TOSHIO HAMASAKI v. FLOTHO (1951)

This appeal by defendants is from an order of the trial court granting plaintiff's motion for a new trial on the issue of damages only.

Facts: Defendant Fred Flotho, Jr. was driving an automobile, owned by defendant Fred Flotho, south on Carmelita Street in Los Angeles, when plaintiff, a boy of about six years of age, ran from behind a truck into the street in front of the automobile driven by defendant Fred Flotho, Jr. The automobile struck plaintiff causing him serious personal injuries.

It was stipulated that the medical and hospital expenses were $817.10.

The point of the accident was 195 feet from the nearest crosswalk. There was a sharp conflict in the evidence as to (1) the speed at which the automobile was traveling just prior to the accident and (2) the position of the car upon the street at the point of the accident.

A jury returned a verdict in favor of plaintiff in the sum of $1000.

The trial judge granted a new trial on the issue of damages only unless defendants agreed that the damages should be assessed in the sum of $6682.90. This defendants declined to do.

Question: Did the trial court err in granting a new trial on the issue of damages only?

Yes. Where the evidence as to liability is sharply conflicting and the damages awarded are so grossly inadequate as to indicate a compromise as to issues of liability and damages, a new trial should be granted as to all the issues in the case and not confined to the issue of damages only. (Wilke v. Crofton, 34 Cal.2d 304, 310, 209 P.2d 790; Woods v. Eitze, 94 Cal.App.2d 910, 915, 212 P.2d 12; Shurman v. Fresno Ice Rink, 91 Cal.App.2d 469, 477, 205 P.2d 77; Keogh v. Maulding, 52 Cal.App.2d 17, 19, 21, 125 P.2d 858.)

Applying the foregoing rule to the facts in the present case, inasmuch as the evidence was sharply conflicting as to the question of defendants' liability it needs no argument to demonstrate that the damages were grossly inadequate since it was stipulated that plaintiff had incurred medical and hospital expenses of $817.10, while the jury in awarding a verdict for $1000 gave only $182.90 for general damages. The evidence disclosed that plaintiff had sustained severe fractures of the skull, some depression and separations up to nearly one half inch; that he was permanently and incurably a victim of psycho-motor epilepsy which would require medical treatment for the rest of his life; and that he also sustained a complete fracture of his collar bone.

Such evidence shows the amount of the award was clearly inadequate. That the trial judge so considered it is evidenced by the fact that in conditionally denying the motion for a new trial he required defendants to pay $6,682.90, thus fixing the general damages at more than 31 times the general damages awarded by the jury.

It is clear that the trial judge abused his discretion in granting a new trial on the issue of damages only.

The judgment is reversed and a new trial on all the issues raised by the pleadings is ordered.

McCOMB, Justice.

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