Flansberg v. Paulson , 239 Or. 610 ( 1965 )

McAllister, C. J.

The plaintiff, Ellen Flansberg, brought this action to recover damages for personal injuries allegedly sustained when the automobile in which she was riding was struck from the rear by an automobile operated by the defendants. The court granted a mistrial because of what it deemed misconduct of the jury in arriving at its verdict, and defendants appeal. Defendants contend that the court should have entered judgment for plaintiff on the second of two verdicts returned by the jury.

In her amended complaint the plaintiff alleged that her injuries consisted “of shock to the nervous system, strain of the posterior cervical muscles and ligaments, strain of the anterior cervical muscles and strain of the rhomboid muscles.” She further alleged that she had incurred medical, hospital and drug expenses totaling $245.65, and had lost wages in the sum of $70., and prayed for special damages of $315.65 and general damages .of $10,000. The court instructed the jury that if it found that plaintiff was entitled to damages it should first determine the amount of general damages suffered by plaintiff. The court further instructed that if the jury found that plaintiff was entitled to general damages, it should then determine the amount of special damages, if any, sustained by her. The jury was given a form of verdict with blank spaces in which to insert the amount of any general and special damages awarded.

The jury first returned a verdict in favor of plaintiff and assessed special damages of $315.65, but assessed no general damages. The court rejected the verdict in accord with the established rule that in order to support an award of special damages there must be an award of general damages. Sedillo v. City of Portland, 234 Or 28, 380 P2d 115 (1963); Baden v. Sunset Fuel Co., 225 Or 116, 357 P2d 410 (1960), and cases there cited. The court again instructed the jury that if it found that plaintiff was entitled to damages, it should first determine the amount of general damages sustained by plaintiff, and then determine the amount of her special damages, if any. The jury retired and after further deliberation returned with a new verdict, again finding in plaintiff’s favor and assessing general damages in the sum of $315.65, but assessing no special damages. As stated above, $315.65 was the exact amount of special damages alleged by plaintiff, and the exact amount assessed as special damages in the first verdict. The court refused to accept the verdict and declared a mistrial.

The trial judge in refusing to accept the second verdict followed a course approved by this court in Hall v. Cornett, 193 Or 634, 240 P2d 231 (1952), Stein v. Handy, 212 Or 225, 319 P2d 935 (1957), and Baden v. Sunset Fuel Co., 225 Or 116, 357 P2d 410 (1960). In Hall v. Cornett the jury had returned a verdict in favor of the plaintiff for general damages of $1.00 and special damages of $1,006.40, or a total award of $1,007.40. The court refused to receive the verdict and instructed the jury that if it found for the plaintiff it must award an amount which would reasonably compensate her for the damages which she had sustained. After further deliberation the jury returned a verdict of $300 general damages and $707.40 special damages, being the same total amount as its first verdict. The trial court received the second verdict and entered judgment thereon, but thereafter on motion of the plaintiff set the judgment aside and granted a new trial. This court affirmed on the ground that the jury had “stubbornly adhered to what was apparently a compromise verdict between some who found liability and others who found none.” 193 Or at 646-7.

In Stem v. Handy, supra, the jury awarded plaintiff general damages of $1.00 and special damages of $399.55, the exact amount of the doctor, hospital and ambulance bills incurred by her. The court received the verdict and entered judgment upon it. Two days later, upon its own motion, the trial court set aside the judgment and granted plaintiff a new trial. We affirmed, pointing out that ORS 17.630 authorizes the trial judge to set aside a judgment and grant a new trial if the verdict resulted from misconduct of the jury-

In Baden v. Sunset Fuel Co., supra, the jury awarded plaintiff general damages of $100 and special damages of $455.50. The trial judge, believing that $100 was a nominal award of general damages, refused to accept the verdict and instructed the jury to either modify that verdict or to return a verdict for defendant. After further deliberation the jury awarded plaintiff general damages of $400 and special damages of $155.50. This verdict was received and a judgment entered thereon. Thereafter the trial court set aside the judgment and granted a new trial. We held that the original award of $100 general damages was more than nominal and that the first verdict should have been received. In considering whether the error of the court in resubmitting the case to the jury entitled plaintiff to a new trial we pointed out that the conduct of the jury in Baden was similar to the conduct of the jury condemned in Hall v. Cornett, supra. We said:

“* * * In each case the court instructed the jury that the award of general damages was insufficient to support the verdict for special damages. In each case the jury was directed to reconsider the case with instructions that if they found for plaintiff they must award more than nominal general damages. In each case the jury, instead of actually increasing its award of general damages, merely transferred to general damages a portion of the amount originally awarded as special damages. Although this was a literal compliance with the instructions of the court, it was condemned in the Hall case as a stubborn adherence to an invalid verdict. The court found in the conduct of the jury intrinsic evidence of misconduct. It follows that if, in the case at bar, the court had properly resubmitted the case to the jury our decision here would be controlled by Hall v. Cornett, supra.” 225 Or at 120.

In Baden we held that because the second verdict was in the same total amount as the first verdict, plaintiff had not been prejudiced by the resubmission of the case to the jury, and ordered a judgment entered on the first verdict.

In the cáse at bar, defendant contends that the second verdict was valid and that a judgment in favor of plaintiff for $315.65 should have been entered. D'efendant relies on Sedillo v. City of Portland, 234 Or 28, 380 P2d 115 (1963), Locatelli v. Ramsey, 223 Or 238, 354 P2d 317 (1960), and Mullins v. Rowe, 222 Or 519, 353 P2d 861 (1960), but those cases are not controlling here.

In Mullins v. Rowe, supra, the jury in the first instance, awarded plaintiff general damages of $332 and no special damages. The $332 was the exact amount of the doctor bills claimed by the plaintiff. The court received the verdict and entered judgment thereon, but thereafter granted a new trial. This court reversed and said that both the trial court and this court were forbidden to speculate concerning the mental process by which the jury fixed the general damages in the exact amount of the claimed special damages. This court made it clear, however, that it was not overruling either Hall v. Cornett, which was cited with approval, or Stein v. Handy, which was distinguished.

In Locatelli v. Ramsey, supra, the jury first awarded plaintiff $500, which was all designated as special damages, although the parties had stipulated that the plaintiff “had incurred medical expenses, whether necessary or not, in the sum of $229.50.” The trial court rejected the verdict because it was an award of special damages without a supporting award of general damages. The jury then split up the $500, and awarded $229.15 as special damages and $270.85 as general damages. On appeal this court affirmed, and pointed out the distinction between Locatelli and Hall v. Cornett as follows:

“The distinction between the jury’s action in the instant case and the jury’s action in the Hall v. Cornett case is this: In Hall v. Cornett the final verdict which the jury rendered after resubmission equaled the proven medical expenses plus one dollar. In the instant case the jury decided that the plaintiff’s damages, all together, including the $229.15 medical expenses, amounted to $500. When the court instructed the jury that special damages could not be awarded without general damages, the jury after further deliberation allowed the doctor bills as special damages and the difference between the doctor bills and $500 as general damages. As pointed out in Mullins v. Rowe, supra, it is within the power of an Oregon jury to be as generous or as penurious as it sees fit, so long as it remains within the pleadings and proof.” 223 Or at 241-2.

In Sedillo v. City of Portland, supra, the jury first awarded the plaintiff $537.85 in a verdict which did not segregate general and special damages. The amount awarded was the amount of ¡special damages alleged in the complaint. The trial court rejected the verdict and sent the jury .out again. The jury returned the same verdict form with the $537.85 crossed out and $500 inserted, under which was written the word “General.” The verdict as revised was received and judgment entered thereon. This court affirmed, but in a dictum said that the first verdict was a valid verdict under the rule announced in Mullins v. Rowe, and should have been received.

It appears that in Mullins v. Rowe, supra, and in the dictum in Sedillo v. City of Portland, this court has held in effect that if a jury in the first instance awards the plaintiff more than nominal damages, either designating the award as general damages or without designating the award as either general .or special damages, the verdict should be received and a judgment entered thereon, even though the amount awarded is the same as the amount of special damages claimed or proved by plaintiff.

On the other hand, there has been no deviation from the rule that if a jury improperly brings in a verdict for special damages without an award for general damages, and then stubbornly attempts to adhere to its invalid verdict in disregard of the instructions from the court, the trial judge may, in his discretion, declare a mistrial.

In the case at bar, the court did not receive the second verdict and enter judgment thereon, but immediately rejected the verdict and declared a mistrial. In Baden v. Sunset Fuel Co., supra, we condemned as “a stubborn adherence to an invalid verdict” the conduct of a jury in merely transferring “to general damages a portion of the amount originally awarded as special damages.” In this case, the jury, instead of transferring to general damages only a portion of the amount originally awarded to special damages, transferred the entire amount. The trial judge apparently concluded that the jury was trying to comply with the letter of his instructions, while stubbornly adhering to its decision to award plaintiff only her special damages and no general damages. We think the trial judge was not required to condone this defiant disregard of his instructions. He did not err in rejecting the verdict and granting a mistrial.

The line between the rule enunciated in Hall v. Cornett, supra, and the later rule of Mullins v. Rowe, supra, may be narrow, but it is discernible. The rationale for the Hall v. Cornett rule was best stated by Lusk, J., in his dissent in Fischer v. Howard, 201 Or 426, 271 P2d 1059 (1954), at 201 Or 476,^① a dissent which has acquired greater prestige since this court was finally persuaded to “withdraw” the part of Fischer v. Howard against which the dissent was directed. See Stein v. Handy, supra, 212 Or at 234.

The judgment of the trial court is affirmed.

① “To my mind the most serious implication of the court’s decision does not arise from the overruling of established precedents — which is sometimes desirable — but from the further inroads made by the court upon the already too greatly diminished powers of the trial judges of this state. See Van Lom v. Schneidermann, supra, 187 Or 113. When the Constitution unduly limits judicial power we must accept it. But we should be careful about using our own prerogative in such a way as to impose unwarranted restraints on the authority of the courts where the cases are actually tried. Whatever room for differences of opinion there may be about the proper construction of the verdict on the first cause of action in this case, there can be none — and none is suggested — about the invalidity of the verdict on the second cause of action — that it is inconsistent, an improper compromise verdict, contrary to the instructions of the court, and such a verdict as should not have been received. Yet this court now says that, simply because counsel did not speak when he might have spoken, the judge who presided over the trial was without the power to set aside a judgment based upon such an illegal verdict. That, as I view it, is a mistaken and unfortunate exercise of power on our part.”

① See cases cited in Anno., 20 ALR2d 276 (1951).