Saum v. Bonar

Decision Date28 April 1971
PartiesRobert SAUM, Respondent, v. Charles BONAR, Appellant.
CourtOregon Supreme Court

Carrell F. Bradley, Hillsboro, argued the cause for appellant. With him on the brief were Schwenn, Bradley & Batchelor, Hillsboro.

George G. Van Natta, St. Helens, argued the cause for respondent. On the brief were William F. Schulte, Portland, and Van Natta & Petersen, St. Helens.

TONGUE, Justice.

This is an action for personal injuries resulting from an automobile accident in which plaintiff's car was 'rear-ended' by defendant's car. The trial court set aside a jury verdict for $1 in general damages and $350 in special damages and granted plaintiff's motion for a new trial.

Defendant appeals, contending that under the evidence this was a proper verdict and that this court should re-examine its prior decisions on this subject and should adopt the views as stated by Justice O'Connell, dissenting, in Flansberg v. Paulson, 239 Or. 610, 618, 399 P.2d 356 (1965), in which a somewhat similar verdict was held to be improper by a majority of this court.

The question presented in this case is whether, under the particular facts of this case, the jury should have been permitted to award the plaintiff special damages for his medical expenses and loss of earnings, with no award of general damages for pain and suffering.

Since the decision in this case has meaning only with reference to the facts of this particular case, we shall review the pleadings and the proof. As previously stated, this was a 'rear-end' automobile accident in which the liability of defendant was clear and the only issue related to the extent of plaintiff's injuries. The accident occurred near St. Helens, Oregon, on January 3, 1969.

The injuries alleged in plaintiff's complaint were as follows:

'In and by said collision plaintiff was injured in that he sustained a wrenching and straining of the muscles, tendons, nerves and other soft tissues of the entire back from the base of his skull to his hips and a fractured tooth. Theretofore plaintiff was afflicted with a condition known as osteo-arthritis, which condition, however, was not active, disabling nor painful to plaintiff. In consequence of defendant's negligence, and the injury described above, said osteo-arthritis was caused to be flared up and aggravated, and to be made painful and disabling. Said injuries were, are and will remain painful and disabling on a permanent basis. Plaintiff has been generally damaged in the sum of FIFTY THOUSAND DOLLARS ($50,000.00) on said account.'

Plaintiff testified that he was knocked unconscious by the impact, although recovering almost immediately. He was then taken to a hospital where no bumps on his head were found, but where he complained of pain in the neck and numbness in his right arm. On trial he also testified that his lower back was injured in the accident and that one tooth was broken. He was found to have no broken bones, however, and after three days was released from the hospital.

A few weeks later he complained to his doctor of further pain in the neck area and returned to the hospital, where his neck was placed under traction. After a week or so he was released. He testified that his doctors prescribed both a neck brace and also a back brace. In April he was released by his doctor for work, but testified that he was unable to work because of continuing pain in his neck.

Plaintiff continued medical treatment until October 1969 and testified that he then was unable to find work. Prior to trial he was paid $3,050 by defendant for claimed lost wages. At the time of trial in February 1970 plaintiff still complained that his neck, arm, and low back still bothered him.

Plaintiff's doctors diagnosed his condition as a strain or sprain of the muscles in the upper spine. They found no muscle spasms, however, and minimal arthritic changes. They testified that their diagnosis was based largely on subjective symptoms. They also testified that plaintiff did not tell them of any previous injuries. It also appeared that the back brace was prescribed several months after the accident when plaintiff said that he had twisted his back in the bathtub.

Defendant's examining doctor also testified that plaintiff told him that he had no previous neck or back injuries. He also testified that on examining plaintiff several months after the accident he found no muscle spasms, muscle weaknesses or any other symptoms of any pain or suffering and that he found nothing wrong with plaintiff other than being overweight.

On cross-examination plaintiff admitted that in 1967 and again in 1968 he had made claims for previous back injuries. He also admitted that the job he had said he was turned down for because of the injury in question was a job for which he was previously turned down because of a previous injury. In addition, he admitted that he had occasionally gone fishing during the period when he had testified that he was unable to work. He also admitted that he had previously been convicted of larceny and burglary.

Under such a record it can be understood why a jury might, and perhaps with good reason, find that plaintiff had lied about his alleged injuries and that he either suffered no substantial injuries for which he was entitled to any substantial award or compensation for general damages for pain and suffering, or that the $3,050 already paid to him for alleged lost wages was excessive and was also sufficient to compensate for any pain and suffering. At the same time, it can be understood why a jury might still award him special damages representing unpaid doctor and medical bills.

In this case, after proper instructions on the subject of damages, to which no exceptions were apparently taken by the plaintiff, the jury returned a verdict of $1 in general damages and $4,443.33 in special damages and found that defendant had previously paid $4,093.33 to apply on special damages (including $3,050 for lost wages), leaving net special damages of $350.

Plaintiff objected to the verdict on the ground that no substantial general damages were allowed. The trial court then instructed the jury that before it could find special damages it must first find general damages and that a finding of $1 general damages would not support a finding for special damages. The jury was then instructed to 'redeliberate' and 'attempt to arrive at a verdict that would be acceptable to the court.' Both verdict forms were again delivered to the jury for that purpose.

The foreman of the jury then sent a note to the trial judge asking, 'Are we allowed to award to plaintiff no general damages?' The jury was then brought in again and told that 'It is not possible to have no general damages and to have special damages.' One juror then said, 'We are confused as to the amount that would be permissible to put as general damages' and was told that 'the court can't tell you what amount to put there.' The jury then retired again.

The foreman of the jury then sent a second note saying, 'Sir, our intent is to award all medical expenses. Could we award $2 general damages and still be within the law?' Plaintiff moved for a mistrial. That motion was denied and the verdict was received in the form as first returned.

Later, and fifteen minutes before the filing of a judgment on that verdict, plaintiff moved for a new trial for misconduct of the jury and irregularity in the proceedings. An order for a new trial was then entered, from which defendant appeals.

In Flansberg v. Paulson, 239 Or. 610, at p. 617, 399 P.2d 356, at p. 359 (1965), it was stated by a divided court:

'* * * 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.'

However, in Sedillo v. City of Portland, 234 Or. 28, 380 P.2d 115 (1963), the jury first returned a verdict for $537.85, the exact amount of the special damages. After further instructions it returned a verdict of $500 in general damages alone with the notation 'no specials.' That verdict was held good. For other cases in which somewhat similar verdicts were also sustained, see Locatelli v. Ramsey, 223 Or. 238, 354 P.2d 317 (1960), and Mullins v. Rowe, 222 Or. 519, 353 P.2d 861 (1960).

A dissenting opinion by O'Connell, J., in Flansberg v. Paulson, Supra, 239 Or. at p. 619, 399 P.2d at p. 360, was critical of the concept that special damages are a form of 'consequential damages' for which there is no 'source' unless there has first been a finding of general damages, pointing out that 'neither type of damages flows from the other; each measures a distinct type of invasion of the plaintiff's interest.' It was suggested, at p. 621, 399 P.2d at p. 361, among other things, that 'if the jury returns a verdict awarding special damages and no general damages, it is possible that the jury has decided that the plaintiff did not suffer pain to an extent warranting compensation.'

It was also suggested by O'Connell, J., in Flansberg, at p. 621, 399 P.2d at p. 361, that:

'The case of Van Lom v. Schneiderman, 187 Or. 89, 210 P.2d 461, 11 A.L.R.2d 1195 (1949) holds that (under Art. VII, § 3 (Amended) of the Oregon Constitition) we cannot set a verdict aside on the ground that we regard it as excessive. Are we not equally bound by a verdict which we regard as being at the other end of the spectrum * * *? We have done this through the legal legerdemain of classifying the amounts at the bottom of the damage scale as 'nominal' damages; we say that nominal damages are, in fact, no damages at all, * * *.'

For these and other reasons it is urged in that dissenting opinion, at p. 623, 399 P.2d at p. 362 that:

'It is time, I think, to face up...

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12 cases
  • Wheeler v. Huston
    • United States
    • Oregon Supreme Court
    • January 22, 1980
    ...attribute a dollar amount to the separate categories of general and special damages." 239 Or. at 623, 399 P.2d at 362. Saum v. Bonar, 258 Or. 532, 484 P.2d 294 (1971), was also a rear-end automobile accident case in which the plaintiff claimed special damages of $4,443.33. However, the defe......
  • Fatehi v. Johnson, 0210-10156.
    • United States
    • Oregon Court of Appeals
    • September 20, 2006
    ...sense of that word, to entitle the plaintiff to noneconomic damages.3 Other cases support that conclusion. In Saum v. Bonar, 258 Or. 532, 484 P.2d 294 (1971), the first case in which the Supreme Court allowed a verdict for economic damages only to withstand appellate scrutiny, the plaintiff......
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    • United States
    • Oregon Supreme Court
    • March 7, 1974
    ...a review of our recent decisions on this question, that the first verdict was a proper verdict within the rule stated in Saum v. Bonar, 258 Or. 532, 484 P.2d 294 (1971). In that case we reinstated a jury verdict of $1 in general damages and $4,443.33 in special damages (including $3,050 for......
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    • United States
    • Oregon Court of Appeals
    • August 28, 1996
    ...with prospective application: "One further aspect of this question requires discussion. Since the decisions in Saum [v. Bonar, 258 Or. 532, 484 P.2d 294 (1971) ] and Eisele [v. Rood, 275 Or. 461, 551 P.2d 441 (1976) ], it has been clear that the validity of a verdict in the amount of the cl......
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