
    Bruce J. COOPERMAN v. James Jefferson BELLAMY, et al.
    Civ. 6548.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1989.
    Rehearing Denied March 22, 1989.
    Certiorari Quashed Dec. 1, 1989 Alabama Supreme Court 88-791.
    L. Vastine Stabler, Jr., and Samuel C. Campisi of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellant.
    J. Mark Hart and Barbara F. Olschner of Spain, Gillon, Tate, Grooms & Blan, Birmingham, for appellees.
   INGRAM, Judge.

This case was originally assigned to another member of this court. It arose out of a traffic accident on October 21, 1985. Bruce J. Cooperman’s pickup truck was stopped in traffic when it was passed on the left by a moving van owned by William D. Bellamy and operated by James Jefferson Bellamy. As the van passed the pickup truck, one of the van’s side doors swung open and struck the corner of the pickup. Cooperman claimed personal injuries as a result. The case was tried before a jury, which rendered a verdict in favor of Coo-perman and awarded him $200.00 in damages. He moved for a new trial, but his motion was denied. He then perfected his appeal to this court.

The sole issue on appeal is whether the trial court erred in denying Cooperman’s motion for new trial on the ground of inadequacy of damages.

It is axiomatic that a jury verdict is presumed to be correct and should not be set aside on the ground of inadequacy of damages unless the amount is so inadequate in light of the evidence that it plainly indicates that the verdict was the result of passion, prejudice, or improper motive. Lartigue v. Fleming, 489 So.2d 583 (Ala.Civ.App.1986). This presumption is strengthened on appeal when the trial court has denied a motion for new trial. Orr v. Hammond, 460 So.2d 1322 (Ala.Civ.App.1984).

The record in this case reveals that the severity of the accident was disputed. All of the damages claimed by Cooperman were contested by the Bellamys, with the exception of Cooperman’s emergency room bill on the day of the accident in the amount of $181.00. Cooperman insists that the jury’s award of $200.00 was insufficient to compensate him, at a minimum, for his special damages and for pain and suffering. We disagree.

A plaintiff who proves a cause of action is at least entitled to receive nominal damages. Benson v. Vick, 460 So.2d 1309 (Ala.Civ.App.1984). If the evidence shows more and if special damages are proved, the jury’s award may not be less than that amount. Ex parte Patterson, 459 So.2d 883 (Ala.1984). Further, if there are special or compensatory damages together with proof of pain and suffering, then the jury’s award must be in excess of the special damages. Benson v. Vick, supra. The amount of damages awarded for pain and suffering, however, is left to the discretion of the jury. Benson v. Vick, supra.

Here, the jury found that Cooperman did prove a cause of action against William Bellamy. Cooperman’s emergency room bill of $181.00 was undisputed; therefore, he was entitled to recover at least that amount. The jury’s award exceeds the special damages by $19.00, and it is conceivable that the excess is an award for pain and suffering. Our review of the record indicates that evidence was presented from which the jury could have determined that the accident complained of was not the proximate cause of any other damages claimed by Cooperman. There is no indication that the verdict in this case was the result of passion, prejudice, or improper motive. In light of the above, we find that this case is due to be affirmed.

AFFIRMED.

HOLMES, P.J., concurs.

ROBERTSON, J., dissents.

ROBERTSON, Judge

(dissenting).

I respectfully dissent.

In the case at bar, the evidence was greatly in dispute as to the extent of the injuries suffered by Cooperman in the accident. However, the evidence did show that Cooperman drove himself to a hospital emergency room shortly after the accident. The emergency room visit cost $181. A physician in the emergency room instructed Cooperman to stay off work for several days. In addition, Cooperman visited his personal physician, Dr. Thomas Staner, a few days after the accident, complaining of injuries suffered in the accident. Dr. Stan-er treated Cooperman for back pain, neck pain and a “drag” in the right foot.

Cooperman had previously undergone major surgery on his back and two surgeries on his left knee. After the accident, Cooperman again underwent back surgery and knee surgery. The defendants contend that these surgeries were totally unrelated to the October 21, 1985, traffic accident and were instead precipitated by other accidents involving Cooperman. Cooperman also asserts that he suffered a permanent reduction in earning capacity as a result of the accident in question. The defendants again argue that this accident was not the proximate cause of the reduction in earning capacity.

In light of the defendant’s argument as to the lack of proximate cause, the trial court determined that had the jury found in favor of the defendants the court would not have been entitled to set aside that verdict. The trial court thus determined that if no award would have been proper, then an award of only $200 was proper. Therein the trial court erred. The jury’s verdict established the liability of the defendants. Had the jury determined that the defendants’ action did not proximately cause Cooperman’s injury, it would have been compelled to find in favor of the defendants. Once the jury determined liability, it then became the jury’s responsibility to award compensatory damages in accordance with the injuries suffered. McCain v. Redman Homes, Inc., 387 So.2d 809 (Ala.1980), Bibb v. Nelson, 379 So.2d 1254 (Ala.1980).

Even assuming the back surgery and knee surgery were not proximately caused by the October 21, 1985, accident, the jury verdict in this case is still inadequate. Coo-perman proved special damages of over $200 by proof of the wages lost in the first week after the accident. When there are special or compensatory damages together with some proof of pain and suffering, the jury must award an amount in excess of the special damages. Thornton v. Hale, 504 So.2d 314 (Ala.Civ.App.1987); Benson v. Vick, 460 So.2d 1309 (Ala.Civ.App.1984). Here the special damages undisputedly exceeded $200. Thus the jury’s award is inadequate.

I do not mean to say that all the damages claimed by Cooperman are due to be awarded. Special damages are by definition damages which “actually flow from the [tortious] Act”. C. Gamble, Alabama Law of Damages, § 36-1 (2d ed. 1988). A jury would be entitled to decline to award those damages which it determines did not actually flow from the auto accident. It may not, however, award less than the amount of damages conclusively proven to have arisen out of the accident.

Therefore, I respectfully dissent.  