The opinion
Judge CLARK
dissenting.
The majority distinguishes Robertson from the present case on the ground that: “Here the amount of plaintiff’s medical expenses, lost wages and lost benefits were disputed while in Robertson the medical expenses were stipulated.” These damage claims were disputed only in the sense that the pertinent allegations in the complaint were denied on information and belief. The plaintiff offered uncontradicted evidence of medical expenses in the sum of $387.00, of loss of wages and wage benefits in the sum of $3,495.79. The jury award was $3,350.00. The fact that the award was less than the amount of actual damages which the uncontradicted evidence tends to show must be considered in light of the charge to the jury. This amount was not referred to in the charge, either in the summary of the evidence or in explaining the law applicable to the damage issue. This indicates to me that the jury did not know the total sum shown by the evidence or did not understand that all the damages shown were recoverable, not that the jury failed to believe some of plaintiff’s evidence. Plaintiff’s testimony of discomfort and pain were fully supported by other witnesses, including the attending physician, Dr. Nelson, and the physical therapist, Ann Hodges. Though some of plaintiff’s symptoms of injury were subjective, Dr. Nelson testified that he had no reason to believe that they did not exist. Obviously some pain and discomfort accompanied the diagnosed acute lumbo-sacral sprain. Under these circumstances the ground relied on by the majority for distinguishing the case is not convincing. In my opinion the verdict is contrary to the instructions of the trial court, is inconsistent, and therefore improper and invalid.
Further, the court failed to charge on plaintiff’s loss of use of her back as an element of damages. There was substantial evidence of such loss of use, apart from pain and suffering and loss of earnings, which required the court to charge on this element of damages. The harm in this error was increased by the failure to award damages for pain and suffering.
*746 I vote to set aside the verdict and order a new trial on all issues.