The opinion
SCHAUER, J.
I dissent. It appears to me that on the record in this case the verdict cannot be sustained upon any theory of liability, and that the judgment should be reversed.
As related in the opinion prepared by Mr. Justice Carter, two actions were filed. In the first action (No. 528375) the student as the sole party plaintiff sued the school and Martin (the driver of the automobile in which the student was riding when injured). In the second action (No. 540614) the student and his mother, as parties plaintiff, sued the school only (on the theory of negligence or breach of contract in letting the student leave the school premises). The jury returned a verdict in favor of the student and his mother against the school only. This verdict fits precisely the pleadings of the second action; as to the parties plaintiff and as to the party defendant in that action it resolves all the issues. It does not fit and does not appear to be responsive to the pleadings, parties or issues of the first action. It seems to me that the only reasonable conclusion is that the verdict is based solely on the theory of the second action (No. 540614).
I think that on close analysis even the argument in Justice Carter’s opinion tends to support the above stated view rather than the conclusion reached by him. He says (after mentioning the cases holding that the pleadings and evidence must be examined, as well as the instructions to the jury, in determining the significance of a verdict as to one defendant and its silence as to another) : “But here the instructions and forms of verdict given to the jury are not in the record. We must presume, therefore, that they were proper, and under the issues so presented, a proper verdict was returned. (Snodgrass v. Hand, 220 Cal. 446 [ 31 P.2d 198 ].) ” Applying that • quoted principle to the case here we should presume that *282 “under the issues so presented, a proper verdict was returned.” The verdict which the jury returned is legally “proper” in respect to the parties and the issues of the second action; it is in favor of the two plaintiffs named in that action and against the sole defendant. It is my firm conviction that the evidence (which it would serve no useful purpose to elaborate here) is not sufficient to support a verdict in that action; it wholly fails to establish the breach of any duty owed by defendants.
Moreover, the superior court clerk’s file in these cases has been forwarded to this court. Further supporting the view I have just expressed is the fact that the following instruction was given:
“If you find from the evidence that all of the defendants in this action were guilty of negligence which proximately cause the injuries received by the plaintiff Robert Brokaw then your verdict must be for the plaintiffs against all of said defendants. ’ ’
If we are to presume that the jury followed the instruction ■ — and we certainly have no right to presume otherwise — it seems to me that we must conclude that the jury did not find Martin guilty of negligence and could not have found Blaek-Foxe guilty of negligence on the theory of respondeat superior because of any act or omission of Martin’s.
Even if this court could assume that by consolidating the actions for trial it was intended to so amend the pleadings as to include the mother as a party plaintiff in the first action (No. 528375), and that the failure to find against Martin has no significance, the most that can be said in favor of plaintiffs-respondents is that it is impossible to tell, then, upon which theory the verdict is based; and since the evidence is insufficient to support a verdict based upon the theory advanced in the second action (No. 540614), the judgment cannot be sustained. I would therefore reverse it.