ROEDDER v. ROWLEY (1946)

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

ROEDDER v. ROWLEY et al.

Civ. 15050.

Decided: February 27, 1946

Spray, Davis & Gould, of Los Angeles, for appellants. Tripp, Callaway, Sampson & Dryden, of Los Angeles, for respondent.

From a judgment in favor of plaintiff in the sum of $13,964.83, after trial before a jury in an action to recover damages for injuries received as the result of an automobile accident, defendants appeal.

The evidence being veiwed in the light most favorable to plaintiff (respondent), the essential facts are:

On April 1, 1944, defendant corporation was the owner of a truck and trailer which was being operated by defendant Lindsley. Due to defendants' negligence the truck collided with a dump truck owned and driven by plaintiff. At the time of the accident plaintiff was 41 years of age, six feet four inches tall and weighed more than two hundred pounds. The vertebrae near the top of his spine, despite his size, were no larger than those in a woman of moderate size and the vertabrae in the lower part of his back were no larger than those of a medium sized man. In addition the lower spinous process including the sacrum had failed to fuse, thus predisposing plaintiff to strain injuries to an extent greater than that of an average person who has a structurally normal back. In addition to the incomplete development of the spinal structure there was an excessive growth of bony tissue indicating an arthritic process on the vertebrae of many years standing. Prior to the accident plaintiff had never had any pain or trouble with his back.

At the time of the accident plaintiff was dazed but stated to a police officer that he did not believe he was hurt and refused to go to a hospital. The only appearance of injuries on plaintiff at the time of the accident was a tear in the back of his jacket and an area of broken skin approximately three inches in circumference on his back just above his waistline. After the accident plaintiff stayed at the scene thereof for approximately half an hour. Then he was taken home where he discovered that he had a prickly sensation in his back and a numb feeling in his leg and arm and also his head ached. The following day he went to his family physician who told him he had a contusion on his back and gave him electronic treatments. During the remainder of the day his arm ached, his right leg would go to sleep and his head ached. He remained at home during the month of April and returned to work on May 26, 1944.

The symptoms above mentioned were noticeable after plaintiff would sit for an hour or two and so continued to the time of the trial.

From May 26, 1944, until the time of the trial he drove his truck approximately four hours a day, though during one interval of three and one-half months he drove an average of about twelve hours a day. He absented himself from his work for a week or more each month because of pain and suffering resulting from the collision.

X-rays were taken of plaintiff's back and medical experts gave it as their opinion that he had suffered a back strain, partly muscular and partly to the bony structure of the back as the result of the accident.

Plaintiff's truck was damaged in the sum of $2314.83. He paid $60 for having it towed from the scene of the accident, and $90 for medical bills and x-rays. For eleven months prior to the accident his average earnings were $565.85 per month. For eight months following the accident his average income was $347.92 per month which resulted in special damage for loss of income in the sum of $1,743.44. The total special damages proven amounted to $4,208.27 leaving general damages awarded plaintiff by the jury in the sum of $9,756.56.

Defendants concede their negligence and rely for reversal of the judgment solely on this proposition:

The judgment awarding general damages is excessive.

This proposition is tenable. The evidence discloses that plaintiff suffered special damages in the amount of $4,208.27. The judgment being for $13,964.83, the difference of $9.756.56 constitutes an award by the jury of general damages to plaintiff for pain, suffering and permanent disability.

The rule is settled in California that the sum to be allowed as damages for personal injuries is left, in the first instance, to the sound discretion of the jury subject to review by the trial judge in ruling upon a motion for a new trial and the power of an appellate court to relieve a defendant from a judgment for an amount so plainly and outrageously excessive as to indicate that the judgment was reached as the result of passion or prejudice and was not predicated upon a fair and honest consideration of the facts. (Bellman v. San Francisco H. S. District, 11 Cal.2d 576, 586, 81 P.2d 894.)

Applying the foregoing rule to the facts of the instant case, since it appears that plaintiff's general damages consisted solely in being incapacitated for work for less than two months, occasional headaches and at intervals numbness in his leg, the judgment for such general damages in the sum of $9756.56 is outrageously excessive and indicates that it was reached as a result of passion or prejudice upon the part of the jury.

Our views find support in numerous decisions of appellate courts of this state.

In Bellman v. San Francisco High School District, supra, a high school girl, 17 years of age, suffered a fractured skull as the result of an accident. Thereafter she developed severe headaches and nausea and suffered dizziness, occasional vomiting, loss of weight and was confined to her bed for three weeks. The Supreme Court held that an award of $15,000 was so grossly excessive as to raise a presumption that it could not have been based upon a fair consideration of the facts relating to the injuries and reduced the judgment to $5,000.

In O'Donnell v. Excelsior Amusement Co., 110 Cal.App. 685, 294 P. 737, 295 P. 86, plaintiff received injuries which caused him to be hospitalized for forty-two days and kept away from work for fifty-two days, several teeth were loosened, two of which were extracted, and he sustained a compound fracture of the jaw causing him a slight impairment of the use of his jaws. He also complained of poor eyesight and hearing. The District Court of Appeal reversed a judgment in favor of plaintiff in the sum of $7,500 upon the ground that it was excessive. The Supreme Court denied a hearing.

In Gladstone v. Fortier, 22 Cal.App.2d 1, 70 P.2d 255, the plaintiff suffered a concussion of the brain and from it she experienced headaches for a year and a half. She was also susceptible to fatigue and found difficulty in mental concentration. She suffered a loss of salary in the sum of $600 and incurred medical expenses in the sum of $110. A judgment was awarded in favor of plaintiff in the sum of $6500. The District Court of Appeal reduced the judgment to $4,000 upon the ground that the award of general damages was excessive.

In Hoover v. King, 134 Cal.App. 16, 24 P.2d 871, the plaintiff had a swelling in the right knee, right ankle and left elbow as a result of an accident. She remained in bed and was partially disabled for four weeks. Her medical expenses amounted to less than $300. The District Court of Appeal reversed the judgment in the sum of $5000 for the reason that the judgment was excessive. (See also Steinbrun v. Smith, 123 Cal.App. 697, 700, 11 P.2d 868; Epply v. Los Angeles Creamery Co., 216 Cal. 194, 195, 13 P.2d 664; Wiezorek v. Ferris, 176 Cal. 353, 357 et seq., 167 P. 234; Hallinan v. Prindle, 17 Cal.App.2d 656, 673, 62 P.2d 1075; Wilburn v. United States Gypsum Co., 16 Cal.App.2d 111, 112, 60 P.2d 188.)

In view of the evidence in the present case a judgment for general damages in a sum exceeding $2500 cannot be permitted to stand; therefore defendants are entitled to a new trial upon the sole issue of the amount of general damages, unless within thirty days from the filing of the remittitur in the court below, the plaintiff shall remit from the judgment the sum of $7,256.56.

It is ordered that if such remission be so made then the judgment shall stand affirmed with neither side to recover costs upon appeal; otherwise it shall stand reversed and the cause be remanded for a trial upon the sole issue of general damages.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.