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District Court of Appeal, Fourth District, California.


Civ. 4259.

Decided: September 25, 1951

Edgar B. Harvey, San Diego and Henry F. Walker, Los Angeles, for appellant. McInnis & Hamilton, by John W. McInnis, San Diego, for respondent.

Plaintiff brought this action to recover damages for injuries sustained by her in an intersection accident while she was riding in an automobile owned and operated by defendant R. T. Ruocco. A jury returned a verdict in favor of plaintiff in the sum of $1,500. She appeals from the judgment thereupon entered, claiming that the damages awarded are inadequate and that the trial court erred in denying her motion for a new trial on condition that the defendant offer to pay a larger sum than that awarded by the jury.

The questions involved are: (1) Whether the verdict and judgment are supported by substantial evidence; and (2) Whether the trial court abused its discretion in denying plaintiff's motion for a new trial. We conclude that the first question must be answered in the affirmative and the second in the negative.

Plaintiff was employed in San Diego and had arranged with defendant and his wife, who lived several miles from the city, to live with them until she secured an apartment. On the morning of January 19, 1950, defendant was taking plaintiff to a bus stop in El Cajon, so that she could catch the bus to her place of employment, when he failed to see the ‘red’ traffic light at an intersection and drove his car in a southerly direction into another vehicle crossing the street from the east.

The jury expressly found that plaintiff was a passenger and the evidence is ample to sustain that finding and the implied findings that defendant was negligent and that his negligence was a proximate cause of the accident and plaintiff's injuries.

Plaintiff's motion for a new trial is based principally upon the claimed insufficiency of the evidence to justify the verdict in so far as it relates to the amount of damages awarded.

Plaintiff sustained a scalp wound, which at the time of trial was barely visible, and an injury to her left leg over the shin bone, resulting in some adhesion of the tissue. There was no evidence of bone fracture, however. Plaintiff sustained bruises to her left side and a deep bruising of the tissue of the left thigh, necessitating an incision to remove a liquid mass which had formed in the bruised tissue. This thigh injury did not heal as expected and a second operation was performed on October 26, 1950. Dr. Gallagher, a physician called by the plaintiff, testified that this wound eventually healed but that plaintiff suffered some pain and discomfort by reason of adhesions. He stated that plaintiff would probably need another operation, the reasonable cost of which would be the sum of $300. The doctor charged plaintiff $700 for his services and testified that his charges were reasonable.

Evidence was introduced as to the following items of ‘special damages':

Plaintiff argues that the amount awarded by the jury was less than the special damages proved and was therefore inadequate. In considering this question we must bear in mind the firmly established rules that the jury is the judge of the weight and sufficiency of the evidence and the credibility of the witnesses; that the question of the award of damages and the amount is primarily one for the jury; that on a motion for a new trial it becomes the duty of the trial judge to again weigh the evidence and to sufficiently measure the credibility of the witnesses; that in so doing it is also his duty to consider the adequacy or inadequacy of the amount of damages awarded; that if he finds the damages inadequate, it is his duty to grant a new trial either generally or upon the special issue of the amount of damages. There is no fixed standard by which we may determine the exact amount of money that will compensate one for an injury and in the absence of such a standard or precise rule, the assessment of the amount of general damages, to a large extent, must be left to the good sense and sound discretion of the jury. It is only when the amount of the award indicates passion, prejudice or corruption on the part of the jury that an appellate court can interfere with the amount of an award. Sassano v. Roullard, 27 Cal.App.2d 372, 373–374–375, 81 P.2d 213.

As was said in Gersick v. Shilling, 97 Cal.App.2d 641, 645, 218 P.2d 583, 586: ‘The question as to the amount of damages is a question of fact. In the first instance, it is for the jury to fix the amount of damages, and secondly, for the trial judge, on a motion for a new trial, to pass on the question of adequacy. Whether the contention is that the damages fixed by the jury are too high or too low, the determination of that question rests largely in the discretion of the trial judge. The appellate court has not seen or heard the witnesses, and has no power to pass upon their credibility. Normally, the appellate court has no power to interfere except when the facts before it suggest passion, prejudice or corruption upon the part of the jury, or where the uncontradicted evidence demonstrates that the award is insufficient as a matter of law. In determining whether there has been an abuse of discretion, the facts on the issue of damage most favorable to the respondent must be considered.’

In the instant case, damages having been awarded in a lump sum, there is no indication of the actual amounts allowed for each item of special damages claimed. The jury may have believed that the amount charged by Dr. Gallagher for his services was excessive and may have allowed much less for that item. Likewise, the jury may have believed that the item of $300 for a future operation of plaintiff was excessive or that such an operation was entirely unnecessary. The jury may also have made a deduction from the amount charged for loss of earnings. Under these circumstances, we cannot say that there was no award made for general damages nor can we say that the award actually made was less than the special damages alleged and sufficiently proved. There is no indication in the record of passion, prejudice or corruption upon the part of the jury and we cannot say that the evidence demonstrates that the award made by it is insufficient as a matter of law.

Much is said in the briefs relative to the trial court's comments made at the hearing on the motion for a new trial concerning conditions inserted in the order which he made denying the motion. The order provided ‘That if, within ten days from the date hereof, defendant shall file herein a written offer to pay to plaintiff the sum of $2,000 in full satisfaction of all claims involved in the above entitled cause, then plaintiff's motion for a new trial herein shall be denied. Should defendant fail to file such written offer within said period of time, then plaintiff's motion for a new trial herein shall be granted upon all of the issues.’ The defendant filed his ‘Consent to Additur’ wherein it was provided that ‘The defendant * * * hereby consents to pay to plaintiff * * * the total sum of $2,000 in full payment and satisfaction of all claims and causes of action involved in the above entitled cause now pending in the above entitled court.’ Following the filing of the said consent by the defendant, plaintiff filed a notice declining to accept the sum of $2,000 in full satisfaction of all said claims and the trial court thereupon denied the motion for a new trial.

At the hearing on the motion the court remarked that the doctor's bill was ‘Pretty high for what he said he did,’ and the attorney for plaintiff replied ‘It is pretty strong.’ The court then stated he didn't ‘Take too much stock in the gravity of plaintiff's injuries.’ The trial judge further stated that had the matter been tried without a jury, he would have awarded a sum in excess of the verdict rendered. He apparently endeavored to increase the award of the jury by the imposition of conditions which were not acceptable to plaintiff. The result was that the motion for new trial was denied and the jury's verdict was undisturbed by the trial court. Under the circumstances presented, we are unable to say that the trial court abused its discretion in refusing to grant a new trial. Since the verdict of the jury was not affected by the order refusing the new trial, it becomes unnecessary to consider or pass upon the question of the power of the court to modify the verdict.

Judgment affirmed.

MUSSELL, Justice.

GRIFFIN, Acting P. J., concurs.

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Docket No: Civ. 4259.

Decided: September 25, 1951

Court: District Court of Appeal, Fourth District, California.

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