*1 Argued September February 16, 1964, affirmed
FLANSBERG v. PAULSON et al
Henry Devlin, McMinnville, W. argued cause *2 for With him on the brief respondent. was Cummins Devlin, & McMinnville.
Before Chief and Justice, McAllister, Perry, and Justices. Denecke O’Connell, Lusk, McAllister, C. J.
The Ellen plaintiff, brought Flansberg, action to recover damages for personal injuries allegedly sustained when the automobile in which she was rid- was struck from an ing the rear by automobile oper- by ated the defendants. The court granted mistrial of what it deemed misconduct of the in at arriving its and defendants verdict, De- appeal. fendants contend that the court should have entered for on the second of plaintiff two verdicts by the jury. returned
In her complaint amended the plaintiff alleged injuries her consisted “of shock that to the nervous strain cervical system, posterior muscles and strain of the anterior cervical ligaments, muscles and of the rhomboid muscles.” She strain further alleged had incurred medical, hospital that she and ex- drug and had lost in $245.65, penses totaling wages the sum $70., prayed $315.65 .of damages $10,000. court instructed that if it found that plaintiff was entitled it first determine the should of gen- suffered by plaintiff. eral court further 613 was found that plaintiff
instructed
if
then
it should
determine
general damages,
entitled
the amount of
if
sustained
damages,
any,
form of
blank
her. The
was
verdict with
given
which to insert
the amount
spaces
any general
awarded.
verdict
in favor
jury first
returned
$315.65,
assessed
rejected
assessed no
The court
accord with the established
rule
order
an award of special damages
to support
City
Sedillo
an award of
general damages.
must be
Portland,
Baden v.
(1963);
234
P2d 115
Co., P2d
Sunset Fuel
instructed
again
and cases there cited. The
entitled to
if
found that
first
the amount of gen
it should
determine
and then deter
eral
sustained
plaintiff,
*3
her
if
any.
mine
of
special damages,
the amount
after
further deliberation
returned
retired and
in
favor
finding
new verdict, again
plaintiff’s
with a
in the sum of
damages
$315.65,
assessing general
and
As stated
above,
assessing
special
but
al
amount
was the exact
$315.65
exact amount
and the
assessed
leged by plaintiff,
first verdict. The court refused
and declared a mistrial.
the verdict
to accept
refusing
accept
second
judge
trial
course
this court
approved
followed
verdict
In Stem v. Handy, supra, awarded damages of plaintiff general $1.00 amount of $399.55, exact the doctor, hospital incurred her. and ambulance bills The court received and entered judgment the verdict it. upon days Two its own the trial upon motion, later, set aside and granted a new trial. We out that affirmed, ORS 17.630 pointing authorizes to set aside a judgment trial judge grant a new resulted from trial if the verdict misconduct of the jury- Co., Fuel Baden Sunset supra, the jury general damages of
awarded $100 trial judge, $455.50. believing award a nominal refused and instructed verdict the jury to accept to either or to return that verdict modify for de- *4 After further deliberation the fendant. jury awarded damages of general $400 plaintiff This verdict was received and a judgment $155.50. aside trial court set thereon. Thereafter entered granted judgment held a new trial. We general original more was award of have should that the first verdict than nominal and considering whether the error been received. jury resubmitting entitled case to the the court pointed out that conduct a new trial we to the conduct of was similar to in Baden of the supra. We Cornett, in Hall v. condemned said: “* ** the court instructed the In each case general in- was of the that the award support verdict for dam- sufficient ages. directed recon- was In each case the they that if found instructions case with sider the they than nominal award more must jury, damages. instead of case the In each general damages, increasing actually its award damages portion merely transferred originally awarded amount compliance Although with a literal was in the condemned court, it was
instructions Hall case verdict. to an invalid a stubborn adherence found the conduct The court It follows that if, of misconduct. evidence intrinsic properly had resub- the court at bar, the case here our decision would to the the case mitted supra.” Cornett, Hall controlled be 120. at the second verdict that because we held
In Baden verdict, as the first total same was prejudiced the resubmission not been plaintiff had judgment jury, entered and ordered case to the verdict. first on the contends that defendant at bar, cáse
In the
in favor
and that
valid
second
been entered. D'e-
have
should
plaintiff for $315.65
*5
v.
Portland,
fendant
City
Sedillo
relies
234 Or
Locatelli
v.
In supra, the first awarded instance, plaintiff general $332 and no special damages. was the exact $332 amount of the doctor bills claimed by the plaintiff. The court received the verdict and entered judgment but thereafter thereon, granted a new trial. This court reversed and said that both the trial court and this court were forbidden to speculate the men- concerning tal by which the process jury fixed the general dam- in the exact amount of ages the claimed dam- court made it ages. This clear, however, Hall v. Cornett, which was cited either overruling v. with or Stein Handy, approval, which was dis- tinguished.
In Locatelli v. Ramsey, supra, jury first awarded which was all $500, designated as special damages, although parties had stipulated “had incurred medical expenses, whether or necessary the sum of not, $229.50.” trial court rejected the verdict because it was an award of special damages without supporting award then general damages. split up the $500, and awarded $229.15 $270.85 as general damages. On appeal this court affirmed, Locatelli out distinction between pointed Hall v. Cornett as follows:
“The distinction between the jury’s action in the instant case and the jury’s action in the Hall Cornett Hall v. Cornett the final case is this: verdict which the rendered after resubmission 61G equaled expenses plus proven medical one dol- decided that the
lar. In the instant case plaintiff’s damages, including together, all expenses, amounted to When medical $500. $229.15 the court instructed general damages, the be awarded without could not deliberation allowed doctor after further difference between bills as the doctor bills and general damages. As supra, pointed Rowe, out in Mullins v. it is within *6 Oregon jury generous power of an to be as or the long penurious as it sees so as it remains fit, as within pleadings proof.” at the 241-2. jury City supra, Portland, first v. the Sedillo in a verdict which did awarded the $537.85 segregate general special ¡special amount of awarded was the amount rejected complaint. alleged trial court the in the again. .out returned and sent the verdict form with the crossed out $537.85 the same verdict which written the under was word inserted, as revised was received and The verdict “General.” judgment thereon. This court but affirmed, entered the first verdict a said was valid in a dictum announced in Mullins Rowe, the rule v. under verdict have received. been and should supra, appears Rowe, that in Mullins v. and in It City Portland, in Sedillo the dictum if a first effect instance has held damages, more than nominal awards general designating award as or either general designating award as either .or without damages, verdict should be received and a though judgment even thereon, entered amount the amount of the same as awarded by plaintiff. proved or claimed no deviation there has been hand, the other On in a if a brings improperly from the rule without an award for special verdict ad and then to stubbornly attempts instruc disregard here to its invalid trial in his dis judge from the may, tions court, a mistrial. declare cretion, did
In the case at
the court
not receive
bar,
im
and enter
thereon,
second verdict
the verdict and declared a mistrial.
mediately rejected
Co.,
Fuel
In Baden v. Sunset
we condemned as
supra,
to an invalid
con
“a stubborn adherence
verdict” the
in merely
“to
transferring
duct of
of the amount
awarded
originally
portion
In this
damages.”
case,
jury,
instead
general damages only
portion
transferring
awarded
originally
special damages,
The trial
the entire amount.
judge ap
transferred
trying
concluded that
to comply
parently
instructions,
stubbornly
letter of his
while
with the
to award
decision
her
adhering
plaintiff only
its
and no general damages. We think
*7
to condone
was not
this defiant
judge
required
the trial
his instructions. He did not err in re
disregard
mistrial.
granting
the verdict
jecting
in Hall v.
the rule enunciated
line between
Rowe,
Mullins v.
later rule of
Cornett, supra,
and the
it
is
be
discernible.
may
narrow,
supra,
the Hall v. Cornett
rule was
best
rationale for
stated
in Fischer v. Howard,
in his dissent
201
by Lusk,
J.,
476, ‹
at 201
Or
which since this has finally persuaded part to “withdraw” the was against which the dissent di- Fischer v. Howard Handy, supra, 212 rected. See Stein v. Or at 234. judgment of the trial court is affirmed. dissenting. O’CONNELL, J., It is obvious from our cases and from in those jurisdictions juries, fully other instructed plaintiff’s right personal injury cases, frequently feel that an award of so-called dam ages adequate compensate itself for his entire loss. ‹ reported these cases Moreover, very undoubtedly portion constitute a small of all the only cases which awards the amount of damages sought. juries commonly The fact that despite an award make such existence of obvious “general” damages suggests, perhaps, elements of (when forbidding practice such a rule can be verdict) ignores detected the form of the the reali everyday ties of life and should be re-examined. judges Schneidermann, trial of this state. See Van Lom v. unduly judicial supra, the Constitution 113. When limits power accept using must it. But we should be we careful about prerogative way impose in such a as to our own restraints actually unwarranted authority on the of the courts where the cases are opinion tried. Whatever room for differences of proper may about the construction of the verdict on be the first case, in this there can cause of action suggested of action—that contrary be none—and none is invalidity of the verdict on the second cause —about improper inconsistent, compromise verdict, it is an court, to the instructions of and such a verdict as says that, Yet not have been received. this court now should speak might simply spoken, counsel did not when he have judge presided power over the trial was without the who upon illegal That, based such an aside a verdict. set it, power I is a mistaken unfortunate exercise of as view our part.” ‹ See cases Anno., cited in 20 ALR2d *8 Nothing jurors things requires of nature or anyone personal injury damages else to conceive of special. average juror two and forms, viz., The apparently not make does this but feels, distinction performed rather, his function is if he arrives figure compensate at a which will the or punish (or jurors accomplish the defendant that which award). › accomplish fixing seek to an question presented by appeal,
The and one majority attempt which the does not is answer, permitted or whether not the should be to award plaintiff damages equivalent only his medical expenses, earnings, his loss of or both. suggested
It to be seems are consequential damages form of if damage no finds basic is source from which consequential damages Certainly plain- can flow. tiff is entitled to recover medical injured. or costs of loss earnings proper he unless is And so it is say consequence injury. that such are a of
Precisely thing may be same said about they consequence too must be a of in- — jury. type But neither flows from the type each other; measures a distinct invasion plaintiff’s Recovery interest. for medi- impaired cal is allowed because costs defendant has bodily plaintiff’s physical integrity. condition—his damages represent rehabilitating, The cost bodily possible, physical far or condition plaintiff. Recovery pain suffering pain has allowed defendant caused suffering by inflicting physical impairment upon plaintiff. precede If must one these it is other, › Kalven, Law, Jury, Injury Personal Dam age Award, L 19 Ohio St J *9 say damages which the
more reasonable to
that
regarded
“special”
be
courts have denominated
should
suffering
precedent
pain
and
flow from
impairment
physical
rather than the converse.
returning
jury
a verdict
If the
is to be criticized for
nothing
damages
“special”
a
for
in certain amount and
damages,
ground
“general”
should
of criticism
damages
“special”
a
lack
foundation
be not that the
jury
nothing
or an
but that
has allowed
antecedent,
suffering
impairment
earning
pain
or
ca
and
of
for
subject
pacity.
verdict
be
before the
would
However,
ground one would
on this latter
have to
to attack
required
pain
to find that
and
that the
is
assume
earning
suffering
capacity
pres
impairment of
or
impropriety
some of the cases the
case. In
ent
only
damages
allowing
special
ex
is
of the verdict
nothing
ground,
plained
that
has
i.e.,
been
on this
earning
suffering
impairment
pain
or
for
allowed
pacity. fi
reasoning,
Adopting
if
a verdict
ca
general
damages
special
allowing
and no
is
allowing general damages
unacceptable,
verdict
unacceptable.
special
also
should
be
This
clearly
as in
where,
the result
v.
be
Mullins
should
If we continue insist think plaintiff’s terms recovery justification there is of course a theoreti-
cal for the grounds that both requirement types must be allowed if proven. But if the returns dam- awarding ages and no general damages, possible jury has decided that did not suffer pain to an extent warranting The rule compensation. ap- plied in the majority seems to be opinion based upon *10 the assumption that is pain suffering always pre- ent in injury cases. It has also been personal assumed that the jury where does award something as general the is able to determine whether amount awarded in fact represents general damages or merely is a “nominal” amount. Lom Schneiderman, Van
The case of
damages admittedly hold that general damages, awards we nominal. fl But the award is this is not suppose $50. Are that these substan Is Or enough? $25? $10? than say gave How can we that less tial? for suf to enough compensate pain it? money no for when is fering equivalent treatment of this problem to me our It seems unsatisfactory and that we should a rule adopt with is more in common the way juries which in personal injury cases. actually measure to jury study seems show University Chicago to do make nice calculations as what not juries for elements of dam allowed the separate should be they rather them, have refined see we ages its as a unit identified with amount of the verdict not form of a gestalt. (cid:176) words, other parts, our cases that matter from previous It appears the trial judge is admonished how strongly full as the the claim use it anyway tries use recovery, measure part .special damages allocating damages. – move in this right makes the If the jury nothing can do about the court numbers, game *11 way is no to how detect in that event I believe records conclusion. reached its how hard the court tries matter show that would its measurement reconsider force the fl Baden (1960). 116, Co., Or P2d 225 357 410 Fuel v. Sunset (cid:176) Injury Law, Jury, Personal Dam Kalven, and The (1958). age Award, L 158 Ohio St J 19 – Hall (1952). Cf., al, P2d 240 231 Cornett et 193 Co., P2d v. Sunset Fuel Baden instant case example. provides extreme an even more pretty the utimate result is much the same. appear, It does the rule have therefore, not we adopted considering is worth its the additional salt imposes judicial machinery upon load retrying reviewing this state in the form of oases and appeal. them on up practicalities
It is I time, think, to face to the thoroughly of this situation and hold that if plaintiff’s damages, instructed measure verdict will be disturbed for failure attribute categories separate a dollar amount to special damages. present I would hold in the case that the verdict first returned should have been received.