SCHELBAUER v. BUTLER MANUFACTURING CO

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Court of Appeal, Fourth District, Division 2, California.

Duane SCHELBAUER, Plaintiff and Respondent, v. BUTLER MANUFACTURING CO., Defendant and Appellant.

Civ. 25568, 27184.

Decided: January 11, 1983

Pickell & Knudson, Robert J. Pickell and Arthur W. Vance, Riverside, for defendant and appellant. Robert M. Holstein, Jr., Leonardini & Fathy and Richard G. Fathy, Sacramento, for plaintiff and respondent.

OPINION

Defendant Butler Manufacturing Co. (hereafter defendant or Butler) appeals from a judgment for Duane Schelbauer (plaintiff) after plaintiff consented to a remittitur upon which an order granting new trial was conditioned.   Defendant filed a separate notice of appeal from the order on its motion to tax costs.   Numerous contentions are advanced for reversal of the judgment.1  However, we find dispositive the contentions that the court's conditioning its new trial order on consent to the remittitur was erroneous and requires reversal of the judgment.   That will leave the new trial order in effect, and it will therefore be unnecessary to deal with defendant's other contentions, save one which is likely to recur on retrial (see Code Civ.Proc., § 43).

The action was one for damages for personal injuries suffered by plaintiff when he slipped and fell 25 feet to the ground from a roof on which he was working.   The action was brought on tort theories of negligence and manufacturer's strict liability in tort.   Although plaintiff's pleadings indicated his claims of defective product was based on both theories of defective manufacture and failure to warn, the jury was not instructed on the failure to warn theory in connection with the cause of action for strict liability in tort.   It was so instructed, however, in connection with the negligence theory.

On the date of the accident plaintiff was employed by Pre-Fab Erectors as an ironworker on a job involving the construction of an addition to an existing building.   The job was at a stage where only the laying of the roof needed completion.   The work involved fastening preformed roofing panels to underlying structural members called purlins.   This was done by fastening the roofing panels to purlins with a clip.

The roofing panels were designed, manufactured and distributed by defendant Butler.   Each panel was covered with a protective oil coating to deter corrosion.   The oil coating would occur in two ways.   First, the steel rolls bought by Butler from Bethlehem Steel Corporation would be given an oil coating by Bethlehem before the steel reached Butler.   Second, Butler either removed excess oil put on by Bethlehem by scraping the steel with a rubber squeegee or added more oil to those pieces of steel it felt had not been sufficiently oiled by Bethlehem.   Butler did not employ an inspector to check the panels for excessive amounts of oil and at the time of the delivery of the panels here involved Butler did not include any warning of possible oil excesses or any corresponding danger therefrom.2  After the accident here involved, Butler began issuing a written warning to its customers of the possible danger.3

On the date of the accident plaintiff had been working on the roof and performing the fastening operation for two days and both he and the other workers were fully aware of the oil coating on the panels and their slippery condition.   Indeed, that had been a topic of express discussion among the workers.   Nevertheless, no safety precautions were taken other than moving slowly and wearing shoes thought to minimize the danger.

On his third day on the job plaintiff was carrying out the fastening operation when his right foot, placed back on one of the panels, slipped, and he fell to the ground.

At the conclusion of trial, the jury returned a special verdict in favor of plaintiff in the amount of $865,000, finding:  the roofing panels were defectively manufactured and proximately caused plaintiff's injury;  plaintiff's injuries were the result of a product use that was reasonably foreseeable;  Butler was also negligent in the manufacture and distribution of the roofing panels and its negligence was also a proximate cause of plaintiff's injury;  and neither plaintiff nor his employer were at all negligent.

Judgment was thereafter entered in accordance with the special verdict.   Defendant Butler was credited with $167,500 previously paid in settlements by other defendants, which resulted in a net judgment in favor of plaintiff in the amount of $697,500 plus interest and costs.   Subsequently, plaintiff filed a cost bill and defendant filed a motion to tax, resulting in the order separately appealed.

Defendant timely filed a notice of motion for new trial on the grounds of insufficiency of the evidence to justify the verdict, excessive damages, and errors in law occurring at trial.   Ruling on the new trial motion, the court issued an order which granted defendant's motion for new trial on the ground of the insufficiency of the evidence to justify the verdict insofar as it determined defendant's defective manufacture and negligence caused plaintiff's injury 100 percent and that neither plaintiff nor plaintiff's employer were at all negligent, and also “on the ground of excessive damages in the sense (but not otherwise) that if the jury had found contributory negligence on the part of Plaintiff and negligence on the part of Plaintiff's employer (as I believe they should have), then the damages actually awarded to Plaintiff would be less than under the verdict as rendered.”

The order granting the new trial was conditional, however.   As corrected by an order the next day it provided:  “Defendant Butler Manufacturing Company's motion for new trial is hereby granted, but on the condition that if plaintiff shall serve and file, on or before March 9, 1981, a written consent to a reduction in the amount of damages by $96,747.58 (so that the resulting judgment, exclusive of costs, shall be $600,752.42 ․, then the motion for new trial is denied.”

On February 25, 1981, plaintiff filed a written consent to the remittitur.   On February 27, 1981, the court filed a statement of reasons for its order conditionally granting new trial.4

Defendant contends the remittitur condition placed by the court on the order granting new trial was unauthorized and, furthermore, the amount of the remittitur was based on an erroneous standard and was not the result of the court's independent weighing and assessment of the evidence.   We agree.

Code of Civil Procedure section 662.5 authorizes the trial court, after a trial by jury, to condition an order granting new trial on the plaintiff's consent to a remittitur, but the remittitur must be in an amount “the court in its independent judgment determines from the evidence to be fair and reasonable.”   Furthermore, the statute authorizes the trial court to condition an order for new trial on consent to a remittitur only in cases in which “the ground for granting a new trial is excessive damages” and in which “an order granting a new trial limited to the issue of damages would be proper.” 5  (See Jehl v. Southern Pac. Co. [1967] 66 Cal.2d 821, 833, 59 Cal.Rptr. 276, 427 P.2d 988 [quoted in fn. 8, infra].)

In this case the new trial was granted not on the ground of excessive damages except in the special sense noted by the court in its order.   Rather it was granted on the ground of insufficiency of the evidence to support the jury's determination that defendant's negligence and defective manufacture were the sole causes of plaintiff's injury and that neither plaintiff nor his employer were at all negligent.   Neither was the case one in which a new trial limited to the issue of damages would have been appropriate, and the order granting new trial was not so limited.

Calling attention to the fact that section 662.5 was not enacted until 1967, plaintiff asserts that a trial court has inherent power to condition an order granting new trial on a consent to a remittitur and asserts that “the decisional law is replete with language that recognized the power of trial court's [sic] to condition new trial motion rulings wholly independent of section 662.5, ․”  The only example cited, however, is Griswold v. Hollywood Turf Club (1951) 106 Cal.App.2d 578, 583, 235 P.2d 656.

 It is quite true that trial courts in California exercised the power to condition new trial orders on consent to a remittitur long before section 662.5 was enacted (see cases cited in footnote 6, infra).   However, we have examined Griswold and a number of other cases mentioned by plaintiff as well as several discovered in our own research, and not a single one of them upholds or indicates the propriety of conditioning a new trial order on consent to a remittitur when the new trial order is granted on a ground other than excessive damages or when a new trial limited to the issue of damages is not appropriate.6  In the face of section 662.5 and in the absence of any decisional or statutory authority even colorably authorizing a trial court to condition its new trial order on consent to a remittitur when the new trial order is not based on the ground of excessive damages or when a new trial limited to the issue of damages is not appropriate, we reject the contention the court was authorized to condition its new trial order on plaintiff's consent to the remittitur.

Although plaintiff makes no attempt on appeal to uphold the trial court's theory, the trial court indicated in its statement of reasons it felt the problem before it lent itself to the use of a remittitur.   It stated in part:  “[T]here is a direct relationship between the amount of contributory negligence and the amount of the payments by the employer on the one hand and the amount of damages charged against the other defendant on the other hand.   In such a case it is possible to say, therefore, that the jury's error has had the effect of increasing damages beyond the amount which would have resulted from the verdict if that error had not been made.   For this reason, it was pointed out in the order granting the motion for a new trial that excessive damages was one of the grounds, but only in the sense that the error with respect to contributory negligence and the employer's negligence affected the amount of the damages.”

It is true the effect of the jury's failure to find negligence on the part of the plaintiff and/or his employer was to render the damage award against defendant greater than it would otherwise have been, and the problem is one of “excessive damages” in that special sense.   However the second requirement of section 662.5 is not met:  the case is not one in which “a new trial limited to the issue of damages would be proper.”  (See Jehl v. Southern Pac. Co., supra, 66 Cal.2d at p. 832, 59 Cal.Rptr. 276, 427 P.2d 988 [quoted in fn. 8, infra].)   The problem is one of apportioning liability under the comparative fault doctrine, which the jury quite obviously either failed to understand or refused to follow.

But even if the trial court's theory were otherwise sound, the remittitur here was nevertheless improper because the amount of the remittitur was fixed by the use of a standard that resulted in a failure to comply with the statutory requirement that the amount of the remittitur be based on the trial court's “independent judgment ․ from the evidence [that it is] fair and reasonable” (§ 662.5, subd. (b) [see fn. 5, ante] ).   The court expressly stated the amount of the remittitur it ordered was not based on its own view of what was fair and reasonable as a result of its independent judgment of the evidence but, rather, on the minimum percentages of fault on the part of plaintiff and his employer the court felt the jury could have found, i.e., 5 percent on the part of plaintiff and 10 percent on the part of his employer.   The court unequivocally indicated that in its own assessment of what would be fair and reasonable on the evidence, the percentages would be substantially greater.7

 The standard utilized by the court was erroneous.   It is true the statute now requires a finding the jury clearly should have reached a different decision as a prerequisite to the court's granting a motion for new trial on grounds of insufficiency of the evidence or inadequate or excessive damages, but once the court has so determined, the statute expressly requires that any remittitur or additur ordered must be in such amount as “the court in its independent judgment determines from the evidence to be fair and reasonable.”   (§ 662.5, [see fn. 5, ante];  Jehl v. Southern Pac. Co., supra, 66 Cal.2d at pp. 832–833, 59 Cal.Rptr. 276, 427 P.2d 988.)8

For the reasons stated the remittitur condition to the order granting new trial was improper.   The purported acceptance of the remittitur by plaintiff was of no consequence and the new trial order stands.   Plaintiff has not cross-appealed and, in any event, does not and could not successfully contend the new trial order is not supported by substantial evidence.   Accordingly, the judgment will be reversed, reinstating the new trial order without condition.

However, because the problem will certainly recur on retrial we must resolve defendant's contention the trial court erred in admitting into evidence its post-accident change in its literature to give notice to its customers of the possible slippery condition of its roofing panels and the possible necessity for safety precautions.

Section 1151 of the Evidence Code provides:  “When, after occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.”   However, in Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 118–121, 117 Cal.Rptr. 812, 528 P.2d 1148, our Supreme Court held that in a products liability case based on a manufacturing defect the statute does not preclude evidence of a subsequent change in the manufacturing process.   The question is whether Ault or Evidence Code section 1151 is applicable to this case.

Defendant contends this is not a case involving a manufacturing defect, but at most a failure to warn, because a defect in the manufacture of a product exists only “if the product differs from the manufacturer's intended result or if the product differs from apparently identical products from the same manufacturer.”  (BAJI No. 9.00.3.)   Defendant urges the roofing panels were intended to be oil coated, so the panels were not different from what was intended and there is no evidence the particular panel on which plaintiff slipped was different from any other panel.

The difficulty with this argument is that there was evidence from which it could reasonably be inferred that sometimes the panels were delivered with excessive oil coating notwithstanding that excess oil was supposed to be removed with a squeegee in the manufacturing process.   Thus there was evidence of a manufacturing defect.

 The more difficult problem presented is that here there was no subsequent change in the manufacturing process, only a change in the customer literature to warn of the possibility of slipperiness and a possible need for safety precautions.  Ault did not deal with a post-accident warning notice, and its rationale does not, in our view, authorize the introduction of evidence of a post-accident warning as proof of product defect based on a lack of warning.

In holding that Evidence Code section 1151 was not intended to exclude evidence of post-accident changes in the manufacturing process, the Ault court recognized the modern public policy basis for the exclusion of evidence of subsequent repairs embodied in Evidence Code section 1151 is that the exclusion of such evidence may be necessary to avoid deterring individuals from making improvements or repairs after an accident has occurred.  (13 Cal.3d at p. 119, 117 Cal.Rptr. 812, 528 P.2d 1148.)   However, the court concluded that that rationale lacks validity and is therefore inapplicable to post-accident changes in the manufacturing process by a mass producer of goods.

The court reasoned:  “The contemporary corporate mass producer of goods, the normal products liability defendant, manufacturers tens of thousands of units of goods;  it is manifestly unrealistic to suggest that such a producer will forego making improvements in its product [emphasis added], and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement.   In the products liability area, the exclusionary rule of section 1151 does not affect the primary conduct of the mass producer of goods, but serves merely as a shield against potential liability․ [¶]  This view has been advanced by others.   It has been pointed out that not only is the policy of encouraging repairs and improvements of doubtful validity in an action for strict liability since it is in the economic self interest of a manufacturer to improve and repair defective products [emphasis added], but that the application of the rule would be contrary to the public policy of encouraging the distributor of mass-produced goods to market safer products.  (Note, Products Liability and Evidence of Subsequent Repairs, 1972 Duke L.J. 837, 845–852.)  [Fn. omitted.]

“The recent case of Sutkowski v. Universal Marion Corporation (1972) 5 Ill.App.3d 313 [281 N.E.2d 749], directly supports this conclusion.   Noting that in the products liability field ‘policy considerations are involved which shift the emphasis from the defendant manufacturer's conduct to the character of the products' (italics added [by the Ault court] ) (281 N.E.2d at p. 753), the Sutkowski court held that the Illinois statutory rule excluding evidence of post-occurrence changes in negligence cases did not apply to products liability cases.  [¶]  Given the purpose of section 1151, and the difference between negligence and products liability actions noted above, it is not surprising that in drafting the provision the Legislature confined the section to actions in which the defendant's ‘negligence’ or ‘culpable conduct’ is at issue.   Neither the Legislature nor the Law Revision Commission which drafted the section could have been oblivious to the likely evidentiary use of subsequent design changes in strict liability cases [emphasis added]․”  (13 Cal.3d at pp. 120–121, 117 Cal.Rptr. 812, 528 P.2d 1148.)

Thus, the essential foundation for the court's conclusion in Ault was that the economic self interest of the mass producer of goods would require it to make the best product it could, including the making of post-accident changes in the manufacturing process, irrespective of whether or not evidence of those changes was admissible in litigation against it.

But what of post-accident warnings without any change whatever in the manufacturing process or the product?   The product is not thereby improved or in any way made better, and the manufacturer may well be deterred from adding to its literature a warning, apparently felt by it to be unnecessary in the first instance, by a rule making a post-accident warning admissible against it in litigation of a pre-warning accident.   The economic self interest of the manufacturer which compels it to improve its product to eliminate a defect is unlikely to motivate a manufacturer to issue a warning with respect to a product that it continues to sell unchanged.   Indeed, it may be surmised that issuance of a warning in respect to an unchanged product could be against the economic self interest of the manufacturer.

There is yet another problem which is somewhat exemplified by this case.   Whatever may be said of the legal distinction between negligence and the manufacture or distribution of a defective product generally, when the defect in the product consists of a failure to warn, the distinction between defective product and negligent distribution becomes all but imperceptible.  Evidence Code section 1151 clearly makes evidence of a post-accident warning inadmissible to prove negligence, but if that same evidence is admissible to prove defective product based on a lack of warning, how is the jury to manage the segregation in their minds?

In the case at bench, the evidence of defendant's post-accident warning was apparently admitted on the theory that it went to the question of defective product, because that was one of the theories upon which products liability was alleged.   However, when it came time for jury instruction, no instructions on failure to warn were given in connection with the products liability count.   But such instructions were given in respect to the count for negligence.

We conclude that evidence of defendant's post-accident change in its literature to advise users of its product of the possibility of slipperiness and the possible need for safety precautions shall be inadmissible on retrial to prove either negligence or defective condition based on a failure to warn.   We do not intimate whether such evidence might be admissible for impeachment or some other purpose (see, e.g., Daggett v. Atchison, T. & S.F. Ry. Co. [1957] 48 Cal.2d 655, 661, 313 P.2d 557;  Hatfield v. Levy Brothers [1941] 18 Cal.2d 798, 809–810, 117 P.2d 841;  Inyo Chemical Co. v. City of Los Angeles [1936] 5 Cal.2d 525, 543–544, 55 P.2d 850), nor do we express any opinion whether in any such context the probative value of such evidence might be outweighed by its prejudicial effect so as to be properly excluded under Evidence Code section 352.

The judgment is reversed thereby reinstating the order for new trial without condition.   Reversal of the judgment renders moot the appeal from the order on the motion to tax costs, and that appeal is therefore dismissed as moot.   Defendant shall recover costs on appeal.

FOOTNOTES

1.   In addition to the contentions with which we deal in the opinion, defendant also contends:  (1) the trial court had no jurisdiction to provide for a consent to remittitur at a date after the expiration of the court's jurisdiction to grant a motion for new trial;  (2) the court erred in admitting into evidence the testimony of plaintiff's expert (Moore) to the effect that a manufacturing defect existed;  and (3) in view of the court's permitting into evidence the post accident warning issued by defendant, the court's instructions on failure to warn in connection with the negligence theory were erroneous.

2.   Prior to the accident involved in this case, Butler had sold very large quantities of these roofing panels and had received no complaints or claims on account of workmen falling as a result of any slippery condition.

3.   Under the title “CARE OF BUILDING PANELS” a notice stated in pertinent part:“All unpainted panel material has a protective oil coating to minimize damage from wetness during transit and job site storage.   The protective coating is essential to retard wet storage damage.   Since the coating may present a slippery condition during erection of the panel material, appropriate safety precautions must be observed while working on panel surfaces.“Occasionally, panels will be shipped that have a heavy oil coating.   Reports of heavy oil coatings are rare and usually occur during the warm summer months.   It is generally thought this is due to the material being subjected to higher temperatures in transit and at the job site than it is during in-plant storage, resulting in some flowing of the oil after shipment.   The oil flowing from the bundles can stain wall panels and/or concrete.   Panels should be checked on receipt so that if wiping of panels is necessary, it can be done without disruption of other erection activities as well as avoiding possible wall or concrete staining.   Wiping may be a necessary safety precaution.“․“WARNING:  PANELS WITH PROTECTIVE OIL COATINGS ARE SLIPPERY.   PROCEED WITH CAUTION.   WIPE CLEAN IF NECESSARY.”  (Emphasis in the orig.)

4.   The court's statement of reasons was not originally included in the record.   We have ordered the record augmented to include it.   The statement reads in pertinent part:  “The jury found no contributory negligence on the Plaintiff and no negligence of Plaintiff's employer.   But the evidence shows that Plaintiff was aware of the fact that the roof panels were slippery, that other employees had fallen on them during the course of this work, and even that the condition of these particular panels had been discussed among the employees.   In my view, the continued work on the roof under these circumstances, and without special safety devices such as restraining belts or platforms, involved a lack of due care on the part of Plaintiff's employer with respect to the safety of all employees assigned to the roof installation.   The facts show an unreasonable acceptance of an apparent hazard such as is now treated in California as a form of contributory negligence rather than under the separate doctrine of assumption of risk.  (See Li v. Yellow Cab Co., 13 Cal.3d 804, 829, 119 Cal.Rptr. 858, 532 P.2d 1226.)“․ I am satisfied that the jury clearly should have found contributory negligence, as well as negligence of the employer, and also that such negligence of Plaintiff and negligence of the employer were proximate causes of Plaintiff's injuries.   The jury clearly should have apportioned fault among Plaintiff, the employer and the defendant Butler Manufacturing Co.;   it was unreasonable to assign all fault to Butler alone.”

5.   Code of Civil Procedure section 662.5 reads:“In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion:“(a) If the ground for granting a new trial is inadequate damages, make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party against whom the verdict has been rendered consents to an addition of so much thereto as the court in its independent judgment determines from the evidence to be fair and reasonable.“(b) If the ground for granting a new trial is excessive damages, make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party in whose favor the verdict has been rendered consents to a reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable.”(All statutory references will be to the Code of Civil Procedure unless otherwise specified.)

6.   In Griswold the trial court granted a motion for new trial on the ground of insufficiency of the evidence and purported to condition the order on plaintiff's consent to a remittitur of the exemplary damage award from $7,500 to $500.   But the plaintiff refused to accept the remittitur, so its propriety was not in issue on appeal, nor was it discussed.   The order granting new trial was upheld on appeal because there was no evidence of authorization or ratification by the corporate defendant of the conduct of the individual defendants.  (106 Cal.App.2d at p. 583, 235 P.2d 656.)   The court then stated:  “An alternative ground would be that the verdict for exemplary damages was deemed to be excessive, in which case it would have been the duty of the court to reduce the amount, as was done, or to grant a new trial outright ․”  (Id.;   emphasis added;  see also:  Jehl v. Southern Pac. Co., supra, 66 Cal.2d at p. 832, 59 Cal.Rptr. 276, 427 P.2d 988 [quoted in fn. 8, infra];  Draper v. Hellman Com. T. & S. Bank [1928] 203 Cal. 26, 41, 263 P. 240;  Grimshaw v. Ford Motor Co. [1981] 119 Cal.App.3d 757, 822, 174 Cal.Rptr. 348;  Collins v. Lucky Markets, Inc. [1969] 274 Cal.App.2d 645, 648–649, 79 Cal.Rptr. 454.)Jehl's language “insufficiency of the evidence because the damages are inadequate” is really a reference to the ground of inadequate damages.   (See Kolar v. County of Los Angeles [1976] 54 Cal.App.3d 873, 878, 127 Cal.Rptr. 15.)

7.   The pertinent portion of the court's statement of reasons reads:  “There remains the question of the approach to be taken in determining the amount of an appropriate remittitur.   Formerly, the amount of contributory negligence found by the trial judge to be reasonable would be the amount controlling the reduction in any conditional order granting new trial.   However, the present statute requiring that when insufficiency of the evidence to justify the verdict or excessive damages are the grounds for a new trial, the trial judge should act only to the extent that the jury clearly should have reached a different decision must be considered.   The remittitur should be based not on what the trial judge personally believes is the appropriate amount of contributory negligence, but rather on the percentage of contributory negligence which represents the minimum which the jury clearly should have recognized.   My own feeling is that the negligence of the employer in particular was considerable, and that even the plaintiff was substantially negligent in terms of his own safety.   But I cannot say that the jury was clearly bound to agree with the percentages which I would have found.   Rather, I believe that the minimum amounts which clearly should have been recognized by the jury were 5% contributory negligence and 10% negligence of the employer.   Had these percentages been used by the jury, the effect would have been to reduce the award of $865,000 by 5% by reason of plaintiff's contributory negligence (that is, by $43,250) and by the full amount which the employer or his carrier had paid to or for the plaintiff ($53,497.58), inasmuch as 10% of the award exceeds the amount of such payments by the employer.”

8.   In Jehl the court stated:  “There is no essential difference between the procedures appropriate for remittitur and additur, and we may therefore look to remittitur cases to determine the proper procedure for additur.  [¶]  “Upon a motion for new trial grounded on insufficiency of the evidence because the damages are inadequate, the court should first determine whether the damages are clearly inadequate and, if so, whether the case would be a proper one for granting a motion for new trial limited to damages.  (See e.g., Hamasaki v. Flotho, 39 Cal.2d 602, 604–607 [248 P.2d 910].)   If both conditions exist, the court in its discretion may issue an order granting the motion for new trial unless the defendant consents to an additur as determined by the court․ [¶]  “If the court decides to order an additur, it should set the amount that it determines from the evidence to be fair and reasonable.   In this respect it should exercise its completely independent judgment.   It need not fix either the minimum or maximum amount that it would have sustained on a motion for new trial or the minimum or maximum amount that would be supported by substantial evidence and therefore sustainable on appeal.   If the defendant deems the additur excessive, he may reject it and seek to sustain the jury's award on an appeal from the order granting a new trial.   If the plaintiff deems the additur insufficient, he may raise the issue on an appeal from the judgment as modified by the additur.”  (Fns. omitted.)

KAUFMAN, Acting Presiding Justice.

McDANIEL and TROTTER,* JJ., concur.