REVERSED AND REMANDED.
HOWELL, J.
Plaintiff was riding his motorcycle when it was hit from the rear by an auto owned and operated by defendant. Plaintiff filed this action seeking general and special damages for personal injuries and, in a second count, for damages to his motorcycle.
A jury returned a verdict for plaintiff for his damages to the motorcycle and awarded plaintiff $5,429.23 as special damages for medical expenses and lost wages. The jury awarded no general damages. Counsel for plaintiff then moved for a mistrial. However, the trial court sent the jury back for further deliberations after instructing them that they must find general damages before they could award special damages. The court then granted plaintiff's motion for a mistrial. Later, the court accepted and filed the original verdict and entered a judgment thereon. Plaintiff appeals.
As a general rule, a verdict for special damages without an allowance for general damages is improper. Flansberg v. Paulson, 239 Or. 610, 399 P.2d 356 (1965). 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 the instant case, plaintiff alleged that he suffered lacerations and injury to the muscles and tissues of his right leg and ankle. The defendant's answer admitted "some" injury to plaintiff but denied the extent of the injury.
The evidence as to the permanency of plaintiff's injuries and the extent of his injuries was seriously controverted.
However, there was uncontroverted evidence that plaintiff was hospitalized for five days with his leg elevated and that he was in some pain at that time. There was also evidence that he was at home in bed with his leg elevated for three weeks and that he would have some permanent scars on his leg. This is evidence of general damages.
Under the circumstances we believe that the facts fall within the rule of Flansberg v. Paulson, supra, and that the verdict for special damages only was improper. The trial court should not have entered the verdict.
Reversed and remanded for a new trial.