I dissent.
The order granting plaintiff a new trial on the issue of damages should be affirmed. The trial court has exercised its discretion and determined that the evidence on liability was clearly sufficient (it denied defendants’ motion for a new trial) and also that a limited new trial (damages only) was proper and not unjust to defendants—that there was no indication of a compromise verdict by the jury. I have discussed that phase of this case in my dissent in Leipert v. Honold (ante, p. 471), and here adopt the views expressed there.
There is an additional factor here presented. The sole appeal was from the order granting plaintiffs a limited new trial; no appeal was taken from the judgment. The majority opinion nevertheless reverses the entire judgment on the ground that the issue of liability and damages are inseparable. With that I disagree. Indeed, this court held in Fuentes v. Tucker, 31 Cal.2d 1 [187 P.2d 752], that it was error to admit evidence of liability where defendant admitted he was liable for the injuries suffered by plaintiff but denied the amount of damages claimed. Hence, the holding in the Fuentes case was not only that liability is severable from damages but it is error for the court to fail to treat it so. We have a similar question here, because by not appealing from the judgment, defendant is now in the position of admitting liability. The similarity between the rule in the Fuentes case and granting a new trial on the issue of damages alone was pointed out in Tumelty v. Peerless Stages, 96 Cal.App. 530, 535 [274 P. 430], where the court was discussing the latter question: “It is not at all rare or unusual for defendants in negligence cases to concede liability at the outset of a trial and to put before the jury the single question of the extent of plaintiff’s damage. On principle there would seem to be no difference between the elimination of the issue of negligence by voluntary act of the defendant, and its elimination by the trial judge after the defendant has had his day in court on *614such issue, and the trial judge, who has heard all the evidence, has become convinced that nothing could be gained by relitigating that issue, and no prejudice suffered by not relitigating it.” (Emphasis added.)
It has been held repeatedly that in personal injury and wrongful death actions the issue of liability is severable from the issue of damages, and a new trial on the latter issue alone is proper. (Tumelty v. Peerless Stages, supra, 96 Cal.App. 530; Cox v. Tyrone Power Enterprises, Inc., 49 Cal.App.2d 383 [121 P.2d 829] ; Bauman v. San Francisco, 42 Cal.App.2d 144 [108 P.2d 989] ; Amore v. Di Resta, 125 Cal.App. 410 [13 P.2d 986] ; Brush v. Kurstin, 11 Cal.App.2d 258 [53 P.2d 777] ; Bellman v. San Francisco H. S. Dist., 11 Cal.2d 576 [81 P.2d 894]; Hofart v. Southern Pac. Co., 33 Cal.App.2d 591 [92 P.2d 436]; Crandall v. McGrath, 51 Cal.App.2d 438 [124 P.2d 858]; Adams v. Hildebrand, 51 Cal.App.2d 117 [124 P.2d 80] ; Rigall v. Lewis, 1 Cal.App.2d 737 [37 P.2d 97] ; Henslee v. Fox, 25 Cal.App.2d 286 [77 P.2d 307].) As said in Bauman v. San Francisco, supra, 42 Cal.App.2d 144, 160: “In its brief it is argued that the question of damages is ‘so interwoven with the question of liability that the issues should not be segregated. ’ The issue of liability is clearly severable from the issue as to the amount of damage. The two issttes are in no way connected. Since 1929, section 657 of the Code of Civil Procedure has expressly authorized the trial court in a proper case to grant a new trial on the issue of damages alone.” (Emphasis added.) And the same is true where there is a reversal on appeal where the basis therefor goes to the damage question only. (Southern Pac. Mill. Co. v. Billiwhack, etc. Farm, Ltd., 50 Cal.App.2d 79 [122 P.2d 650] ; Moeller v. Market St. Ry. Co., 27 Cal.App.2d 562 [81 P.2d 475]; Bellman v. San Francisco H. S. Dist., 11 Cal.2d 576 [81 P.2d 894] ; Pretzer v. California Transit Co., 211 Cal. 202 [294 P. 382] ; Paul v. Williams, 64 Cal.App.2d 696 [149 P.2d 284] ; Brewer v. Second Baptist Church, 32 Cal.2d 791 [197 P.2d 713]; Bishop v. Kelley, 100 Cal.App.2d 775 [224 P.2d 814] ; Hollywood Cleaning & P. Co. v. Hollywood L. Service, Inc., 217 Cal. 131 [17 P.2d 712] ; 5 C.J.S., Appeal & Error, § 1935.)
In an endeavor to escape the effect of the holding in these cases the majority opinion attempts to sidestep them by saying the jury has “inextricably interwoven those issues”—liability and damages. Although the jury instructions do not appear in the record they undoubtedly included the standard instruction that the jury was to give no consideration to the question *615of damages until it had found liability. (See Cal. Jury Instructions, B.A.J.I., Instructions Nos. 112, 113, 114.) And that damages could not be allowed unless there was liability. It is presumed that the jury followed those instructions. (2 Cal.Jur. 871; 24 Cal.Jur. 795-796.) A jury may be said to have disregarded the instructions only in the event that the evidence does mot support the verdict. (Commonwealth Bonding etc. Co. v. Pacific Elec. R. Co., 42 Cal.App. 573 [184 P. 29] ; Fidelity & Casualty Co. v. Llewellyn Iron Works, 42 Cal.App. 766 [184 P. 402]; 24 Cal.Jur. 796.) Hence, there is no basis for the conclusion that the verdict was a compromise, and, as pointed out in my dissent in Leipert v. Honold, ante, p. 471 [247 P.2d 324], that issue was resolved in accordance with the presumption by the trial court.
While the majority accuse the jury of compromising the issue of liability in this case, in my opinion the majority of this court is guilty of rendering a decision based upon a compromise, in the decision it has rendered today in this case. It will be remembered that in a former decision in this case the majority of this court held that since there was no appeal from the judgment this court was without jurisdiction to review the judgment and was limited to a consideration of defendant’s appeal from the order of the trial court granting plaintiff’s motion for a new trial on the issue of damages only. It thereupon reversed this order which meant that the judgment of $1,000 was reinstated and plaintiff had no further opportunity to obtain redress for the injuries suffered by him as the result of the negligence of the defendant. (See [Cal.] 240 P.2d 298.)
In my dissent to the former decision of this court in this case I stated: “In view of the foregoing, for this court to find the trial court guilty of an abuse of discretion in granting a new trial on the issue of damages only, and reverse the order, thus entitling the defendant to recover his costs on appeal, with no opportunity for the plaintiff to ever retry the case or obtain further redress, is, to my mind, not only unsound from the standpoint of legal reasoning, but is so cruel and inhuman as to shock the sense of justice of all who may read the majority opinion.” ([Cal.] 240 P.2d 303.)
A petition for rehearing was filed by plaintiff and a rehearing was granted by vote of the following members of this court: Chief Justice Gibson, Justice Shenk and myself. Justice Edmonds being absent from the state, Justice Dooling of the First Appellate District was assigned to sit in his place, and *616Justice Dooling also voted for a rehearing. Justices Traynor, Sehauer and Spence all voted against the granting of a rehearing. Anticipating that plaintiffs petition for a rehearing would he denied, I prepared a dissenting opinion which I intended to file upon the entry of the order of denial which was as follows:
“I dissent from the order denying a rehearing in this case and feel constrained to write an opinion expressing my views because of certain points raised in Respondent’s Petition for Rehearing which were not discussed in either the majority or dissenting opinions now on file.
“Respondent’s Petition for Rehearing calls attention to the fact that the judgment, entered in the trial court, conclusively established the liability of the defendant, and is now final since no appeal was taken therefrom and is res adjudicata on the issue of defendant’s negligence and the absence of contributory negligence on the part of the plaintiff. In other words, there is a final judgment which establishes defendant’s liability for the injuries suffered by plaintiff and the majority opinion holds that there is ample evidence to support this judgment. The only appeal in this case is from the order granting plaintiff’s and respondent’s motion for a new trial on the issue of damages only. This presents a question as to the scope of review of this court on the appeal from such order. It appears to be the settled rule that in reviewing an order of this character the only issue involved is one of damages; that is, the amount to which plaintiff is entitled in view of the nature and extent of the injuries suffered by him, the extent of the disability, if any, which will result from such injuries and the amount necessarily expended and which he will be required to expend in the future because of such injuries as disclosed by the evidence. Upon a consideration of this evidence this court must determine whether or not the trial court abused its discretion in granting plaintiff’s motion for a new trial on the issue of damages only. Since the judgment established the liability of the defendant for plaintiff’s injuries and no' appeal has been taken from the judgment, this court has no power to review the issue of liability as that issue is not before this court on this appeal. The defendant, by not appealing from the judgment, is conclusively presumed to be satisfied with it and his only concern is the retrial of the issue of damages.
‘ ‘ This proposition is clearly stated in 2 Cal.Jur., page 828. ‘Upon an appeal from an order upon a motion for a new trial, *617when allowed, the appellate court is limited in its review of the action of the trial court to the grounds upon which such a motion was based, and upon which the new trial was asked in the particular case. The sole object of an appeal from an order granting a new trial is to determine whether the court erred in granting the motion on the record made up by the moving party, in respect to any one or all the grounds stated in the specifications presented by the moving party. And nothing can be considered on the appeal that does not go to show that a re-examination of fact is necessary for the protection of the rights of the appealing party. This precludes a review of errors apparent upon the face of the judgment-roll, such as, for example, the insufficiency of the complaint or findings to support the judgment. ’ This proposition is not discussed in the majority opinion and it is evident that those who concurred therein did not give consideration to respondent’s contention that the issue of liability was settled by the final judgment, and therefore, the scope of the review on the appeal from the order granting the motion for a new trial on the issue of damages only is limited to matters relating to that issue.
“Obviously, the plaintiff would not appeal from the judgment as it was in his favor on the only issues which were determined by it after the entry of the order granting plaintiff’s motion for a new trial on the issue of damages only. The defendant was the only party aggrieved by the judgment as it determined that defendant was guilty of negligence which was the proximate cause of the injuries suffered by the plaintiff and established defendant’s liability for such injuries.
“The theory of the majority opinion is that the order granting plaintiff’s motion for a new trial on the issue of damages only must be reversed because the jury failed to determine the issue of liability. The logical result of this reasoning is that the judgment is void because the issue of liability was not determined, and therefore, no valid award of damages could be made. However, the settled rule is that the issue of liability can only be reviewed upon an appeal from the judgment, and if no appeal is taken, and the judgment becomes final, it is res adjudicata and cannot be collaterally attacked. The majority holding in this case amounts to a collateral attack upon the judgment. To be logical, the majority should order the judgment set aside and vacated as no amount of damages can be awarded unless the liability of the defendant is first established.
*618“The foregoing is the only reasonable and logical deduction which can be made from the reasoning of the majority in this ease although the majority opinion does not consider the case from this point of view.
“The patent error on the face of the majority opinion is that it treats defendant’s appeal from the order granting plaintiff’s motion for a new trial on the issue of damages only the same as if defendant had appealed from the judgment. An appeal from the judgment would confer upon this court jurisdiction to review the issue of liability also. This was the situation in the cases where the appellate court reviewed both issues and gave consideration to the question as to whether the inadequacy of the award of damages was the result of a compromise of the issue of liability. Here the issue of liability was determined by the verdict and is now set in concrete by the finality of the judgment. This issue cannot now be reviewed and the judgment is not subject to collateral attack under any rule of law that can be found in the books. The majority squarely holds that the order of the trial court denying defendant’s motion for a new trial can be reviewed only on an appeal from the judgment, and since no appeal was taken from the judgment, this court is without jurisdiction to review the judgment or the denial of defendant’s motion. Yet the majority proceed and review the only issue determined by the judgment—the issue of liability—and holds that such issue was not determined properly because it was the result of a compromise. In other words, the majority does that which it says this court has no jurisdiction to do. What more could the majority have done on an appeal from the judgment ? It has reviewed the evidence of negligence and contributory negligence and holds that these issues were properly submitted to the jury and that the evidence was sufficient to justify the verdict in favor of plaintiff. For all that appears there were no other issues of fact or law except the issue of damages. It would seem that the majority has resorted to double talk in a vain attempt to sustain its unsound position.
“The majority opinion contains the following statement: ([Cal.] 240 P.2d 302.) ‘If the plaintiff prefers a new trial on all issues to none at all, he can move for a complete new trial and in his argument on the motion urge the trial court to limit the new trial to the question of damages; or he can make an alternative motion, asking for a limited new trial and if that cannot be granted for a complete new trial. ’ *619The reasoning of the majority in the foregoing statement is somewhat obscure, as the majority does not attempt to point out how the plaintiff could be benefited by making a motion for a new trial on all issues if the court should grant the motion on the issue of damages only and the defendant should appeal from the order granting such limited new trial. Certainly, the scope of review would not be enlarged because the plaintiff made his motion for a new trial on all issues. It is the scope of the order of the trial court granting the motion for a new trial which determines the scope of review on appeal. The quoted statement from the majority opinion can afford little solace to a plaintiff who has been awarded a new trial on the issue of damages only and this court sees fit to reverse such order as it did in this case.
“It seems both unfortunate and unwise to me to permit the ill-considered, illogical, unsound and unjust majority opinion to stand as a precedent to confuse, mislead and befuddle trial judges, lawyers and litigants, so long as the majority of this court blindly persist in perpetuating such an erroneous pronouncement. ’ ’
Of course, the foregoing dissent was not filed because a rehearing was granted.
It now appears to me that in order for the majority to avoid the shocking injustice which would result from its former decision, it has rewritten its decision on a theory entirely out of harmony with every other decision on the subject, and by implication, at least, has overruled numerous cases without even citing them. At this point I cannot refrain from remarking that this practice is entirely out of harmony with my idea of how to run a court and develop a system of jurisprudence.
It seems to me that if the majority decision is to stand, a trial judge, in considering a motion for a new trial on the ground that the damages awarded are either inadequate or excessive, must weigh the evidence on liability and base his conclusion as to the adequacy of the damages awarded on the strength or weakness of the evidence of liability. In other words he should be clairvoyant to the extent of ascertaining how much the verdict was increased or decreased by the evidence on the issue of liability. Every lawyer or judge who has tried a damage suit knows this cannot be done. But the majority of this court can look at a cold record and say just what took place in the jury room. At least, that is what the *620majority has done in these four cases.* The position of the majority would amuse those who have had experience in the trial of jury cases if it were not fraught with such dire consequences in the administration of justice. We are supposed to have a judicial system which reposes broad discretion in our trial judges. It has been said' that they are something more than referees or umpires. The decided cases generally hold that in the conduct of a trial the opinion of a trial judge as to the effect on the jury of instructions of the court and remarks of counsel are controlling on an appellate court. In fact, in the very field here involved, the discretion of the trial judge has been upheld in all but four cases with the exception of these four cases. And, as pointed out in my dissent in Leipert v. Sonold, ante, pp. 471, 474, the rule here announced is based upon statements contained in decisions which did not purport to review the exercise of the discretion of a trial judge in granting a new trial on the issue of damages only, but where a new trial had been denied and the appellate court was asked to reverse with directions to retry the issue of damages only. The majority seize upon these statements and ignore all that is said in the decisions upholding the discretion of the trial judge in granting such limited new trial of which there are 27 according to my research (see ante, pp. 474, 475).
While the theory upon which the majority decision is based does not require it, the majority has seen fit to change the settled rule that a trial court may not grant a complete new trial when a limited new trial only is demanded (see Quevedo v. Superior Court, 131 Cal.App. 698 [21 P.2d 998]). It will be remembered that both the appellant and respondent took the position at the oral argument of this case that the Quevedo case is sound law, and I am unable to follow the reasoning of the majority in holding that a new trial may be granted on grounds other than those upon which the motion is made. Aside from the basic unsoundness of this holding, the mischief which may flow therefrom staggers the imagination. While conceding, as it must, that a notice of intention to move for a new trial is necessary to confer jurisdiction upon the trial court to grant a motion for a new trial, the majority, by a peculiar process of reasoning seem. to hold that because a trial court could grant a limited new trial in a case where *621a complete new trial is demanded, it should have power to grant a complete new trial where a limited new trial is demanded. This is the equivalent of saying that although a notice of intention to move for a new trial specifies only one ground for the motion, the court may grant it on all the statutory grounds. This is contrary to every decision on the subject of new trials. (See Sitkei v. Frimel, 85 Cal.App.2d 335 [192 P.2d 820]; Jeffords v. Young, 197 Cal. 224, 228 [239 P. 1054] ; Smith v. Ibos, 22 Cal.App.2d 551 [71 P.2d 847] ; Polk v. Boggs, 122 Cal. 114 [54 P. 536]; Laver v. Hotaling, 115 Cal. 613 [47 P. 593]; Estudillo v. Security Loan etc. Co., 158 Cal. 66 [109 P. 884]; Strange v. Strange, 23 Cal.App. 281 [137 P. 1104] ; Johnston v. Blanchard, 16 Cal.App. 321 [116 P. 973]; Cooper v. Superior Court, 12 Cal.App.2d 336 [55 P.2d 299] ; 20 Cal.Jur. 162-163.) In Watkins v. Nutting, 17 Cal.2d 490, 499 [110 P.2d 384], this court said: “A notice of intention to move for a new trial upon one or more of the grounds specified in the Code of Civil Procedure is essential to the court’s jurisdiction. (Smith v. Ibos, 22 Cal.App.2d 551 [71 P.2d 847] ; Peters v. Anderson, 113 Cal.App. 158 [298 P. 76].)”
Obviously a motion for a new trial on the issue of damages only would have to be made upon the ground that the evidence was insufficient to support the award of damages. (See Leipert v. Honold, ante, p. 471.) The defendant comes into court to oppose this motion and learns for the first time that the court intends to hear argument in support of a motion for a complete new trial on all statutory grounds or on some other ground than that specified in the notice. He would justly have cause for complaint, and he would be supported by all of the decided cases. But if the majority opinion here is permitted to stand, neither the plaintiff nor the defendant will have any idea as to what might happen when a notice of intention to move for a new trial on a limited issue is filed. This is not and should not be the law.
I have hereinbefore stated that the majority are guilty of rendering a compromise decision, and I think I have demonstrated the truth of that statement. The majority opinion holds, contrary to all the decided cases, that evidence of liability may be considered in determining the adequacy of the award of damages; that a complete new trial on all issues may be granted when a new trial is demanded on a limited issue only (likewise contrary to all decided cases); that although no appeal is taken from a judgment which establishes *622liability and it has become final, the judgment may nevertheless be reviewed and reversed on an appeal from an order granting a new trial on the issue of damages only. It is obvious that the foregoing unsound pronouncements are made in order to enable the majority to sustain its unsound position that the trial judge committed a gross, manifest and unmistakable abuse of discretion in granting plaintiff's motion for a new trial on the issue of damages only, and at the same time to give plaintiff an opportunity to seek redress for his patently serious injuries. In other words, the majority is compromising on the law in order to give plaintiff an opportunity to retry his case and probably obtain a fair award of damages. While I commend the majority for this display of human kindness, I cannot yield to a compromise which will necessarily throw the law into a state of confusion, especially when full justice may be accomplished by following settled rules of law.
I would affirm the order.
Leipert v. Honold, ante, p. 462 [247 P.2d 324]; Cary v. Wentzel, ante, p. 491 [247 P.24 341]; Rose v. Melody Lane, ante, p. 481 [247 P.2d 335].