*1
3, 1970,
Argued
December
reversed
remanded
and submitted
April 28, 1971
Appellant.
Respondent, v.
SAUM,
BONAR,
.533 appellant. Brad- Schwenn, him on brief were With ley Hillsboro. Batchelor, &
George argued the cause Natta, Helens, G. Van St. respondent. F. Schulte, brief were William On *2 Petersen, and Natta & St. Helens. Portland, Van TONGUE, J. injuries resulting personal
This is an action for plaintiff’s from an accident in which car automobile by was “rear-ended” defendant’s car. The trial court general damages set aside a verdict for in and $1 special damages granted plaintiff’s and $350 motion for a new trial. appeals, contending
Defendant
that under
proper
evidence this was a
verdict and that this court
prior
subject
should re-examine its
decisions on this
adopt
by
and should
the views as stated
Justice
dissenting,
Flansberg
v. Paulson, 239
O’Connell,
(1965),
Or
The in this case is whether, particular under the facts of this case, should permitted plaintiff special have to award the been expenses earnings, for his medical and loss of with no award of and suf- fering. meaning the decision in this
Since case has only particular with reference to the facts of this case, pleadings proof. pre- and the we shall review As viously this was a “rear-end” stated, automobile ac- liability and of defendant cident in which was clear only related to the extent issue in- juries. Oregon, The accident occurred near Helens, St. January on 3,1969. injuries alleged plaintiff’s complaint
The were as follows: injured
“In and said collision was wrenching straining in that he sustained a the muscles, nerves tendons, and other soft tissues of the entire back from the his base of skull to his hips and a fractured tooth. Theretofore was afflicted with a condition known as osteo- which arthritis, disabling condition, however, not active, painful plaintiff. consequence nor In negligence, of defendant’s and the described said above, osteo-arthritis was caused to be flared up aggravated, painful be made and dis- abling. Said are were, and will remain painful disabling permanent aon basis. Plain- generally damaged tiff has been in the sum of ($50,000.00) FIFTY THOUSAND DOLLARS said account.”
Plaintiff testified that he was knocked uncon- by impact, although recovering scious almost immediately. hospital He was then taken to a where bumps on his head were but found, where he com- plained pain right in the neck and of numbness in his arm. trial he also On testified that his lower back injured in the accident and that one tooth was was found to broken. He have no broken bones, how- days three and after was released ever, from the hospital. complained
A few weeks later he his doctor of neck further in the area and returned to the placed hospital, where his neck was under traction. so he was released. He After a week or testified that prescribed a neck both brace his doctors and also a April by In he was released brace. his back doctor for but testified that because work, be was unable to work continuing pain of in Ms neck.
Plaintiff continued medical treatment until Octo- ber 1969 and testified that be find then was unable to paid work. Prior to trial he was defendant $3,050 wages. for claimed lost At in the time trial Febru- ary plaintiff complained still neck, that his arm, and low back still bothered him. diagnosed
Plaintiff’s doctors his as a condition sprain upper spine. strain or in the muscles They spasms, found no muscle and minimal however, changes. They diagnosis arthritic testified that their largely subjective symptoms. They was based on also plaintiff any previous testified that did them not tell injuries. appeared It also the back brace was prescribed several months after the accident when plaintiff said that he had twisted his back in the bath- tub. examining
Defendant’s doctor also testified that plaintiff previous told him that he had no neck or injuries. examining back He also testified that plaintiff several months after the accident he found spasms, no muscle muscle weaknesses or other symptoms any pain suffering and that he found nothing wrong being with other than over- weight. cross-examination
On admitted that again pre- 1968 he had made claims for injuries. job He vious back also admitted that the he had said he was turned down for because of the job question previously was a for which he was previous injury. turned because of a down In addition, *4 occasionally gone fishing that he had he admitted dur- period ing when he had testified that he was pre- unable to work. He also admitted that he had viously larceny burglary. been convicted of and why such a
Under a record it can be understood jury might, perhaps good with find that reason, alleged injuries had lied about his and that he either suffered no substantial for which compen- he was entitled to substantial award or general damages suffering, sation for for already paid alleged that the to him $3,050 for lost wages was excessive and was also sufficient to com- pensate any pain suffering. At for the same time, why jury might a it can understood still award be him special damages representing unpaid doctor and med- ical bills. proper after case,
In this instructions on the subject damages, exceptions ap- which no to were plaintiff, jury parently taken returned a general damages and $4,443.33 $1 damages special pre- that and found defendant had apply viously paid special damages to $4,093.33 wages), (including leaving special for lost $3,050 net damages of $350. objected ground
Plaintiff to the verdict on the general damages substantial were allowed. The instructed the trial court then before it eould general it must first find find dam- finding ages and that $1 would finding special damages. support The “attempt instructed to “redeliberate” was then acceptable that would be a verdict arrive at again were forms Both verdict delivered court.” to the purpose. (cid:127) jury then sent a note The foreman to the: asking, judge allowed plain “Are we to award the trial
537 brought general damages?” jury then tiff no The was again possible in that “It is to have no and told damages damages.” general special and to have One juror as then “We are confused to the amount said, general permissible put damages” as that would be you tell and that “the court can’t what amount was told jury again. put The then retired there.” jury foreman of the then sent a second The note saying, intent is to award all “Sir, our medical ex- general penses. damages we award Could still $2 law?” Plaintiff moved a within the for be mistrial. was denied and the verdict was That motion received as first returned. in the form filing and fifteen minutes before the
Later, of judgment that verdict, moved a for a irregularity misconduct of the new trial for proceedings. An order for a new trial in the was then appeals. which defendant from entered, Flansberg v. 239 Paulson, In Or 610, 399 P2d by (1965), p a it was stated divided court, 356 at 617: “í;: " ° there has been no deviation from the rule jury improperly brings in that if a a verdict for damages special general without an award for stubbornly damages, attempts then to adhere disregard of invalid verdict the to its instructions judge may, the trial in his court, from the discre mistrial.” a declare tion, City in Sedillo v.
However,
Portland, 234
of
(1963),
115
first
P2d
returned
380
a
28,
Or
special
exact amount
$537.85,
verdict
damages.
further
instructions
After
returned a
damages
alone
with the
no-
verdict
$500
good.
specials.” That verdict was held
“no
tation
For
similar
somewhat
in which
verdicts
cases
other
were
Ramsey,
Locatelli v.
see
223 Or
sustained,
also
(1960),
Rowe,
354 P2d
Or
Mullins
(1960).
A Flans J., O’Connell, berg supra, p tbe at was critical of Paulson, concept of “conse are form which, damages” quential there is “source” un finding general damages, less there has first been type pointing “neither flows from out type distinct measures a of invasion of each other; suggested, p interest.” at It things, among “if the returns a other *6 general damages, awarding special and no jury plaintiff possible has decided that the is that warranting compen pain an extent to suffer did not sation.” suggested by O’Connell, J., in Flans was also
It p berg, that: at of Van Lorn Schneiderman, “The case 187 Or (1949), 11 ALR2d 1195 holds that P2d (Amended) Oregon § (under of the VII, Art Constitution) we cannot set verdict aside on the regard it as excessive. Are we not
ground that we regard which a verdict we as equally bound * * * spectrum being end of ? other “We at the through legal legerdemain this done have damage the bottom of classifying at the amounts damages; say we that nominal ‘nominal’ as scale * * damages at fact, all, are, urged it is reasons that other these For p that: dissenting opinion, at up practicali- face to the think, I to time, is “It jury that if and hold is situation this ties the measure of thoroughly instructed will not be disturbed for fail- damages, the separate amount to the a dollar attribute to ure damages.” general and categories of To affirm the verdict of the in this case, necessary go however, it is not to to the extent of holding “thoroughly that whenever a has been in- plaintiff’s damages structed” on the measure of its verdict will never be disturbed either “failure to separate categories attribute a dollar amount to the general special damages” or for failure to award any general damages, awarding substantial while special damages, as in this case. This is because in pleaded this ease defendant both and offered evidence support any gen- his denial that suffered damages, eral with the result that there was an actual conflict of evidence on that issue, and the could reasonably have found from the record in this case (1) alleged either pain had lied about his suffering and that pain he either did not suffer warranting compensation (2) an plain- extent already paid tiff had been an excessive amount for al- leged wages, compensate lost so as to also him suf- ficiently any suffering. such suggested although
It has also been a ver- dict which fails to award substantial damages, awarding special damages, while would be improper in a case in which serious were either clearly proved, admitted or such a verdict would *7 improper in a only be case in which defendant not plaintiff injuries, denied that suffered substantial evidence but also offered from which the could reasonably finding. have made such a Thus, such Akers, Whitney held in Supp it was case, 247 F (WD 1965), at 765: Okla being “As to the inconsistent in award- expenses
ing for only medical nothing and injuries personal and therefore is unable to plaintiff cites the Hallford stand, v. Schumacher, 323 P.2d which cites 20 Okl., A.L.R. 2d and the recent case Burkett Moran, Oklahoma Supreme Court, 410 P.2d dated October In 1965. the above cases and in all cases mentioned general damages in the A.L.R. citation the were ‘clearly proved’, undisputed’, either ‘clear and ‘proved by all the dence’, testimony’, ‘contrary uncontradieted by the evidence’, ‘shown uncontradicted evi conclusively ‘damages established’, or ‘dam age undisputed testimony which the showed she had sustained.’
“This the As is not situation here. stated above, receiving personal injuries the claim of pain suffering were and strongly and from the accident lay testimony by and medical controverted injuries by the defendant. and introduced Such clearly proved undisputed, not or or were conclusively or established. uncontradicted Under herein the was en- state the evidence the against liability the accident the to find titled find but to also from the did, which defendant, evidence just the did receive a that any pain injury personal in the same. or the accident finding liability suffering But, from against obtained the defendant following accident, attention medical finding justified its verdict that the be would expense pay for such medical as should defendant though directly jury actually even from the accident resulted evidence that no from the believed * * * possible It is, course, received. could occur and no one accident automobile an Damages repairs injured for car can be therein. be though driver or owner sus- even recovered suffering personal tained reasonable conclude It is also accident. in the that to a accident went doctor for an in such if one injury was if an received to see examination an recovery such ex- had for medical could be resulting directly from accident and pense as * * necessary. being reasonable
541 Giddings v. was held same effect, To the (1961), Wyman, App NE2d 643 641, Ill 2d 177 220, 32 involving amount of for the also alleged pain nothing suf but medical bills, fering : plaintiffs’ may well have believed “This injuries point to the most minimal, here was plaintiffs
being incapable and that evaluation, they only fairly compensated received if would be jury’s mislay specials. in- must not their We credibility right pass upon the evi- to herent witnesses.” dence and the Diego & Electric also Miller v. San Gas
See (1963); Rptr App 129 126, 2d 28 Cal 212 Cal Co., Rptr Lowry, App 4 3d 84 Cal v. Cal Randles Fleming (1970); 41 Wash 2d 249 Dewitt, v. City (1952); Miami v. So 2d Smith, P2d 776 (Anno). (Fla 1964). ALR2d 276 But see 20 748, 750 in which the is not a case has This clearly leg has suffered in an accident or some lost injury. in such a Where, case, whether other serious relating liability problems to or for other because of special damages, jury would allow but reasons, agree damages, deny we still that such a ver- improper inconsistent an verdict. would be dict applied the rule as stated eases, such this As supra, Flansberg is a Paulson, sound and court salutary rule. requires a case which us this to de- is
Neither adopt Whitney the rule of or not whether cide in this supra. is because case This Akers, suffered either found no sub- have could although he suffered some stantial properly compensated more than injuries, he such, general damage by payment prior to trial of which, wages $3,050 for lost he did not in fact sustain, that amount. ‹ at least *9 determining is
It
well established that
in
the
validity
general
every
of a
verdict
reasonable intend
validity
ment is to be drawn in favor of its
and that
general
pro
a
verdict must be considered
to be
nouncement
all
issues. Forest Products
v. Dant
Co.
(1926);
& Russell,
637,
117 Or
244 P
531
Clark
(1958).
212
Strain,
357, 364,
Or
It is that there justify that the The could have found the verdict. injury. permanent It could have suffered no suffering either absent or found that the personal minimal. It could have found because abnormally apprehensive idiosyncrasies, plaintiff was seeking justified in med- and was therefore Employers ical attention and in his failure to work. they idiosyncrasies accept workmen as emotional are, included. part majority opin-
I of the do subscribe to permits payment ion which to use as money paid wages for loss of expenses. medical I am doubtful that the has such authority. *10 concurring. C.
O’CONNELL, J., my I concur in the result for the reasons stated in Flansberg dissent 239 Paulson, Or 610, 618, 399 (1965). P2d 356 dissenting. J.,
McALLISTER, The result of the decision this case I is, think, a new rule to this effect: When an is admitted Flansberg the rule of obvious, v. Paulson, 239 Or (1965) applies; P2d 610, but if the defendant injured, denies and the evidence presents jury question on that issue, will liberty compromise be at in violation of the court’s by bringing in a instructions verdict of nominal or no general damages together part with all or of the damages. prob- This new rule will further confuse already which is almost insoluble. lem We should ad- Flansberg supra, Paulson, here to the rule in earlier cases there cited.
I dissent.