Kuhlmann

Plaintiff, a relief milkman employed by Foremost Dairies, was injured while delivering milk to a customer of the dairy. Claiming that his injury was caused by the negligence of defendant Pascal & Ludwig, he brought suit against them for damages. His self-insured employer intervened, as is permitted by section 3853 of the Labor Code. After a jury trial, a general verdict in the amount of $15,000 was returned against defendant and judgment was entered thereon. Both verdict and judgment refer only to the plaintiff and to defendant; neither refers to the intervener. Defendant has appealed; the intervener has not appealed. For the reasons discussed below, we modify the judgment as entered and affirm it as so modified.

Defendant was engaged in constructing a storm drain and, for that purpose, had made an excavation approximately 20 feet in width and varying in depth to a maximum depth of 20 feet. In order to keep people out of that excavation, defendant had erected a safety fence made of chicken wire. The progress of the work frequently resulted in the fence being knocked down. Defendant’s job engineer was aware of this but, if it was noted after working hours, the matter was…

I concur in the judgment, but disagree with the majority’s conclusion that, under the circumstances here presented, the jury’s verdict need not separately fix the damages to be awarded to the plaintiff and the intervener.

While failure to require the jury to segregate its awards may be harmless error in some cases, as here, that practice should not be given the imprimatur of this court. The parties are entitled to a finding by the jury of the amount due the employer-insurer, 1 if for no other reason than to insure the jury’s consideration of this item and to give added meaning to the additional award, if any there be, to the injured plaintiff. Labor Code, section 3856 does not dispense with the requirement of separate verdicts. That section merely directs the trial judge to fix priorities in the awards. (Cf.: Eldridge v. Truck Ins. Exchange (1967) 253 Cal.App.2d 365 [ 61 Cal.Rptr. 347 ].) I do not read Labor Code, section 3856 as adopting a procedure wherein separate verdicts are not required.

The possibilities of prejudice inherent in allowing a jury to return a single award may be illustrated by supposing an action wherein the *157 employer-insurer paid benefits totaling…

Plaintiff, a relief milkman employed by Foremost Dairies, was injured while delivering milk to a customer of the dairy. Claiming that his injury was caused by the negligence of defendant Pascal & Ludwig, he brought suit against them for damages. His self-insured employer intervened, as is permitted by section 3853 of the Labor Code. After a jury trial, a general verdict in the amount of $15,000 was returned against defendant and judgment was entered thereon. Both verdict and judgment refer only to the plaintiff and to defendant; neither refers to the intervener. Defendant has appealed; the intervener has not appealed. For the reasons discussed below, we modify the judgment as entered and affirm it as so modified.

Defendant was engaged in constructing a storm drain and, for that purpose, had made an excavation approximately 20 feet in width and varying in depth to a maximum depth of 20 feet. In order to keep people out of that excavation, defendant had erected a safety fence made of chicken wire. The progress of the work frequently resulted in the fence being knocked down. Defendant's job engineer was aware of this but, if it was noted after working hours,…