Tornell v. Munson

PEEK, J.

Plaintiffs seek to recover damages from defendants by reason of defendants’ alleged negligent operation of their automobile. By their answer defendants denied plaintiffs’ claim and affirmatively alleged that the injuries, if any, suffered by plaintiffs resulted from their own negligence. A trial by jury resulted in a verdict for plaintiffs in-the sum of $3,000. Both parties moved for a new trial — the defendants upon substantially all of the statutory grounds — the plaintiffs primarily upon the ground of insufficiency of the damages. The order of the trial court denying defendants’ motion and granting plaintiffs’ motion upon the sole issue of damages does not appear to be an abuse of discretion under the facts presented by the record.

However, defendants contend that such order granting a new trial on the single issue of damages was an abuse of discretion in that the surrounding facts and circumstances conclusively show as a matter of law that the inadequate verdict was the result of a compromise on the issue of liability. The question of the defendants’ liability, it is said, was the only issue contested, and that the plaintiffs’ case on this point was very .weak. In addition, the compromise character of the award is demonstrated by the fact that the jury after having been out for more than two hours requested further instructions, and after another three and one-half hours returned a unanimous verdict for a sum less than the special damages alleged and proved.

If, as appellant declares, the award is less than the special damages suffered by Mrs. Tornell and none of that amount can be considered as general damages, then upon the rule as stated in

Bencich

v.

Market Street Railway Co.,

20 Cal.App.2d 518 [67 P.2d 398], the order granting a new trial should

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include all of the issues. But if it can be said that the jury awarded some general damages, although inadequate, then the order of the trial court, if otherwise correct, must be sustained.

Appellant states that the special damages suffered were damages to automobile $600, medical expenses $797.98, and loss of earnings to date of trial $6,400, or a total of $7,797.78, and that therefore the award of $3,000 is $4,797.78 less than the special damages. However, if the loss of earnings is not a special damage but to the contrary a general damage then the sum of $1,602.22 (automobile damage and medical expense totaling $1,397.78) would be the portion of the award applicable to general damages. The question thus presented is whether or not such award of general damages is of sufficient substantiality as not to be so tinged with the attributes of compromise as to warrant a retrial on all issues.