Opinion
Plaintiff appeals from an order granting defendant a new trial upon the ground that the sum awarded as general damages by the jury
By occupation a professional deep water helium diver, plaintiff sustained an attack of oxygen poisoning resulting from an incorrect mixture of diving gas (the amount of oxygen being disproportionate to that of helium) supplied by defendant company. While various items of plaintiff’s damage were set forth in his complaint for personal injuries, the jury’s general verdict failed to segregate such items which included loss of earnings and earning capacity. In its order granting a new trial, the court expressed its dissatisfaction with the sufficiency of the evidence as to these latter items. Pursuant to section 657, Code of Civil Procedure, 2 the court also stated that its order was based upon that ground, at the same time specifying its reasons for that conclusion.
Section 657, as amended in 1965 and 1967, also provides in pertinent part that on appeal from an order granting a new trial upon the ground of excessive damages, “it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.” Although plaintiff makes the rather sweeping specification of error that the court’s order did not comply with the statute, it is not urged that the ground for granting the motion is not explicitly set forth, Apparently, therefore, the determinative question here is the existence of “substantial basis in the record” for the reasons specified by the court; under the heading “Ruling on Motion for New Trial” such reasons in their entirety are set forth below. 3
It should be pointed out, initially, that impairment of earning capacity is not the same as the actual (and established) loss of wages between the occurrence of the injury and the date of trial; the latter can be proved with reasonable certainty and are recoverable, therefore, as special damages.
(Swanson
v.
Bogatin,
The key word in the quoted excerpt from
Conner
is “exclusively,” and the rule there invoked becomes inapplicable if the legal principle, while stated, has not been erroneously applied. That is clearly the situation here. The trial court recognized that loss of earning power can be compensated without proof of actual earnings before or after the injury; but it determined that “For all that appeared from the evidence, the plaintiff has been earning, and is capable of earning, as much money by way of various diving and administrative duties and activities as he was previously when limiting himself to deep diving as a career.” The court also made reference to the “psychological impact” on plaintiff of the particular incident alleged in the complaint, stating further that plaintiff now claims that he cannot “fully” perform the same occupational responsibilities encountered before the accident. The above observations, as well as other statements of the trial court in its “Ruling,” sufficiently fulfill the purposes of the statute; by thus “articulating the bases of his decision”
(Mercer
v.
Perez,
It is clear to us, if assertedly not to the plaintiff, that the trial court had in mind several items of evidence which would support a different award than that fixed by the jury. Our inquiry is limited in this regard,
Except for what is described by his doctor as “post-traumatic neurosis,” plaintiff sustained no injury as a result of the particular incident. Although plaintiff testified that a deep dive is anything beyond 180 feet in depth, and, although his ambition (as indicated in the trial court’s ruling) was to be “the world’s greatest deep diver,” plaintiff told his doctor in October of 1965 (some 20 months after the incident) that he had made approximately 50 dives since the incident, 10 of which dives were beyond the 240-foot level. It further appears that within three months after the accident plaintiff made 20 dives in excess of 200 feet. Prior to the accident, plaintiff himself stated, his deepest dive had been approximately 260 feet in depth; his first opportunity to exceed that depth occurred in the latter part of 1964 (several months after the accident), and he experienced no difficulty in making several such dives. A year or so before the trial (October 1969), plaintiff had a diving job for three months at Cook Inlet, Alaska, where the dives ranged from 40 feet to 125 feet in depth; in this regard, plaintiff testified that opportunities to make deep dives do not occur very often: Finally, in the late fall of 1968, plaintiff made two dives off Santa Barbara to a depth of 290 feet.
Plaintiff argued below, and argues here, that he has been limited in his career as a professional deep diver because of his loss of courage and confidence, directly attributable to the incident alleged in his complaint. In conflict with such claims, however, are the several dives mentioned above, some of which exceeded the greatest depth (260 feet) reached by him before suit was commenced. Furthermore, quite significantly plaintiff’s complaint was originally filed in the municipal court and asked for $3,000 general damages plus special damages and loss of earnings. Manifestly the claims of emotional trauma dictated the increase in plaintiff’s demand and the transfer of his action to the superior court; but the eviden
Additionally, there was evidence that plaintiff considered diving was not his main function—at least his deposition (taken in 1967 and parts of which were read to him in open court) so discloses. At the time of trial plaintiff was engaged in various administrative duties as a partner in a California concern. Lastly, and in addition to the above evidentiary picture of plaintiff’s employment status, there is the failure of plaintiff to introduce documentary evidence that he had lost any earnings as the result of the particular happening; true, there was oral testimony of such asserted damage, 4 but it conflicts with plaintiff’s original appraisal of his loss of earning capacity when he filed his action in the municipal court and, pursuant to the rule referred to in Mercer, supra, could have been disbelieved or accorded little weight.
Much is made of the holding in
Connolly
v.
Pre-Mixed Concrete Co., supra,
which restated the rule relied on by plaintiff here. The case, however, is distinguished on its facts and, as thus so often happens, the law of one case is not applicable to another. Plaintiff Connolly was a champion amateur tennis player who, at the time of the accident complained of, was about to enter the professional tennis ranks. She could not then prove that she had ever been gainfully employed, although there was abundant proof of her ability to make money as a professional—various witnesses rendered opinions based on their experience and information concerning the amounts earned by other tennis professionals, one such witness having conducted two professional tours. In our case, however, plaintiff had been, and was, gainfully employed; the fact that he failed to demonstrate satisfactorily the loss of any earnings for the five and one-half year interval between the incident and the trial is certainly some evidence that his earning capacity will not be substantially impaired in the future. In such circumstances, the trial court was sufficiently warranted in concluding that the award for that alleged item of damage was excessive. “The trial judge not only has the discretion to grant a new trial on the ground of excessive damages, but it is his duty to do so, . . . if under the evidence he believes [the verdict] to be too large. [Citations.]”
(Collins
v.
Lucky Markets, Inc., 274
Cal.App.2d 645, 652 [
Plaintiff makes the subsidiary contention that the trial court, contrary to
Scala
v.
Jerry Witt & Sons, Inc., supra,
The order is affirmed.
Wood, P. J., and Clark, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied February 3, 1972.
Notes
Although plaintiff’s notice of appeal encompasses the order in its entirety, his briefs do not challenge that portion of the order granting a limited new trial.
Section 657, Code of Civil Procedure, provides in pertinent part that “When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court’s reason or reasons for granting the new trial upon each ground stated.”
After rejecting other grounds urged on the motion for new trial, the court stated: “On the question of damages, however, the evidence lacked sufficient probative value to support a verdict in the amount returned by the jury. The main thrust of plaintiff’s evidence in this connection was that plaintiff had chosen and was pursuing a career of deep water diving by which was meant diving to depths where the element for sustaining life was a mixture other than air, namely, a mixture of helium, and oxygen. It was brought out by the evidence that the mixture of helium and oxygen must be in very precise proportions, otherwise the mixture is dangerous and can produce severe consequences to the diver. A few days before the incident involving plaintiff, his companion had suffered severe injury because of a faulty mixture. When, a few days later, plaintiff on his dive discovered something wrong with his mixture he was able, probably aided by the knowledge of his companion’s experience, to take
For example, he told his doctor that he made $30,000 the year before the accident in 1964, and that his earnings for the first nine months of 1965 were down $7,000.