258 Or at 542. In 1971, Brannan v. Slemp, 260 Or. 336, 490 P.2d 979, reached this court. Brannan claimed to have sustained personal injuries in a rear-end accident, including special damages of $5,553.
However, in the next case which arose on somewhat similar facts, we reached a different conclusion. See Brannan v. Slemp, 260 Or. 336, 490 P.2d 979 (1971). This case also involved a rear-end collision, and there was evidence that the plaintiff suffered neck muscle strain, soreness in the neck and headaches.
However, in Saum v. Bonar, 258 Or. 532, 484 P.2d 294 (1971), we held that where the issue of general damages is controverted in the pleadings and the evidence, and the jury could have concluded that plaintiff had not suffered any substantial injuries, a verdict for special damages only is a valid verdict. In Brannan v. Slemp, 260 Or. 336, 490 P.2d 979 (1971), we found a verdict for special damages and no general damages to be improper where there was uncontroverted medical testimony that plaintiff sustained some pain and suffering and that he had some permanent injury, although not extensive. For other similar cases, see Chopp v. Miller, 264 Or. 138, 504 P.2d 106 (1973), and Moore v. Drennan, 269 Or. 189, 523 P.2d 1250 (1974).
In Saum v. Bonar, 258 Or. 532, 484 P.2d 294 (1971), this court recognized that a jury may be justified in awarding special damages and in refusing to award substantial general damages in a case where, as in this case, the jury could have found that plaintiff's injuries were at most minimal, as distinguished from a case in which plaintiff clearly suffered some serious injury, and that under such circumstances the rule of Flansberg v. Paulson, 239 Or. 610, 399 P.2d 356 (1965), is not applicable. Cf. Chopp v. Miller, 264 Or. 138, 504 P.2d 106 (1972). The rule of Saum v. Bonar, supra, was not applied in Brannan v. Slemp, 260 Or. 336, 490 P.2d 979 (1971), because this court was of the opinion that the plaintiff's evidence of injury from the accident was not challenged by the defendants. The present case, unlike Brannan v. Slemp, supra, presents a clear dispute as to the cause and extent of plaintiff's injuries. Plaintiff alleged that she sustained injuries to her knee, neck, and back in the accident with defendant. It was brought out at trial that plaintiff's knee had been previously injured and for some 20 years prior to the accident it had been treated and operated on, and plaintiff was on crutches at the time of the accident.
We need not decide whether the facts in this case would render it proper for the jury to allow only one dollar in general damages plus special damages. See Saum v. Bonar, 258 Or. 532, 484 P.2d 294 (1971) and Brannan v. Slemp, 260 Or. 336, 490 P.2d 979 (1971). The law is well-established in this state in cases similar to the case at bar that if counsel is present, or had a reasonable opportunity to be present, and made no objection or challenge to the form of the verdict returned by the jury, the insufficiency or irregularity of the verdict is waived.