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 P.2d 115 (1963); Baden v. Sunset Fuel Co., 225 Or. 116, 357 P.2d 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.
222 Or at 523-524. 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.
(Emphasis added.)See Baden v. Sunset Fuel Co., 225 Or. 116, 120, 357 P.2d 410 (1960) (citing ORS 19.125 (2) and stating the "familiar precept that not every error entitles a litigant to a new trial but only error which has resulted in prejudice to him"). That statute sets forth the test โ whether a trial court's error "substantially affect[ed] the rights of a party" โ under which we must determine whether an error requires reversal or modification. A determination that an error did substantially affect the rights of a party within the meaning of ORS 19.125 (2) leads to the conclusion that the trial court committed "prejudicial," or "harmful," error, requiring reversal or modification of the trial court's judgment.
Accordingly, we also hold that the rule of Flansberg, and other decisions to the same effect, has no application under these particular facts. These cases include the following: Hall v. Cornett, 193 Or. 634, 240 P.2d 231 (1952); Stein v. Handy, 212 Or. 225, 319 P.2d 935 (1957); Baden v. Sunset Fuel Co., 225 Or. 116, 357 P.2d 410 (1960). For all of these reasons, we remand this case to the trial court with instructions to reinstate the verdict of the jury.
Such an order will not be reversed if it can be sustained on any ground in the motion whether referred to in the order or not. Durnford v. Worden, 242 Or. 536, 410 P.2d 1020 (1966); Baden v. Sunset Fuel Co., 225 Or. 116, 121, 357 P.2d 410 (1960); Hillman v. North. Wasco County PUD, 213 Or. 264, 275, 323 P.2d 644 (1958). One of the grounds specified in plaintiff's motion for a new trial was that the court committed error by limiting its instructions about defendant's duties to the allegation that she failed to signal.
An order of a trial court granting a new trial will be sustained if it can be sustained upon any ground contained in the motion, but if there is no proper ground in the motion the order will be reversed. Baden v. Sunset Fuel Co., 225 Or. 116, 121, 357 P.2d 410 (1960). The motion for a new trial in the case at bar challenged the trial court's instruction that the jury could consider testimony about comparable sales as probative evidence of the value of the property taken, as well as evidence bearing upon the witness's qualifications to testify as a value expert.
Nominal damages are usually defined as a trivial sum and are usually represented by a judgment for one dollar or a lesser sum. See Baden v. Sunset Fuel Co., 225 Or. 116, 118, 357 P.2d 410 (1960), and authorities there cited. However, an examination of the cases will disclose that the term "nominal" as applied to damages is a relative term and will frequently vary according to the circumstances of each case. What may be substantial damages in one case may be held nominal under other circumstances.
The first verdict should have been received as a valid verdict, as the first verdict was one the jury could properly return. Their return of the second verdict was not misconduct. See Baden v. Sunset Fuel Co., 225 Or. 116, 357 P.2d 410 (1960). Amended Art VII, ยง 3, of the Oregon Constitution, provides that if, "the judgment appealed from should be changed, and the supreme court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the supreme court."
"No judgment shall be reversed or modified except for errors substantially affecting the rights of the parties."Baden v. Sunset Fuel Co., 225 Or. 116, 357 P.2d 410 (1960), states: "* * * It is a familiar precept that not every error entitles a litigant to a new trial but only error which has resulted in prejudice to him.
We do note that there are some older cases where courts in other states have found nominal damages in excess of $75 or $100 are legally impermissible. Baden v. Sunset Fuel Co. , 225 Or. 116, 119, 357 P.2d 410 (1960) ; Gould v. Mountain States Tel. & Tel. Co. , 6 Utah 2d 187, 309 P.2d 802 (1957) ($75); Lucas v. Morrison , 286 S.W.2d 190 (1956) ($100); Moyer v. Cordell , 204 Okl. 255, 228 P.2d 645 (1951) ($105); People v. Giacobbi , 83 Cal.App. 12, 256 P. 299 (1927) ($100); Broads v. Mead , 159 Cal. 765, 116 P. 46 (1911) ($100).--------