Haskins v. Howard

PAULSEN, J. pro tem.* Appeal by defendant from a judgment rendered in an action for damages growing out of an assault.

Defendant struck plaintiff on the jaw with sufficient force to render him unconscious, to fracture his jaw and cause other injuries less severe. Before the time of trial, all plaintiff’s teeth were extracted and he was fitted with dentures.

After trial before the court without a jury, compensatory damages in the sum of $8,500 were awarded to plaintiff, based on a finding that he had suffered a “scalp laceration, a concussion, fracture of his jaw bones and loss of his teeth and a permanent misalignment of his jaw.” Punitive damages were fixed at $1,000.

Defendant moved for a new trail and on the hearing of the motion it was conceded that the evidence was insufficient to prove that the loss of all plaintiff’s teeth was caused by the blow. The court stated: “I will re-examine the evidence . . . and endeavor as best I can to recalculate it.” Several days later, the findings and judgment were modified by reducing the compensatory damages from $8,500 to $8,000. Defendant contends the record now indicates that the court made a deduction of $500 solely because the allowance for loss of teeth was eliminated and that this was such a trivial reduction as to amount to an abuse of discretion.

The contention is without merit. There is nothing in the record, except defendant’s unsupported assertion, to show that the court originally fixed $500 as the amount awarded for loss of all teeth and thereafter simply reduced the total award without a reexamination of the final award in the light of all the evidence. Section 662 of the Code of Civil Procedure was enacted to give trial courts the power to again evaluate the evidence in eases of this kind and make whatever changes are required. We must assume here that the trial judge did what he said he would do and fixed the [340]final award after he had again considered the evidence that related to the remaining injuries.

A more serious question is presented by defendant’s contention that the evidence is insufficient to support the finding that plaintiff suffered “a permanent misalignment of his jaw.” No medical testimony was given on this subject and it is defendant’s position that such evidence was indispensable.

Plaintiff testified that before the blow his jaws were in normal alignment and his teeth met properly; that immediately thereafter, and before his teeth were extracted and dentures supplied, his jaws were out of alignment and have remained that way ever since; that after he was struck he was taken to the hospital where the upper and lower teeth were wired together in such a manner that he could not open his mouth to take solid food and for four weeks he had to live on liquids; that later the wires were attached to his jaw bone; that an operation was performed to repair the fractured jaw and a sear was left on his jaw at the place of incision; that between the time of the assault and the time of trial he had been under the care of dentists and doctors.