Sharp v. Bragg Crane Service, Inc.

ARGUELLES, J., and DUNN (G. W.), J.,* Concurring.

Most of defendant’s contentions of error concerning plaintiff’s testimony as to damages and the alleged prejudicial statements of plaintiff’s attorney were not preserved by objection and are thus waived on appeal. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 272, pp. 4260-4261.)

Additionally, the jury was properly instructed not to award speculative damages (BAJI Nos. 14.60 and 14.61), that argument of counsel regarding damages was not evidence (BAJI No. 14.62), and that statements of counsel during trial were not to be considered as evidence (BAJI No. 1.02).

Although a special verdict was returned, the jury was not requested to segregate damages. Pain and suffering and loss of earning capacity, as distinguished from future lost earnings, are items of general damage and may be proved by the plaintiff’s own testimony. (See Cal. Attorney’s Damages Guide (Cont.Ed.Bar 1974) Appen.: Personal Injury, §40, pp. 292-293.) A personal injury plaintiff may also testify as to the nature and extent of his own injuries and give his lay opinion that medical services rendered were reasonably necessary for his treatment and that the charges were reasonable (if he paid them; here, proof in the form of payments by plaintiff’s *997compensation carrier was sufficient). (See Cal. Attorney’s Damages Guide, supra, Appen.: Personal Injury, § 35, p. 290.)

The defendant has the burden on appeal to show that the verdict was unsupported by substantial evidence. Yet, here the unsegregated verdict may properly have consisted of components reflecting pain and suffering, medical expenses, past lost earnings, and loss of earning capacity. Defendant has failed to demonstrate that any part of the verdict was unsupported, given plaintiff’s uncontradicted testimony on damages. Had plaintiff failed to prove the elements of any of his various damage claims appropriate and timely objection should have been made. Any misconduct by plaintiff’s attorney was likewise waived by failure to object. (6 Witkin, Cal. Procedure, supra, Appeal, § 272.)

Assigned by the Chairperson of the Judicial Council.