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District Court of Appeal, Second District, Division 3, California.


Civ. 17727.

Decided: March 21, 1951

Sidney A. Moss and Henry F. Walker, Los Angeles, for appellant. David Schwartz, Beverly Hills, for respondent.

In this action for damages for personal injuries the verdict was for plaintiff against defendant Pig'n Whistle Corporation in the sum of $1 general damages and $250 special damages. Judgment was entered in accordance with the verdict. Plaintiff made a motion for a new trial upon the issue of damages only, which motion was based upon all the grounds for a new trial stated in section 657 of the Code of Civil Procedure, except excessive damages. In ruling upon the motion for a new trial, the court made the following order: ‘[T]he motion for a new trial is granted on the ground of inadequacy of the damages, and a new trial is ordered on the issue of damages only.’ Defendant's notice of appeal recites that he appeals from the judgment and from the order granting the motion for a new trial upon the issue of damages only.

Appellant contends that the evidence was insufficient to support the judgment; and that it was an abuse of discretion for the trial court to grant a new trial limited to the issue of damages.

On January 7, 1948, about 11 p. m., plaintiff and one Martell entered the cocktail bar of the Melody Lane restaurant to get ‘a drink.’ They went to the bar and sat on stools which were about 3 1/212 feet high. About two seconds thereafter and while Martell was ordering the drinks, the top or seat portion of the stool upon which plaintiff was sitting ‘broke off’ and plaintiff fell backward upon the floor. Thereafter plaintiff and Martell went to Martell's home, where plaintiff's wife was visiting, and from there plaintiff and his wife went home. Plaintiff testified that he was awakened that night by pain; the next day he observed black and blue marks on his leg, and he suffered pain at the bottom of his backbone; also on the day after the accident he went to see a doctor; up to the time of trial he still had pain and he could not sit comfortably on hard chairs, and he had not been dismissed by his doctor; his doctor had told him that his charges for medical services would be around $300. Plaintiff paid $52.50 to other doctors for X-rays.

The doctor, who rendered medical services for plaintiff, testified that he examined plaintiff on January 8th (day after accident); plaintiff suffered injury to the lower part of his back and legs; he had a hematoma on the left calf, which meant that he had quite a violent fall; he had a definite injury of the coccyx or the tail-bone, which is a serious injury; the injuries are permanent; plaintiff is still his patient; he had seen plaintiff about 75 times; and the reasonable value of his services is around $300.

The seat portion of the stool is a kind of chair—with a backrest but without arms. The seat and backrest are upholstered in leather. The seat is about 16 inches square. On the underside of the seat there is a cast iron tripod or device which is fastened to the seat with bolts. In the tripod there is a round hole about 5/858 of an inch in diameter into which a steel pin that is approximately 5/858 of an inch in diameter and 4 1/212 inches in length is inserted. The seat portion of the stool rests upon a pedestal which is about four inches in diameter and is fastened to the floor. The seat portion of the stool and the pedestal are connected by inserting the lower part of the steel pin into a cylinder at the top of the pedestal. The seat or chair of the stool can be turned on a swivel to the right or left.

One Perez, called as a witness by defendant, testified that he is employed by defendant as a maintenance mechanic and he has been so employed since 1927; he did not see the accident; and the morning after the accident he found the stool that had been broken and he removed the broken steel pin therefrom. That pin was received in evidence as defendant's ‘Exhibit F.’ He testified further that the seat involved here had been in the barroom since 1940 and it was in use there at the time of the trial; to repair the stool all he had to do was to remove the pin and insert another pin; it is necessary to grease the chair about every 30 or 60 days; the chair part lifts up, and when he cleans or greases the swivel he raises the seat and then puts it back again; that he greased it about two weeks before the accident occurred, and at that time he saw the pin which is involved here and there was nothing wrong with it; and during the time he was employed by defendant no other stools were broken.

The assistant manager of the Melody Lane testified that it was a part of his duties to inspect the stools; they are checked about every day; he checked them probably two or three days before the accident and there was nothing wrong with them; and in making the inspection, he turned them and checked the bases.

A chemical engineer, called as a witness by defendant, testified that he had been a chemical engineer since 1910; from 1910 to the time of trial, he had examined steel and other metal products to ascertain causes of breaks; at the request of defendant's counsel he made an examination of the broken pin which is defendant's exhibit F; he is familiar with that type of pin and it is a standard type of pin; he drilled holes in the pin in order to get a sample of steel for analysis; he made a chemical analysis to determine the type of steel; he made a microscopic examination to determine the appearance of the grain structure of the steel and to determine the type of failure; from his examination of the steel he determined that the break is known as a progressive fatigue fracture; such a fracture occurs where stresses are localized—the molecules of the steel start to separate at some point and as reverse stresses are applied from time to time the broken area increases to the point that it ultimately fails due to lack of metal; in his opinion this particular fatigue would have been very difficult to detect; he could not detect the fatigue without a microscope and he did not think that he could have detected it with a microscope; another pin, defendant's exhibit G (which is not broken), is visually the same type of pin as the broken pin (exhibit F); in his opinion exhibit F, before it was broken, would not have looked any different from exhibit G; any metal is likely to start fatigue; when there is progressive fatigue it is a potential cause of failure; when the failure would occur would depend upon the number of times the stress was applied to that particular section—it might be years or it might be a few days.

Plaintiff and Martell testified that there was subdued lighting in the barroom and it was dark therein.

After the jury had deliberated about 1 1/212 hours, it returned to the courtroom and asked that the testimony of witness Perez be read. Pursuant to that request said testimony was read. (It is to be noted that his testimony did not relate to the issue of damages.)

Appellant (defendant) contends that it was an abuse of discretion to grant a new trial limited to the issue of damages. It argues to the effect that since the evidence in favor of plaintiff, if any, on the issue of liability was weak, and since the jury had difficulty in reaching an agreement as to liability, and since the total amount of the verdict was less than the amount of special damages, it is apparent that, in order to arrive at a verdict, members of the jury made unwarranted concessions or a compromise regarding the issue of liability; and that under such circumstances if a new trial should be had it should be upon both issues, liability and damages.

There was evidence that the doctor saw plaintiff about 75 times regarding the injuries, and that his charge was about $300. The award of $1 as general damages, in view of the extent of the medical treatments, is not commensurate with the injuries sustained and is so inadequate that, when said award is considered in connection with the substantial evidence in favor of defendant on the issue of liability, it indicates that the verdict was the result of a compromise. Where, in order to arrive at a verdict, jurors who believe there is no liability on the part of defendant surrender those views in consideration of other jurors consenting to an award in a trifling amount, the verdict is not a justifiable one and in reality leaves the question of liability undetermined. Donnatin v. Union Hardware & Metal Co., 38 Cal.App. 8, 11, 175 P. 26, 177 P. 845; Wallace v. Miller, 26 Cal.App.2d 55, 59–60, 78 P.2d 745; Keogh v. Maulding, 52 Cal.App.2d 17, 20–21, 125 P.2d 858. ‘[I]t would work a grave injustice upon defendant to force it to a new trial of the issue as to damages only, with the issue as to liability, upon which no verdict other than in name had been rendered, forever closed against any inquiry.’ Donnatin v. Union Hardware & Metal Co., supra, 38 Cal.App. at page 11, 175 P. at page 27. ‘[I]t is an abuse of discretion to limit a new trial to the issue of damages when the amount awarded by the jury is so small in view of the damages proved that it must be concluded that the verdict is the result of some of the jurors sacrificing their conscientiously held view that the defendant was not liable and agreeing to a small but inadequate award for the plaintiff in order to arrive at some verdict.’ McNear v. Pacific Greyhound Lines, 63 Cal.App.2d 11, 15, 146 P.2d 34, 36. ‘A limited new trial should not be granted, where substantial justice requires that a new trial, if granted at all, should cover all the issues.’ Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518, 528–29, 67 P.2d 398, 403. In the case of Wilke v. Crofton, 34 Cal.2d 304, at page 310, 209 P.2d 790, at page 793, the court said: ‘In many instances a retrial of the single issue of damages would meet the requirements of substantial justice [Citations], but where, as here, the evidence as to liability is sharply conflicting and the damages awarded are so grossly inadequate as to indicate a compromise of the issues of liability and damages, the entire case should be re-examined.’

The trial court herein properly concluded that the amount awarded as damages was inadequate to compensate for the injuries sustained, but it erred in limiting a new trial to that issue. The court should have ordered a new trial as to all the issues. In Keogh v. Maulding, supra, 52 Cal.App.2d 17, 125 P.2d 858, the court modified an order, which limited a new trial to the issue of damages, by ordering a new trial as to all the issues.

As above stated, defendant also gave notice that it appeals ‘from the judgment.’ After the order was made granting a new trial as to the issue of damages only, there was no judgment. Statements in the case of Universal Film Mfg. Co. v. Kerrigan, 47 Cal.App. 255, 190 P. 475, are applicable here. In that case it was said 47 Cal.App. at page 256, 190 P. at page 475: ‘Although the appeal has been presented by briefs arguing the case on its merits, the court is forced to take notice of the fact that there is no judgment, and therefore, there can be no appeal therefrom. The order for retrial of the issue as to amount of damages, necessarily set aside the judgment. This is an action at law, wherein the judgment is single and indivisible, for it consists of only the one order that the plaintiff recover from the defendant so much money. Taking out that recovery, nothing effective as a judgment remains in existence.’ The purported appeal from ‘the judgment’ should be dismissed.

In making the decisions herein, regarding a new trial and a purported appeal from a judgment, this court has not decided the merits of the question as to liability.

The order granting a new trial as to the issue of damages only is modified by ordering a new trial upon all the issues. The purported appeal from ‘the judgment’ is dismissed.


SHINN, P. J., and VALLÉE, J., concur.

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