Hatch v. Lewis

DRAPER, P. J. Jury verdict was for plaintiff for $500. On motion for new trial, the court directed additur of $2,000 (Jehl v. Southern Pac. Co., 66 Cal.2d 821 [59 Cal.Rptr. 276, 427 P.2d 988],), raising the total award to $2,500, and granted new trial, limited to the issue of damages only, if defendant did not accept the additur. Defendant did not accept, but appealed.

Although the notice of appeal runs to the judgment as well as the order granting limited new trial, appellant’s brief states that he does not prosecute the appeal from the judgment. Thus there is no attack on the adequacy of the evidence to support the verdict and judgment.

Rather, defendant-appellant argues that the new trial should not have been limited to the issue of damages only, but should have been granted as to all issues.

Limitation of new trial to the issue of damages is within the sound discretion of the trial court, but that discretion is abused if ‘ ‘ the question of liability is close, if the damages are grossly inadequate, and if there are other circumstances which indicate that the verdict was the result of prejudice or an improper compromise” (Hamasaki v. Flotho, 39 Cal.2d 602, 605 [248 P.2d 910] ; Leipert v. Honold, 39 Cal.2d 462 [247 P.2d 324, 29 A.L.R.2d 1185]; Cary v. Wentzel, 39 Cal.2d 491 [247 P.2d 341]).

A core question is whether it can reasonably be said that “the liability issue has been determined by the jury” (Hamasaki v. Flotho, supra, at pp. 606-607). If so, the limited new trial may be granted. Otherwise, the limitation is error. Of course, failure of the jury to allow the full amount of undisputed special damages ‘‘is usually convincing evidence that the jury failed to make a decision of the liability issue,” but ‘‘gross inadequacy of unliquidated general damages may be just as convincing’ ’ (id.).

[152]Plaintiff was injured when, leaving defendant’s auto salesroom, he walked into a glass door which he thought was open. The doorway consisted of two sliding panels of glass. There was conflicting evidence as to what decals were on the glass at the time of the accident. Plaintiff suffered cuts upon the forehead and legs, which required suturing. He was 34 years old, an a.ir force enlisted man, married, and had one child. He was awaiting transfer to overseas duty. He has a permanent scar, about 1% by 1% inches on his left forehead. He spent four days in the hospital at a cost of $188, and lost $153 in expected income from a part-time employment. The jury award of $500 thus allowed $159 for general damages.