Gallentine v. Richardson

• Decision Date: 26 January 1967
• Court: California Court of Appeals Court of Appeals
• Parties: Gale GALLENTINE, Plaintiff and Appellant, v. L. A. RICHARDSON, Defendant and Respondent. Civ. 11323.

Page 237

56 Cal.Rptr. 237

248 Cal.App.2d 152

Gale GALLENTINE, Plaintiff and Appellant, v. L. A. RICHARDSON, Defendant and Respondent.

Civ. 11323.

Court of Appeal, Third District, California.

Jan. 26, 1967.

P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, by David J. McKeown, San Francisco, for appellants.

Mitchell & Henderson, by Michael Hill, Eureka, for respondent.

REGAN, Associate Justice.

Plaintiff, while on a deer hunt with defendant near Elko, Nevada, received a gunshot wound and brought suit to recover for injury. A jury, by a 9--3 vote, awarded damages against defendant in the sum of $522.60, the exact amount of the special damages stipulated by the parties. Plaintiff appeals from that portion of the judgment assessing damages on the grounds of inadequacy thereof.

The award of damages by the jury's verdict was inadequate. Plaintiff suffered a demonstrated injury as a result of defendant's negligence in firing his rifle in the direction of plaintiff, the bullet striking him in the right flank in the area of the right kidney. Plaintiff's subsequent actions no doubt influenced the trial jury in the verdict it rendered. Plaintiff told the foreman of the ranch where the shooting took place that he suffered the injury in a fall; he was treated by the application of a sulfa bandage and shortly thereafter, although in pain and suffering from nausea, went on a short hunting trip; he left by auto with defendant for his home in Chico, California, taking a turn at the driving, and arrived home approximately ten hours later; he was then driven by his wife to a doctor who administered a tetanus shot and placed plaintiff in a hospital, where he underwent surgery. Plaintiff was a hospital patient for three days, then confined to his bed at home for approximately one week. The resulting scar from the wound is three-quarters of an inch in width and two and three-quarters inches in length. Plaintiff testified the wound took five to six months to heal and that the healed wound bothered him while lifting and bending and that he could not sleep on his right side. The only medical witness--plaintiff's surgeon--testified that the wound is completely healed over but is covered by a growth of scar tissue, which could be removed by surgery at a cost of approximately $250. There is no conflict of evidence regarding any of the foregoing.

Plaintiff now seeks a new trial confined to the issue of damages, and maintains that the award is so inadequate that the evidence does not justify it.

Generally speaking, a judgment will be reversed on the grounds that the damages are inadequate only where the award is found to be inadequate on a fair consideration of the evidence. (2 Witkin Summary of Cal.Law (7th ed. 1960) Torts, § 448, p. 1642.)

'If the liability is undisputed or clear, the reversal may be for a limited new trial on the issue of damages. But where the evidence of liability is so doubtful or sharply conflicting as to indicate a compromise verdict, the reversal will be general.' (id., p. 1643; and see Clifford v. Ruocco, 3 Cal.2d 327, 329, 246 P.2d 651.)

'Most of the decisions in which awards which seem inadequate are upheld involve insufficient or conflicting evidence on the elements of damage. Following the usual practice, the appellate court accepts the determination of the jury or trial judge.' (id., § 449, p. 1643, and cases collected therein.)

The parties agreed as true that the plaintiff's medical expenses totaled $297.60, and his loss of earnings was $225. We find no part of the verdict represents an award for the detriment suffered by plaintiff through pain, suffering, inconvenience, shock or mental suffering.

The record supports the implied finding of the jury that the defendant was negligent and that the medical expenses and loss of earnings were reasonable and necessary by reason of the negligence of the defendant. Defendant does not seriously dispute the extent of plaintiff's injuries, nor does defendant seriously or successfully contend that the expenses incurred were not proximately caused by the gunshot wound. Defendant attempted to but failed to prove plaintiff's actions aggravated his injuries and thereby increased his damages.

Section 3333 of the Civil Code provides:

'For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.' By this section of the Civil Code, plaintiff is entitled to damages which will compensate him for all the detriment proximately caused by the negligence of the defendant. (Eggink v. Robertson, 191 Cal.App.2d 496, 502, 13 Cal.Rptr. 76.) 'Damages must, in all cases be reasonable * * *.' (Civ.Code, § 3359.)

It is true as stated in Mudrick v. Market Street Ry. Co., 11 Cal.2d 724, 735, 81 P.2d 950, 118 A.L.R. 533, and quoted in Eggink v. Robertson, supra, 191 Cal.App.2d at page 502, 13 Cal.Rptr. 76, 80, that:

"While the law furnishes no accurate means of measuring damages in personal injury cases, the rule is well established respecting the power and duty of an appellate court in considering that subject and has been stated as follows: 'The amount of damages in such cases is committed, first, to the sound discretion of the jury, and next to the discretion of the judge of the trial court,...