*1 August 1, Argued July 10, and remanded reversed MULCARE, Respondent. BERANEK, Appellant, Raul Soto-Seelig, Portland, the cause argued on him the briefs Paul Rask, With appellant. Portland. & Roehr SweeJc, Samuels, Vergeer, H.

Walter filed the brief cause Sweek, Portland, argued for respondent.

HOWELL, when it motorcycle Plaintiff was riding by from the rear an auto owned and operated hit Plaintiff this action seeking general defendant. filed and in a injuries and, personal for second for count, motorcycle. to his damages

A returned a for for his jury plaintiff verdict to the and awarded damages motorcycle plaintiff $5,429.23 as special for medical and damages expenses lost wages. no general damages. awarded Counsel for for plaintiff then moved a mistrial. How- ever, the trial court sent for back further deliberations after them that must instructing they find general before damages could award they special damages. The court then granted motion for plaintiff’s a mistrial. Later, and filed accepted original verdict and entered a judgment thereon. Plain- tiff appeals.

As a a general rule, verdict for special damages an allowance for general is im damages proper. Flansberg v. 239 610, Or 399 P2d 356 (1965). Baum v. Bonar, 258 Or 484 P2d 294 (1971), we held that where the issue of gen eral is damages controverted in the pleadings evidence, and the jury could have concluded that plaintiff had not suffered any substantial injuries, a verdict damages is a valid verdict.

In Brannan 260 Blemp, Or 336, 490 P2d 979 damages found we

(1971), there was where no damages improper to be sus- testimony plaintiff medical uncontroverted he some and that had suffering tained some extensive. injury, although Miller, Chopp see cases, For other similar Drennan, and Moore v. Or P2d 106 (1973), P2d 1250 (1974). suf- that he alleged

In the instant and tissues to muscles fered lacerations injury answer The defendant’s of his and ankle. right denied the but injury admitted “some” of the injury. extent as to

The evidence the permanency was seriously and the extent of his injuries controverted. *3 evidence that was uncontroverted there days leg was five with hospitalized time. he was in some at that

elevated that pain There was that he was at home in bed also evidence with his elevated for three weeks and he would that have some scars on his This is evidence leg. of general damages. the circumstances we believe that the facts

Under Paulson, fall the of Flansberg within rule supra, im the that trial should have the entered proper. verdict.

Reversed and remanded for a trial. new O’CONNELL, C.J., dissenting.

I dissent for the reasons in my dissenting stated in opinion Flansberg of what refinements

P2d (1965). Regardless in distinguishing general this court makes as well as our previous the damages, present dam- cases, demonstrates view juries of as an indivisible rather than a ages composite unit the elements of legal separate damages.

There is no reason should not be why per- mitted to in terms of solely measure defendant’s fault other are plaintiff’s medical or items which de- costs nominated special damages, even though received which caused him and suffering.

We took a step Bonar, forward Saum v. 258 Or 532, 484 we should now (1971); go whole way and to fix permit the measure of damages referring to the type damage which is being allowed.

DENECKE, J., dissenting. In view of our inability solve this problem by using traditional I rules, join made proposal Chief Justice O’Connell in his dissent.