Malcomson v. Pool

allegedly sustained by plaintiff when his car was struck from behind as he slowed or stopped on a highway preparatory to making a left turn into a roadside gas station and restaurant. Jury verdict was for plaintiff in the sum of $2,000. Plaintiff moved for new trial on the issue of damages only or, in the alternative, on all issues. The motion was granted, but new trial was limited to the issue of damages only. Defendant appeals.

Some five months after the accident, plaintiff underwent surgery to effect a spinal fusion. Medical expenses were $1,980.65. The trial court, in granting the limited new trial, found that his loss of wages amounted to “over $5,000,” and there is medical evidence that the type of work he can perform is now limited.

The defense introduced medical evidence that the back condition was wholly the result of a congenital anomaly. Plaintiff’s doctor, on the contrary, attributed the back condition and the necessity of surgery to the accident. The injuries other than that to the back were negligible, and plaintiff does not suggest that the jury could value them, alone, a.t a figure approaching $2,000. The trial judge made clear his belief that the surgery and the long incapacity for work resulted solely from the injury.

“When the jury fails to compensate plaintiff for the special damages indicated by the evidence, . . . the only reasonable conclusion is that the jurors compromised the issue of liability, and a new trial limited to the damages issue is improper.”

(Rose

v.

Melody Lane,

39 Cal.2d 481, 489 [247 P.2d 335]; see also

Hamasaki

v.

Flotho,

39 Cal.2d 602 [248 P.2d 910] ;

Leipert

v.

Honold,

39 Cal.2d 462 [247 P.2d 324, 29 A.L.R.2d 1185].)

[380]

Here the jury award exceeded medical specials by less than $20 and included no allowance for loss of wages, which the trial court found to' exceed $5>000. Although wage losses do not -constitute “special damages” in some technical senses of the term, they are readily measurable in dollars and thus may be distinguished from such items of general damage as awards for pain and suffering. If plaintiff’s back-condition is attributable to the collision there is no question that his loss of wages far exceeds $20 and thus brings the total of undisputed and readily measured damages to more than the $2,000 awarded by the jury (see