Wheeler v. Huston

Decision Date22 January 1980
Docket NumberNo. 21902,21902
Citation605 P.2d 1339,288 Or. 467
PartiesCliff WHEELER, Respondent, v. Gerald A. HUSTON and Carl D. Huston, Petitioners. ; CA 10795; SC 26124.
CourtOregon Supreme Court

Edward H. Warren, Portland, argued the cause for petitioners. With him on the briefs were Lauren M. Underwood, and Acker, Underwood, Beers, Smith & Warren, Portland.

[288 Or. 468-A] Robert L. Nash, Bend, argued the cause for respondent. With him on the brief was Panner, Johnson, Marceau, Karnopp & Kennedy, Bend.

PETERSON, Justice.

This is a personal injury negligence case in which the jury returned a verdict for the exact amount of special damages claimed. Following reinstruction by the trial court, the jury returned a verdict for a larger amount. Judgment was entered thereon. The defendants claim that the trial court erred in failing to receive the first verdict. We agree and reverse.


The plaintiff, a milkman, fell while making a delivery to the defendants, and sued for damages. The defendants denied responsibility for the fall, denied that the plaintiff sustained injury, and claimed that the plaintiff was also at fault.

The plaintiff prayed for general damages and for special damages of $9,120.25 (lost wages of $6,000 and medical expenses of $3,120.25). The defendants also disputed the correctness of the amount of lost wages claimed to have been sustained.

The jury returned a special verdict in the form customarily used in comparative fault cases. ORS 18.480. They found that the plaintiff was 45 percent at fault, that the defendants were 55 percent at fault, and that the plaintiff's "total money damages" were $9,120.25, the exact amount of the claimed special damages. The verdict form made no apportionment between special damages and general damages. 1

The trial court asked the foreman of the jury if the verdict of $9,120.25 was intended to award only the special damages pertaining to medical care and lost wages and nothing for general damages, or if the jury intended to include some amount for general damages in the award. The foreman of the jury responded that the jury intended to award medical expenses and lost wages. Over defendants' objections that the first verdict should be received, the court then reinstructed the jury that under the law of the state of Oregon the jury could not award special damages without an award of general damages, and sent out the jury for further deliberations. 2

After further deliberations, the jury returned with a verdict which again found defendants 55 percent at fault, plaintiff 45 percent at fault, and assessed plaintiff's "total money damages" in the sum of $20,000. Judgment was entered on this verdict.

The defendants appealed to the Court of Appeals, which affirmed without opinion, 3 citing Mullins v. Rowe, 222 Or. 519, 353 P.2d 861 (1960), and State ex rel. Nilsen v. The Shalimar, Inc., 28 Or.App. 61, 558 P.2d 1251 (1977).

In Eisele v. Rood, 275 Or. 461, 551 P.2d 441 (1976), we held that a verdict for only special damages was valid if the "plaintiff's evidence of injury is merely subjective in nature" or if there is evidence that the plaintiff's injury "was not caused by the accident." 275 Or. at 467, 551 P.2d at 444. We granted review to reconsider the Eisele rule.


The issue presented in this case has been before this court at least 20 times in the past 27 years, 4 and continues to create confusion within the appellate courts, the trial courts, and among trial lawyers. A brief overview of the cases is in order.

Hall v. Cornett, 193 Or. 634, 240 P.2d 231 (1952), was a personal injury action resulting from an automobile collision. The total special damages claimed were $1,006.40. The jury returned a verdict in favor of the plaintiff for "One Dollar as General Damages, and the further sum of $1,006.40 Special Damages." The trial 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 sustained. After further deliberation the jury returned a verdict for "$300 as general damages and the further sum of $707.40 special damages." The trial court received the second verdict and entered judgment thereon, but thereafter set the judgment aside and granted a new trial. We affirmed, stating that the jury

" * * * stubbornly adhered to what was apparently a compromise verdict between some who found liability and others who found none. Our statute provides that a judgment may be set aside and a new trial granted on the motion of the party aggrieved in the event of irregularity in the proceedings of the jury by which such party was prevented from having a fair trial, or for misconduct of the jury. * * * " 193 Or. at 646-647, 240 P.2d at 236.

Mullins v. Rowe, 222 Or. 519, 353 P.2d 861 is a 1960 case involving a claim for general and special damages on a cause of action arising out of an automobile accident. There was evidence that the plaintiff had incurred $332 for medical services, but there was evidence that all the bills were not chargeable to the accident. The verdict was for the plaintiff in the sum of $332 general damages and "special damages in the sum of $ None." The trial court received the verdict and entered judgment thereon, but thereafter granted a new trial. This court reversed.

"It may well be true, as contended in the plaintiff's brief and argument, that the jury simply compromised the question of liability and entered a verdict for the doctor bills, but to speculate concerning the mental processes of juries is forbidden the courts under Oregon Constitution, Art. VII, § 3. * * * " 222 Or. at 522, 353 P.2d at 863.

Justice Goodwin also observed:

"The fact that the amount of the general damages found by the jury and the amount of the doctor bills claimed by the plaintiff are the same lends some degree of cogency to the plaintiff's speculation concerning what may have been in the mind of the jury, but such speculation does not permit the court to set the verdict aside when there is no error of law in the record." 222 Or. at 523-524, 353 P.2d at 863.

Also in 1960, Baden v. Sunset Fuel Co., 225 Or. 116, 357 P.2d 410 reached this court. Baden was an action at law for personal injuries allegedly sustained as a result of the defendant's negligence. The plaintiff testified that she incurred a doctor's bill of $155.50 and a wage loss of $300, making total special damages of $455.50. The jury returned a verdict for $100 general damages and $455.50 special damages. The trial court refused to accept the verdict and "advised the jury that the general damages awarded were nominal and inadequate and instructed the jury to return and deliberate again and either modify that verdict or return a verdict for the defendant." 225 Or. at 118, 357 P.2d at 411. The jury retired and thereafter returned a verdict awarding plaintiff $400 general damages and $155.50 special damages. This verdict was received and a judgment entered thereon. Thereafter, upon plaintiff's motion, the trial court set aside the judgment and granted a new trial.

On appeal, we reversed, holding that the original award of $100 general damages was more than nominal and that the first verdict should have been received. We further held that because the second verdict was in the same total amount as the first verdict, the plaintiff had not been prejudiced by the resubmission of the case to the jury, and ordered that judgment be entered on the first verdict.

Sedillo v. City of Portland, 234 Or. 28, 380 P.2d 115 (1963), involved a rear end collision in which the plaintiff sought special damages of $537.85 plus general damages. The verdict form did not segregate special damages from general damages, and the jury returned a plaintiff's verdict in which there was inserted in the blank for the amount of damages "$537.35." The plaintiff objected to the verdict and the jury was again sent out to deliberate. Thereafter, the jury returned with the same verdict form with the "$537.85" crossed out and "$500" inserted. Under this amount was inserted the word "general." This verdict was received and judgment was entered thereon.

On plaintiff's appeal, this court affirmed. We held that the first verdict was proper, but that because the plaintiff was responsible for the trial court rejecting the first verdict, "he should not profit by its reinstatement." 234 Or. at 34, 380 P.2d at 118. In reaching this conclusion, we noted that " * * * there was an important question of whether or not much of plaintiff's medical expense was occasioned by the collision * * *." 234 Or. at 33, 380 P.2d at 117.

Flansberg v. Paulson, 239 Or. 610, 399 P.2d 356 (1965), also involved a claim for personal injuries allegedly sustained in a rear-end automobile collision. The plaintiff sought general damages of $10,000 and special damages of $315.65. The jury first returned a verdict for the plaintiff and assessed no general damages and special damages of $315.65. Following reinstruction, the jury retired again and returned a verdict assessing general damages of $315.65, with no special damages. The trial court refused to accept the verdict and declared a mistrial. The defendant appealed.

We affirmed in an opinion written by Chief Justice McAllister, who stated:

"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. * * * " 239 Or. at 617, 399 P.2d at 359.

Justice O'Connell dissented, saying:

" * * * The fact that juries commonly make such an award despite the existence of obvious elements of 'general' damages suggests, perhaps, that the rule forbidding such a practice (when it can be detected by the form of the verdict) ignores the realities of everyday life and should be re-examined.

"Nothing in the nature of things requires jurors or...

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  • Kennedy v. Wheeler
    • United States
    • Oregon Supreme Court
    • December 11, 2014
    ...in very limited circumstances which are not present in this case.” In support of that contention, defendant cites Wheeler v. Huston, 288 Or. 467, 605 P.2d 1339 (1980).Defendant is incorrect in her understanding of Wheeler. Wheeler does not make an award of economic damages dependent on an a......
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    ... ... [and] [t]he jury could reasonably have concluded that plaintiff experienced no pain and suffering, or if he did, that it was de minimis."); Wheeler v ... Huston , 605 P.2d 1339, 1345 (Ore. 1980) ("[T]he jury may conclude that the plaintiff suffered no general damages ... Such verdicts are ... ...
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