King v. Unger , 35 Cal. App. 2d 192 ( 1939 )

MOORE, P. J.,

Concurring. — I concur.

Plaintiff’s only injuries were those caused by defendant Unger. The jury assessed the damages flowing therefrom at $5,341.71. This being the only damage fixed for the only injuries received, it follows that the owner-defendant must pay the portion thereof predetermined by statute as the owners’ obligation. To hold otherwise were to substitute the arbitrary notion of a jury for the law of the land. Courts must be on their guard to see that rights established by statute be not abridged or allowed to suffer diminution.

The trial court having refused to follow the proper procedure upon the return of the insufficient verdict after plaintiff’s request (Kerrison v. Unger, 135 Cal. App. 607 [27 Pac. (2d) 927]) and the defendants having protested against such further procedure, there is nothing left for this court to do except to authorize that which should have been done by the trial judge, and because of such protest of defendants it does not lie with them on this appeal to make objection now. (Brown v. Regan, 10 Cal. (2d) 519 [75 Pac. (2d) 1063].)