Vasconcellos v. Juarez

I concur in the result. In my opinion, however, the only question involved in this case is whether upon an exception to the denial of the motion for a new trial upon the ground that the amount awarded is excessive this court may reconstruct the issues presented to the jury and emasculate the evidence upon which the verdict is based.

The complaint alleged an assault and battery in the following language: "the defendant did * * * without cause or justification, strike, beat, bruise, and wound plaintiff thereby causing both of his eyes to be discolored and his face and head to become lacerated and swollen as the result of which plaintiff suffered, is suffering, and will continue to suffer, great bodily pain."

Defendant moved for a bill of particulars showing (1) how and in what manner plaintiff suffered from the striking, beating, bruising and wounding as alleged in plaintiff's complaint; (2) in what part or parts of his body plaintiff is now suffering from said striking, beating, bruising and wounding; and (3) in what part or parts of his body and in what particular way the plaintiff will continue to suffer great bodily pain as a result of said striking, beating, bruising and wounding as alleged in plaintiff's complaint. The motion was granted and plaintiff filed the following bill of particulars: "As the direct result and consequence of the defendant's striking, beating, bruising, and wounding, plaintiff received contusion with ecchymosis to both his eyes; a laceration of his right lower eye lid; scratch wounds on his right face and contusions and abrasion on both elbows; contusions and abrasion of the right mastoid area and right lobe of ear; a large stationary apacity in the right media just above and temporally to the center of plaintiff's right vision.

"His right vision was impaired first immediately following the aforesaid assault being 20/200 and thereafter becoming 20/100 and is inflicted with a fully formed cataract.

"His left vision was impaired first immediately following the aforesaid assault being 20/40 and thereafter becoming 20/20.

"The plaintiff will continue to suffer impairment of his vision and ultimately become blind and has continually suffered and still suffers pain in the mastoid region and in his elbow."

No objection was made by defendant to the bill of particulars as filed and in due course and on June 7, 1944, he filed an answer of general denial.

Upon the issues formed by the pleadings the cause came on for trial before the court sitting with a jury on June 25 of the following year. Upon the trial, the plaintiff as a witness on his own behalf testified, without objection, that eighteen months after the time of the assault he became blind in his right eye. He also called a local physician who, without objection, testified that upon his examination of the plaintiff in April, 1944, he found that plaintiff was totally blind in the right eye. The defendant, as a part of his case in chief, called another local physician who testified that he had recently examined the plaintiff's eyes and found that there was an absolute impairment of the vision of the right eye. Both physicians testified that the blindness was caused by a cataract, the latter that the cataract could have been caused by trauma.

Upon the subject of general damages, the jury were instructed, without objection by defendant, as follows: "General damages are such damages as the law implies that a person suffers as the result of a wrong inflicted upon him by a defendant. In this case it would be the pain and suffering, both physical and mental, sustained by plaintiff as a result of the injuries he received, together with any temporary or permanent disabilities, disfigurements or impaired health." By the provisions of Revised Laws of Hawaii 1945, section 10120, which were in effect at the time of trial, it is provided that "Instructions given without objection at the time of settlement to the giving thereof shall be marked `given by agreement' and no exception thereto shall be allowed." The instruction quoted was amended in other particulars not involved in the consideration of the exception and bears the endorsement of the trial judge "GIVEN BY AGREEMENT AS AMENDED."

Appellant takes the position that the allegations of the complaint only admit of proof of general damages, that is, damages necessarily resulting from the wrongful acts complained of; that blindness does not necessarily result from the wrongful acts alleged in the complaint and that damages, if any resulting from blindness, are special damages which should have been specially pleaded; that the bill of particulars does not serve to enlarge the allegations of the complaint but simply to amplify them and that for an assault and battery as alleged the sum of thirty-five hundred dollars was, as a matter of law, excessive. In other words, appellant by his present attorney, differently from his predecessor who tried the case, now maintains that the evidence of impairment of plaintiff's eyesight should be disregarded in determining the measure of damages and the evidence for the purpose of determining whether or not the amount awarded is excessive, be confined to the evidence of damages necessarily resulting from the wrongful acts alleged in the complaint exclusive of the evidence of impaired eyesight.

It is not permissible upon appeal to change the theories mutually adopted and acquiesced in by the parties upon the trial. Where, as here, the plaintiff adopts the theory that damages for loss of eyesight resulting from an assault and battery are general damages and recoverable as such and the defendant acquiesces therein and the trial proceeds to conclusion, including the instructions to the jury, upon that theory the defendant may not, upon appeal to this court upon the single exception that the verdict is excessive, assert a different theory and urge that damages for loss of eyesight resulting from an assault and battery are special damages and not recoverable under a complaint alleging merely an assault and battery. For the purposes of this appeal, the theory adopted below by plaintiff and acquiesced in by the defendant must be accepted as correct and review of the exception alleged must proceed upon that hypothesis.

Nor are we permitted to consider any evidence less than all the evidence in ruling upon the exception. There is but one question for us to consider on this appeal and that is whether or not the trial court abused its discretion in denying the motion for a new trial. The evidence must be taken in its most favorable aspect on behalf of plaintiff¹ and the evidence includes evidence of eye injury. It is the duty of this court to examine all of the evidence and from all of the evidence, considered in the light most favorable to plaintiff, determine whether the damages awarded were "so excessive as to create the belief that the jury have been misled either by passion, prejudice or ignorance."² It is not as though the question before this court was on an exception to the verdict. It is extremely doubtful whether an objection to a verdict on the ground that the same is excessive may be reviewed upon an exception to the verdict upon that ground. The exception alleged to the verdict in the instant case was general. But however that may be, the exception under consideration is to the denial of the motion for a new trial. A motion for a new trial on the ground that the verdict is excessive is addressed to the sound discretion of the trial judge. The trial judge, upon consideration of the motion, is not at liberty to reconstruct the issues and consider less than all the evidence adduced. And this court in reviewing the action of the trial court is confined to the single question of whether the trial court abused its discretion. It is not the privilege of this court to approach the question as though it were upon an exception to the verdict as contrary to the law and the evidence. Under such an exception there could be no objection in a proper case to considering less than all the evidence for the reason that even a portion of the evidence might sustain a verdict. But where, as here, the only exception presented for review is that alleged to the denial of a motion for a new trial upon the ground that the verdict was excessive, this court must consider all the evidence for the purpose of determining whether, upon all the evidence, the trial court abused its discretion in denying the motion for a new trial.

¹ City of Phoenix v. Nutt, 36 Ariz. 405, 286 P. 371.

² Sedgwick, Damages (8th ed.) § 1320, p. 639.