Nason v. Leth-Nissen

BRAY, J. Plaintiff Sophie Nason sustained a head burn in the course of a “permanent wave” treatment in defendants’ beauty shop. In a trial without a jury, the court awarded plaintiffs damages in the sum of $1,014.

There are only two points raised by defendants on this appeal: (1) that the evidence is wholly insufficient to support the amount awarded, and therefore the damages are grossly excessive; and (2) the trial court erred in refusing to strike certain testimony concerning insurance.

[72] Damages Not Excessive

In considering the first point raised by defendants it is necessary to keep in mind the yardstick by which an appellate court must measure those damages. “The power of the appellate court to reduce or reverse judgments on the ground that they are excessive exists only when the facts are such that the excess appears as a matter of law, or is such as to suggest at first blush passion, prejudice or corruption on the part of the jury. [Citing cases.] Subject to this limitation the damage resulting from pain, suffering or injuries of the nature of that here complained of, being incapable of exact measurement, its compensation in terms of money is necessarily only approximate, and must be left to the jury to determine.” (Hallinan v. Prindle, 17 Cal.App.2d 656, 671 [62 P.2d 1075].)

The evidence shows that on May 25, 1944, plaintiff received a burn on the left portion of her scalp, approximately an inch in diameter. Her first medical treatment was four days later. The doctor to whose office she went testified that the burn was crusted and there was a degree of inflammatory reaction around it. The hair was matted into the crust and it looked like a first and second degree burn. He saw and treated her on four occasions at his office. Plaintiff testified that she suffered pain from it at times for fully six months, and for that period was dragged out, sick and nervous from it and could not do her housework as well as formerly. She stated that it was still tender at the time of trial, which was over two years from the date of the injury. The burn cleared up in a matter of 10 days, and the doctor felt at that time that plaintiff would have no further trouble with it. The doctor further testified that the area of such a burn in his opinion could remain sore and tender for five or six months, and that it was a very painful burn. Plaintiff testified that during the six months’ period she was able only to have her hair “caught up a bit, just have it combed a bit,” and at times had to receive oil treatments for her scalp. Plaintiff was a housewife and not a wage earner, and hence there was no loss of wages, nor any expense incurred as a result of the injury, other than the doctor’s bill of $14. There was no hospitalization, no permanent scar, and the hair eventually grew back on the injured spot.