*1 July A. No. 22178. In Bank. [L. 1952.] RUOCCO, MARY R. T. CLIFFORD, Appellant, R. Respondent. *2 Hervey Henry Appellant. F. Walker for

Edgar B. and Respondent. and Melnnis for & Hamilton John W. Melnnis upon jury given judgment a was GIBSON, C. J.Plaintiff arising injuries personal for out an action verdict in contending appeal, that takes this automobile collision. She inadequate and that the the award unsupported the evidence. is therefore and living defendant, accommodations from Plaintiff rented understanding he that she she did so with testified that place from her transportation to and provide would her plaintiff work one morn driving While employment. stop light and ing, through a collided defendant went plaintiff sustained accident, another a result of the car. As and hos injuries medical treatment required which extensive negli pital ample that defendant’s care. There is gence proximate collision, but he claims was cause agree plaintiff work that she that did not to drive and giving compensation. The accepted ride without special finding passenger a de made a a a verdict in guest,* fendant’s car and not and returned $1,500. favor in the sum Plaintiff moved for ground a new trial that the amount of inadequate. ruled days, a if, within 10 defendant would file pay $2,000 judgment, but consent to satisfaction of the motion would on all de filed failed to file a Defendant a consent fendant consent. prescribed period, within the to take declined the increased amount in satisfaction of her claims. The court compel accept new did not her to the motion for additur, “guest” adopted “passenger” designations and have been for *The given compensation distinguishing person a who has purpose of meaning carried 403 of Vehicle Code one within monetary tangible benefit, gratuitously. driver receives Where furnishing motivating otherwise, influence for the trans is the ordinary passenger portation, and the is liable driver the rider is 3].) French, (Whitmore negligence. on the ver- denied, and was rendered (Cf. Dorsey Barba, $1,500. 38 Cal.2d 355-356 dict without contradiction establishes The evidence her bruises to side scalp laceration and suffered a thigh. painful A including deep leg, and bruise making necessary for developed thigh, infection in her her wound and drain the accumulated doctor to incise the Afterwards, formed between skin matter. adhesions causing plaintiff underlying tissue consid muscles, hindering erable in the full use of her discomfort and her leg. operation proved An performed to remove the adhesions unsuccessful, again area became infected. She con swelling leg tinued pain up to suffer from in her to the time of and her doctor testified that there was a reason probability able operation required that another would be remedy order to this condition. Plaintiff incurred ex penses for ambulance, hospital medical service of $1,159.42, amount operation the cost the future In addition, earnings estimated $300. her loss of approximately amounted to alone, $630. These items *3 amounted over $2,000, to $1,500 exceeded the jury. In addition, plaintiff sought recovery for pain and resulting discomfort injuries. from her She was con fined a hospital days, experienced 24 she a considerable amount of pain and year inconvenience for a before the ease came to and likely there was evidence that she was to continue to suffer for some time the future. Under these circumstances, it is clear that the award of damages inadequate as a matter of law, judgment and the must be reversed.

We next must determine whether the case re should be on all the or manded on the of damages issue alone. held that an appeal It has been from a where liability as to “overwhelming” the evidence a retrial damages. (Taylor be limited v. Pole, 16 Cal.2d 668, ; 675 P.2d Crandall v. 51 McGrath, [107 Cal. cf. App.2d 438, 858].) 440-442 P.2d Where, [124 how ever, liability evidence as sharp is in and substantial conflict, grossly awarded are so compromise as to indicate on the liability issues of and damages, should be remanded for a retrial both (Wilke Crofton, issues. v. 34 310 ; Ry. Co., Bencich v. Market St. Cal.App.2d 20 518, 529-530 Cal.App.2d see, also, Wallace ; P.2d 398] 745]; Donnatin v. Union Hardware & 55, 58-59 [78 845].) 177 P. Co., Cal.App. 8, 10-11 Metal undisputed special damages and A to allow failure have earnings is one circumstance which the courts loss compromise being of a verdict. as indication considered some Cal.App.2d 518, 529- (See Bencich v. Market St. Cal.App.2d 398]; see, also, Eitze, Woods v. ; Hughes Schwartz, 910, 915 P.2d 12] 362, 368-370 [124 de present case evidence establishes that

In the proximate cause of fendant’s contended, however, the evidence injuries. finding support a that defendant was intoxicated would sharp guilty misconduct, and is a and wilful on the of whether conflict in the evidence substantial (See Code, Veh. paid compensation for the ride. 403.) seen, plaintiff she rented As we testified that § living from after accommodations defendant he assured transportation to he furnish her with and her that place employment, her and there is other testimony. hand, corroborate her On which tends having promise made such a and stated defendant merely transportation gratuity. her provided considering In view conflict in the awarded were less than undis- puted special damages earnings, ap- and loss of it would compromise pear that the result justice damages, the issues substantial requires entirety. the case retried its is reversed. J., J., J., Traynor, Schauer, Edmonds, J.,

Shenk, concurred. Spence, J., judgment of reversal CARTER, J. concur in I reasoning majority on which agree

cannot *4 action should be retried the its conclusion it bases analyzed has not majority is obvious issues. It the all given problem. consideration to this decisions apparent that the function study of cases From a determining or not new whether in appellate court of some or all granted, and whether have been should trial happened what has retried, varies with are to follow be true must court. This in the trial relating to the function court traditional ruling in on a motion for a new trial.

It must in the case at bar the trial be remembered that trial, having for a new after plaintiff’s court denied motion increase stated that unless the defendant consented to an grant plaintiff, in $500 the amount awarded a new trial on all the The defendant consented to issues. increase, accept plaintiff same, but refused to thereupon and the trial court for us, The therefore, presents ques new trial. record before presented tion similar to Bencich v. Market St. Co., 20 Cal.App.2d majority cited in the opinion. There a new court had denied trial after a had returned a in his favor verdict $5,000 on a trial, $20,000 second when a verdict in favor had been a first awarded at and a new trial granted. It obvious that court there was confronted with the as to whether or not the trial denying had committed error motion for a new trial which appear does not to have been limited to ap asked the pellate court to reverse the with directions that the case be retried on opinion the issue of in the Bencich prepared Bray case was by Mr. Justice who tern, pro sitting then Appeal. in the District Court of very a able scholarly opinion correctly states the rule applicable to questions presented in the applicable which are difficulty to the case bar. The reasoning with the majority bar is that it confuses the legal problems a case such as involved in this with applicable the rule to eases where trial court has a motion for a new trial on issue of dam ages only, as the opinion of Hughes cites the eases Schwartz, 51 Cal.App.2d 362 and Woods Eitze, being governed by the same rule as the attempt Bencich case. I will demonstrate the fallacy holding. of such only statutory authority

It must conceded that grant a new inadequacy a trial court trial because of the ground awarded is that such comes within purview insufficiency support the evidence to verdict set forth subdivision 6 of (see of the Code of Civil Procedure 104). Cal.Jur. traditional has been the rule that if there ais conflict *5 332 overwhelmingly though evidence is evidence, even granted, motion is against whom the party of the favor trial on insuffi granting a new trial court

the order of the (Brig appeal be disturbed ciency of evidence will not Co., 29 791 P.2d Trans. noli v. Seaboard [178 Greyhound Lines, 28 Cal.2d ; Ballard v. 445] Pacific Metropolitan Ins. 465]; v. 358 Brooks P.2d [170 Life being the rule 689]). where 305 P.2d Such 27 Cal.2d [163 insufficiency of the on the a new trial being applicable a limited new same rule is likewise on certain issues au or a new trial Procedure, Civil by of the Code of thorized 657 type of cases that follow in latter supports conclusion trial court as evidence which its conclusion such inadequacy awarded, be disturbed an court. should likewise not case adopted rule which has been and fol This is the uniform very of state appellate courts few lowed following (Con appear from the citations. exceptions, as will People ; ex roy Perez, Cal.App.2d 64 217 P.2d v. [148 680] Cal.App.2d 100 McCullough, 101 D. P. Works v. rel. [223 ; Cal.App.2d ; 105 758 P.2d Reachi, Ona v. P.2d [233 949] 37] Cal.App.2d 103 County Angeles Bitter, v. 385 Los [229 Perry Fowler, Cal.App.2d v. 102 808 P.2d 466]; P.2d [229 Cal.App.2d ; 521 P.2d ; Dexter, Parks 100 v. [224 121] 46] 1059]; P. J. Levin Everts, 163 449 Co. Estate Cal. [125 404]; Rigall Sherwood, Cal.App. 55 308 P. Sherwood & v. [203 97]; Spencer Nelson, v. Lewis, 1 P.2d Cal.App.2d v. 737 [37 League ; Wold v. P.2d 84 40] [190 v. Di ; Resta, P. Amore Cross, Cal.App. 107 344 460] [290 986]; Johnson, Johnstone 38 P.2d v. Cal.App. 125 410 [13 374]; Hildebrand, v. 51 Adams Cal.App.2d P.2d 700 [102 McGrath, 51 80]; Crandall v. Cal. P.2d Cal.App.2d 117 [124 ; Francisco, v. 42 Bauman San P.2d App.2d 438 858] [124 Tumelty Stages, v. Peerless 989]; P.2d Cal.App.2d 144 [108 v. 430]; Tel. Tel. Co. Well & Cal.App. 96 530 [274 Pacific Tyrone ; v. P.2d Cox Power 151 Cal.App.2d 98 man, [219 829]; 383 P.2d McNear Inc., Cal.App.2d 49 Enterprises, ; 11 Lines, Cal.App.2d Greyhound 63 v. Pacific Cal.App.2d 858]; Hens Maulding, Keogh Cal.App.2d Fox, lee v. rule announced in only departure from the settled grant- a trial court eases, order of above cited damages only on the issue for a new trial

ing a motion gross, absence of a appeal will not be disturbed discretion, abuse and unmistakable manifest where Wallace obviously misapplied the Appeal Court District com- case, supra, held trial court the Bencich granting new trial on mitted an abuse of discretion in plaintiff the where the *6 undisputed hospital of his bill when the amount of $120.25 damage evidence showed to his automobile from accident amounted $203.64 to also suffered from injury. effects of the

I think it is in Appeal that the District Court of obvious ap- Wallace ease applied became confused and the rule plicable ato ease such as the Bencich case where the trial court had denied a new trial and the appellate court had before the same which pre- is sented in bar, namely, upon whether a reversal of the judgment upon it should direct a new trial the issue Of course the court in Wal- lace case did not have the of the benefit numerous authorities cited above, all of which hold ruling of a trial court granting a new of damages only issue will not be disturbed unless there gross, is a manifest and unmis- takable abuse of discretion. also cite the Crofton, case Wilke v. supporting

Cal.2d 304 as holding its in 790] While it is true Keogh case at bar. that Wilke case cites Maulding, 858], Wallace v. Cal.App.2d 55 Bencich v. Market Co., St. and Donnatin v. Union Hardware Metal Cal.App. 8 proposition 177 P. for the that “where conflicting sharply damages as to grossly so as compromise are to indicate a liability and damages, issues of entire case should ’' re-examined, it is obvious that these cases ap have no a case plication judge to tried before a jury without a was the Obviously situation case. Wilke the reason for the stated in the Wallace case applicable could not be jury. to a case tried before without a In Wal said, page lace case 58: “The verdict of the jury found, effect, which in guilty that defendants were negligence and that was free from contributory neg ligence yet damages allowed which grossly were made- convincing Donnatin

quate, proof as said furnishes agreement, to reach case, supra, page 11, ‘that in order concessions of the result of unwarranted was of the opposing convictions made each of two factions jury, one of conscientiously which believed that defendant equally prevail the action the other conscien- in the opinion tious should recover injuries apparent, commensurate sustained. think, jurors entertaining the opinion that those that de- guilty negligence charged’ (or, fendant of the in our issue guilty the additional of con- tributory negligence), agreed to ‘nevertheless surrender their jurors views consenting consideration of to the trifling injustice award made. ... grave It would work a upon force it defendant a new trial issue as liability, upon with the as to issue no verdict other than name had been forever rendered, against inquiry.’ closed Just much was in- how fluenced upon imputed negligence the instructions impossible say. the jury well be that did not be- any lieve there contributory upon part of the plaintiff, jurors might believed, but some also have apparatus the driver under *7 negligence a matter of law should negligent and his might they and in this mistaken imputed plaintiff, belief be the dam- their convictions as to amount of surrendered they possible, award. On the other it ages hand, should is jurors evidence, that some of the the believed that under negligent proxi- and that contributed driver the by, knowledge to the accident such mately constituting of the conditions driver and part the persuade him failing to warn driver or negligence, such con- jurors such surrendered their up, and stop or slow exchange for a low dam- verdict of in this behalf victions clearly uncertainty fact that ages. In view of evidence on the of dam- something than arriv- jury, or some of them in actuated must have ages justice requires verdict, substantial ing such a low supra, p. ‘. what is 11), . . Donnatin (as said if he is receive, should just compensation a by trying all, be determined can best to recover entitled judge instead of one one before the whole case judges different different up” between “splitting ” logically Certainly it cannot be said that a trial juries.’ inadequate damages he entertained judge because awarded conflicting liability. therefore on the issue of views gives support no reason- apparent that the Wilke ease ing case at bar. or conclusion of the in the us from the evi- appears record before both dence and statements dam- ages greater suffered were far the amount than jury, awarded the dam- therefore ages are In as matter of law. view mandatory. record, of such state reversal Since the trial court denied motion for a new trial and liability, was a conflict in the evidence issue of say it is this court to that the case be retried damages on the issue of as it is in those cases where, as a law, may matter of said that the defendant’s has established, been reverse with directions retry the issue of Hence, I concur in the reversal large which sets the ease at trial court. The would be situation different had the trial new trial on only. In such provisions situation the of section Code Civil Procedure and the rule announced in the cases which I have cited respect hereinabove to the discretion of court, applicable, and an granting order such limited new trial should be affirmed if there any substantial evidence to support the conclusion that the de- fendant was liable awarded were inade- quate.