Clifford v. Ruocco

246 P.2d 651, 39 Cal. 2d 327, 1952 Cal. LEXIS 263

Opinions

GIBSON, C. J.

Plaintiff was given judgment upon a jury verdict in an action for personal injuries arising out of an automobile collision. She takes this appeal, contending that the award of damages is inadequate and that the judgment is therefore unsupported by the evidence.

Plaintiff rented living accommodations from defendant, and she testified that she did so with the understanding that he would provide her with transportation to and from her place of employment. While driving plaintiff to work one morning, defendant went through a stop light and collided with another car. As a result of the accident, plaintiff sustained injuries which required extensive medical treatment and hospital care. There is ample evidence that defendant’s negligence was the proximate cause of the collision, but he claims that he did not agree to drive plaintiff to work and that she accepted the ride without giving compensation. The jury made a special finding that plaintiff was a passenger in defendant’s car and not a guest,

* and it returned a verdict in plaintiff’s favor in the sum of $1,500. Plaintiff moved for a new trial on the ground that the amount of damages awarded was inadequate. The trial judge ruled that plaintiff’s motion would be denied if, within 10 days, defendant would file a consent to pay $2,000 in satisfaction of the judgment, but that the motion would be granted on all the issues if defendant failed to file a consent. Defendant filed a consent within the prescribed period, but plaintiff declined to take the increased amount in satisfaction of her claims. The court did not compel her to accept the additur, the motion for new trial was denied, and judgment was rendered on the verdict for $1,500. (Cf. Dorsey v. Barba, 38 Cal.2d 350, 355-356 [240 P.2d 604].)

The evidence establishes without contradiction that plaintiff suffered a scalp laceration and bruises to her side and leg, including a deep bruise of the thigh. A painful infection developed in her thigh, making it necessary for her doctor to incise the wound and drain the accumulated matter. Afterwards, adhesions formed between the skin tissue and the underlying muscles, causing plaintiff considerable discomfort and hindering her in the full use of her leg. An operation performed to remove the adhesions proved unsuccessful, and the area again became infected. She continued to suffer from pain and swelling in her leg up to the time of trial, and her doctor testified that there was a reasonable probability that another operation would be required in order to remedy this condition. Plaintiff incurred expenses for ambulance, hospital and medical service in the amount of $1,159.42, and the cost of the future operation was estimated at $300. In addition, her loss of earnings amounted to approximately $630. These items alone, which amounted to over $2,000, exceeded the $1,500 awarded by the jury. In addition, plaintiff sought recovery for pain and discomfort resulting from her injuries. She was confined to a hospital for 24 days, she experienced a considerable amount of pain and inconvenience for a year before the ease came to trial, and there was evidence that she was likely to continue to suffer for some time in the future. Under these circumstances, it is clear that the award of damages was inadequate as a matter of law, and the judgment must be reversed.

We must next determine whether the case should be remanded on all the issues or on the issue of damages alone. It has been held that on an appeal from a judgment where the evidence as to liability is “overwhelming” a retrial may be limited to the issue of damages. (Taylor v. Pole, 16 Cal.2d 668, 675 [107 P.2d 614] ; cf. Crandall v. McGrath, 51 Cal.App.2d 438, 440-442 [124 P.2d 858].) Where, however, the evidence as to liability is in sharp and substantial conflict, and the damages awarded are so grossly inadequate as to indicate a compromise on the issues of liability and damages, the case should be remanded for a retrial of both issues. (Wilke v. Crofton, 34 Cal.2d 304, 310 [209 P.2d 790] ; Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518, 529-530 [67 P.2d 398] ; see, also, Wallace v. Miller, 26 Cal.App.2d 55, 58-59 [78 P.2d 745]; Donnatin v. Union Hardware & Metal Co., 38 Cal.App. 8, 10-11 [175 P. 26, 177 P. 845].) A failure to allow for undisputed special damages and loss of earnings is one circumstance which the courts have considered as being some indication of a compromise verdict. (See Bencich v. Market St. Ry. Co., 20 Cal.App.2d 518, 529-530 [67 P.2d 398]; see, also, Woods v. Eitze, 94 Cal.App.2d 910, 915 [212 P.2d 12] ; Hughes v. Schwartz, 51 Cal.App.2d 362, 368-370 [124 P.2d 886].)

In the present case the evidence establishes that defendant’s negligence was the proximate cause of plaintiff’s injuries. It is not contended, however, that the evidence would support a finding that defendant was intoxicated or was guilty of wilful misconduct, and there is a sharp and substantial conflict in the evidence on the question of whether plaintiff paid compensation for the ride. (See Veh. Code, § 403.) As we have seen, plaintiff testified that she rented living accommodations from defendant only after he assured her that he would furnish her with transportation to and from her place of employment, and there is other evidence which tends to corroborate her testimony. On the other hand, defendant denied having made such a promise and stated that he provided her with transportation merely as a gratuity.

In view of this conflict in the evidence, and considering that the damages awarded were less than plaintiff’s undisputed special damages and loss of earnings, it would appear that the verdict was the result of a compromise on the issues of liability and damages, and substantial justice requires that the case be retried in its entirety.

The judgment is reversed.

Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.

The designations “passenger” and “guest” have been adopted for the purpose of distinguishing a person who has given compensation within the meaning of section 403 of the Vehicle Code from one carried gratuitously. Where the driver receives a tangible benefit, monetary or otherwise, which is the motivating influence for furnishing the transportation, the rider is a passenger and the driver is liable for ordinary negligence. (Whitmore v. French, 37 Cal.2d 744, 746 [235 P.2d 3].)