Jenkins v. Dahnert

DRAPER, P. J.

Plaintiffs are husband and wife. In separate actions which were consolidated for trial, they sought damages for personal injuries sustained in an automobile accident. A jury awarded $4,000 to the husband and $203 to the wife. Although represented by counsel at trial, each appeals in propria persona. No motion for new trial was made. The sole issue raised on appeal is the claimed inadequacy of the damages awarded.

The amount to be awarded in a case of this type is' a question of fact. Thus it is to be determined by the jury in the first instance, and reviewed by the court on motion for new trial

(Gersick v. Shilling,

97 Cal.App.2d 641, 647-648 [218 P.2d 583]). The issue must be presented to the trial court by motion for new trial. It cannot be raised for the first time on appeal, whether it be claimed that the damages awarded are inadequate

(Warner

v.

Urbach,

131 Cal.App.2d 5 [279 P.2d 1024] ;

Alexander

v.

McDonald,

86 Cal.App.2d 670 [195 P.2d 24]), or excessive

(Bate

v.

Jolin,

206 Cal. 504, 508 [274 P. 971]).

We have, nonetheless, reviewed the record. The award to Mr. Jenkins exceeds by more than $500 the total special damages claimed to date of trial, and that to Mrs. Jenkins equals her claimed specials. As to Mr. Jenkins, there was evidence of another injury which the jury could have considered in reduction of his claim of expense attributable to this accident. As to Mrs. Jenkins, there was admittedly a full and complete recovery within some four weeks. Moreover, the jury was not required to accept the testimony supporting the claimed special damages of plaintiffs

(Gimbel

v.

Laramie,

181 Cal.App.2d 77-80 [5 Cal.Rptr. 88] ;