Lambert v. Kamp

LUCAS, J.,

pro tem.

Appellant, who as plaintiff in the court below recovered judgment on a verdict for $300 as damages for the death of a son eight years and eight months old, appeals from said judgment on the sole ground

[390]

that the recovery is inadequate. It is contended that since the special damages for hospital, medical and funeral expenses total $235, the balance of the judgment, or. $65, as general damages for the deprivation of the society, comfort and protection of the minor is so palpably inadequate as to render the verdict grossly absurd.

Appellant asks that the ease be remanded for a new trial on the issue of damages alone, if that be held proper, and if not, then on all of the issues. It is earnestly urged, however, that the issues of negligence on respondents’ part and of contributory negligence on the part of appellant were effectually and finally removed from consideration by reason of the jury’s verdict for appellant and the implied findings on those issues in his favor.

This is not the first time since the rendition of the verdict and the entry of judgment that a request for a new trial has been made. The question of appellant’s right to a new trial was passed upon by the lower court, and the propriety of that court’s action in refusing a new trial is properly reviewable herein. (Sec. 956, Code Civ. Proc.;

Wilcox

v.

Hardisty,

177 Cal. 752 [171 Pac. 947] ;

Hughes

v.

De Mund,

195 Cal. 242 [233 Pac. 94].)

The question before this court, therefore, is not whether the judgment is so inadequate as to warrant this court in sending the cause back for a new trial, but, rather, did the trial court err in denying appellant’s motion for a new trial.

In his notice of intention to move for a new trial appellant specified all of the grounds permitted by the statute, but since only the amount of the judgment is under attack it will be necessary to refer to but two of them, namely, “excessive damages appearing to have been given under the influence of passion or prejudice,” and “insufficiency of the evidence to justify the verdict.” The latter ground is really the only one to which serious consideration need be given, for, while a new trial may be granted in the ease of excessive damages appearing to have been given under the influence of passion or prejudice, there is no justification in law for disturbing a verdict or finding because of passion or prejudice, of a jury in giving insufficient or inadequate damages. (8 Cal. Jur. 833;