Opinion
Rehearing Denied Dec. 12, 1966.
For Opinion on Hearing, see 59 Cal.Rptr. 276, 427 P.2d 988.
Randolph Karr, William E. Still, Norman T. Ollestad, Los Angeles, for appellant.
Boccardo, Blum, Lull, Niland, Teerlink & Bell, by Edward J. Niland, San Jose, for respondent.
ROTH, Presiding Justice.
Respondent, plaintiff below, was awarded $100,000 by a jury. He complains the verdict is grossly inadequate. After judgment on the verdict was entered respondent moved on all statutory grounds to vacate and set aside the judgment and verdict of the jury, and for a new trial on the issue of damages alone. The motion was granted on the issue of damages alone "* * * on the grounds * * * [of] * * * insufficiency of the evidence to justify the verdict and [that] it is against law." Appellant, defendant below, appeals from the order granting a new trial.
Liability is conceded.
The sole issue is: Did the court abuse its discretion in granting a new trial? We think not.
Respondent, a 19-year-old railroad worker, sued under the provisions of the Federal Employers' Liability Act and the Safety Appliance Act to recover damages for injuries sustained in an accident he suffered on the job as a consequence of a railroad car running over his legs and severely mangling them, which he alleged and proved was caused by a coupling malfunction. It was necessary to amputate the right leg below the knee. The left leg was so seriously damaged that it may be necessary also to amputate that leg. He was hospitalized for a period of 16 months during which time 18 operative procedures were performed on his legs. Appellant's medical expert acknowledged that even if it should be possible to cure respondent's left leg, respondent would have to submit to surgery 10 or 20 times in the future. In addition to the loss of part of his right leg, respondent has a permanent, chronic osteomyelitis above his left ankle which has not fully healed in spite of repeated surgical treatment. The possibility of amputation of the left leg is probable. At present there is a permanent limitation of motion in the left ankle. Respondent suffered and continues to suffer pains in his amputated right leg, in his back and neck. He will never be able to compete in the labor field. For six weeks prior to the accident, respondent had earned a total of $1,600. His life expectancy at the time of the accident was 50.5 years. The proof shows that a railroad worker may continue to work until he reaches the age of 70 years or more and may expect to receive additional income as his seniority increases. The special damages of respondent at the time of trial exceeded $50,000. Evidence was introduced to show that the total amount of respondent's projected Appellant does not dispute respondent's injuries. Its contention on the subject of damages narrows to a conflict in the evidence between the testimony of its Dr. Bechtol and respondent's experts on prognosis. Our analysis of the experts' evidence shows that even if any conflict were resolved in appellant's favor, there would be no substantial change in the present and future situation of respondent's physical, mental and emotional status.
An appellate court's right to reverse an order granting a new trial predicated upon the insufficiency of the evidence is well stated in appellant's brief. We adopt it. Appellant says:
"The authorities (so numerous that they will not be cited here) are to the effect that an appellate court will put forth all effort to affirm a trial court order granting a new trial on the ground of insufficiency of the evidence. After facing the indulgence that all presumptions are for the benefit of the trial court, an appellant has the obligation to show a clear abuse of discretion by the trial court before an appellate court will intervene and reverse an order granting a new trial on the ground of insufficiency of the evidence. Appellate courts have been loath to state that a trial court has actually abused its discretion in granting a new trial on the ground of insufficiency of the evidence. The order granting the new trial here stands at the pinnacle of presumptive support."
Appellant argues nevertheless that the rule it summarizes and concedes should not apply to this case. It says:
"The oft-stated reasons for the appellate court's refusal to review the evidence are that they have not seen and heard the witnesses as has the jury and the trial judge and cannot determine the credibility or the value of such evidence and such witnesses. This case is different in many respects from the usual cases concerned with excessive and inadequate damages[;] appellant here is the judgment debtor satisfied with the award against it. Further is the fact that the record and exhibits themselves can clearly establish the opinions of the medical witnesses, and upon what they were based, the motion pictures depicting the plaintiff when in the jury's view and otherwise. These clearly show the deception worked upon plaintiff's own doctors and witnesses and will become as obvious to the appellate court for a fair and independent determination as was afforded the jury. Plaintiff sought to show that he was a total cripple with no future and no expectancy, and the motion pictures in this case disproved the position he took."
We, at appellant's insistence, viewed the motion pictures, which were presented to the trial judge and jury. We have also reviewed the entire record and it is as complete as every record before an appellate court should be.
Appellant argues, that in spite of the well settled rule that the trial court determines the facts, that rule should not be applied when the record on appeal is as complete as the one before us. Appellant says in effect we are in position to make an independent judgment on the facts.
It is thoroughly settled that only when it can be said as a matter of law that there is no substantial evidence to support a contrary judgment, will an appellate court reverse the order of a trial court on the facts. (Yarrow v. State of California, 53 Cal.2d 427, 434-435, 2 Cal.Rptr. 137, 348 P.2d 687; Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 307, 163 P.2d 689; Spencer v. Young, 194 Cal.App.2d 252, 254, 14 Cal.Rptr. 742; Miller v. Atchison, T. & S.F. Ry. Co., 166 Cal.App.2d 160, 165, 332 P.2d 746; Harper v. Superior Air Parts, Inc., 124 Cal.App.2d 91, 94, 268 P.2d 115; Patterson v. Rowe, 113 Cal.App.2d 119, 122, 247 P.2d 949; McNear v. Pacific Greyhound Lines, 63 Cal.App.2d 11, 17, 146 P.2d 34.) The law which limits a right to review an order granting a new trial on the ground of insufficiency of the evidence is applicable in all respects to an order which grants a new trial on the issue of damages alone.
In the recent case of Bradford v. Edmands, 215 Cal.App.2d 159, at page 166, 30 Cal.Rptr. 185, at page 190, the court said:
"As to the contention that the order granting motion for new trial on the issue of damages was an abuse of discretion, because the verdict was adequate as a matter of law, we refer to the principle that our power to review the granting of such a motion is subject to the same limitations applicable to any other order based on the ground of insufficiency of the evidence. (Spencer v. Young, 194 Cal.App.2d 252, 14 Cal.Rptr. 742; Patterson v. Rowe, 113 Cal.App.2d 119, 122, 247 P.2d 949.) Considering the injuries in this case, we cannot say that the award was adequate as a matter of law."
Finally, appellant argues that this case is peculiarly one in which the trial court should have exercised its inherent right of additur. Appellant quotes from a dissent by Justice Stone, concurred in by Chief Justice Hughes and Justices Cardozo and Brandeis, in Dimick v. Schiedt, 293 U.S. 474, 490, 55 S.Ct. 296, 302, 79 L.Ed. 603, 613. Justice Stone stated that the right of additur could be a valuable took to end litigation and promote justice, pointing out in part:
"* * * the generally recognized advantages of the practice (additur) as a means of securing substantial justice and bringing the litigation to a more a speedy and economical conclusion than would be possible by a new trial to a jury * * *."
It may be that the doctrine of additur should be adopted as the law of this state. To date, however, it is clear that it has been rejected in California. (Dorsey v. Barba, 38 Cal.2d 350, 240 P.2d 604). While the majority opinion concedes at page 359, 240 P.2d at page 609 that "[t]here may be no real distinction between the powers to increase and decrease an award of damages, * * *" yet, in the face of a consummate dissent by Justice Traynor, the court refused to adopt the doctrine.
We find no reason to disturb the order. It is affirmed.
HERNDON and FLEMING, JJ., concur.