealable judgment in favor of the defendant upon the merits. Respondent goes to the other extreme. She contends that the evidence wholly fails to show any negligence on her part, but that the evidence, as well as the court’s decision in the companion cases, shows that the defendant was negligent. She therefore asks this court to enter judgment in her favor, or at least that an entire new trial be ordered by this court. As the respondent is not an appellant here, we may not adopt either of these courses upon assignment of errors by her. On the other hand, she should not be penalized for not having taken an appeal from the judgment or from a part thereof when it was satisfactory to her as a whole. For this reason we should not adopt appellant’s suggestion, as it would have the effect of depriving respondent of her right to assign errors and to appeal from a final judgment upon the merits entered against her in this court for the first time. The rule that only the part of the judgment appealed from will be reviewed by the appellate court is subject to an exception when such portion is not severable from the remainder of the judgment. In re Yoder, 199 Cal. 699, 704, 251 P. 205; Whalen v. Smith, 163 Cal. 360, 125 P. 904, Ann.Cas.1913E, 1319. In the instant case the part appealed from is not severable. The reservation enters into and qualifies each and every part of the entire judgment. Wanzer v. Self, 30 Ohio St. 378. The merit of this appeal is, not that such a reservation may never be made, but that the appellant was entitled, according to the record presented here, to have a judgment entered upon the merits either for or against him instead of a judgment which amounts only to a dismissal or nonsuit. According to the record, the case was fully tried and submitted upon its merits, but no judgment upon the merits has been rendered. A judgment which is erroneous because not on the merits is the only one which has been rendered.
The judgment is therefore reversed, and it is ordered that the trial court proceed to render and enter a new judgment upon the merits in the action according to the views herein expressed.
We concur: STURTEVANT, J.; NOURSE, J.