Striker v. Nakamura

OPINION OF THE COURT BY

ABE, J.

This suit was brought by Lude Pattison Striker, plaintiff, against Roy Takeo Nakamura, defendant, to recover damages for personal injuries and damage to her automobile.

On December 13, 1962, while plaintiff was driving along Ala Moana Boulevard toward Waikiki, defendant crossed over the white dividing line into plaintiff’s lane. Defendant testified that he did not see plaintiff’s car in the next lane before attempting to change lanes.

Plaintiff testified that to avoid a collision she stepped on her brakes and swerved her car to the right causing it to go over the curb onto the sidewalk and collide with a utility pole. There was no collision between the two cars.

After the accident plaintiff visited her physician, Dr. Wakatake, and complained of a headache, shoulder ache and neck stiffness. About two months thereafter, while she was still under Dr. Wakatake’s care, plaintiff became aware of the absence of her regular menstrual flow. She testified that she had been in good health prior to the accident and that her menstrual periods were regular.

Dr. Wakatake testified that plaintiff had suffered a whiplash; that plaintiff was too young for her regular menopause; and that in his opinion the cessation of menses was caused by the accident trauma.

Plaintiff stated that as she continued to have pains in the neck and suffered headaches, and on the advice of a friend, on January 10, 1963 she saw Dr. Richard Dodge, an orthopedic surgeon. While plaintiff was under Dr. Dodge’s care, he prescribed heat therapy and the wearing of a cervical collar.

On September 15, 1965, Dr. Dodge referred plaintiff to Dr. Bennett, a neurosurgeon, and to Dr. Henry, a radiologist, because she still complained of neck pains and headaches.

The defendant conceded to the reasonableness of medical expenses totalling $540.91 and bills, checks, etc., were introduced into evidence without any objection. In addition to these medical expenses, plaintiff incurred damages to her automobile in the sum of $107.73.

After trial, the jury returned a verdict for the plaintiff for the sum of $307.73. Plaintiff filed this appeal from a final judgment on the verdict and an order denying a motion for a new trial on the issue of damages.

I.

It is plaintiff’s contention that the trial judge erred when he refused to instruct the jury to take into consideration the early beginning of the menopause, if probably induced by trauma resulting from defendant’s negligence, as an element of damages.

The trial judge’s instruction on this point was “In determining the amount of damage, if any, to which plaintiff may be entitled herein, you may not take into consideration any pain and suffering caused solely by her menopause.”

Plaintiff had requested the court to amend that instruction by adding the words “but you are entitled to consider as one of the elements of damages the early beginning of the menopause, if any, and its mental and physical effect on her by reason of its early beginning.”

Dr. Wakatake had testified that accident trauma was the cause of the cessation of menstruation¹ and we agree with plaintiff that in light of Dr. Wakatake’s testimony, plaintiff was entitled to an instruction as to the effect of early beginning of the menopause on her mental and physical well being as an element of damages. Brandt v. Mansfield Rapid Transit, Inc., 153 Ohio 429, 92 N.E.2d 1 (1950).

II.

Plaintiff also contends that the verdict in her favor for the sum of $307.73 was so grossly inadequate that the trial judge erred in denying plaintiff’s motion for a new trial only on the issue of damages.

At the trial, plaintiff proved that she incurred medical expenses totalling $540.91 and suffered damage to her automobile in the sum of $107.73. It was not disputed that plaintiff incurred expenses and suffered damages totalling $648.64. Therefore, it must be concluded that the verdict is inadequate.

The issue squarely before us is whether we are powerless to correct a miscarriage of justice, when the trial court by denying a motion for a new trial has failed to do so.

It is our conclusion that the verdict of the jury was grossly inadequate and as stated in Reisberg v. Walters, 111 F.2d 595 (6th Cir. 1940) at 598, “... it demonstrates failure to consider essential elements of damage or damages in amount conceded to have been suffered; that it demonstrates failure to abide by the instructions of the court and an improper compromise between liability and compensation. This being so, there was error of law in overruling the motion for a new trial. . . .”

Plaintiff’s motion for a new trial only on the issue of damages was denied by the trial judge and she is contending that this court should reverse the order of the trial judge and grant a new trial only on the issue of damages. There is no question that plaintiff is entitled to a new trial upon that issue, but the question of limiting the new trial to that issue alone is a very serious one.

When the jury returned a verdict in favor of the plaintiff, the jury, in effect, found the defendant guilty of negligence and the plaintiff free from contributory negligence. However, the jury’s verdict in the sum of $307.73, which does not fully compensate plaintiff for proven special damages, is grossly inadequate and we believe it raises the question whether to reach an agreement the verdict was the result of an improper compromise made by each of two opposing factions of the jury, one which conscientiously believed that the defendant should prevail in the action and the other equally conscientious in the opinion that plaintiff should recover damages commensurate with the injuries sustained by her.

Kenneth E. Young for appellant, cross-appellee. George L. Dyer,-Jr. {Anderson, Wrenn & Jenks of counsel), for appellee, cross-appellant.

Because of this uncertainty and the fact that something other than the evidence of damages must have influenced the jury to return such a low verdict for the plaintiff, we must infer that the verdict does not represent a fair estimate of plaintiff’s loss, but may represent a difference of opinion among the jurors as to the defendant’s liability and a compromise of the controversy at the expense of both litigants. Southern Ry. v. Madden, 224 F.2d 320 (4th Cir. 1955); Bencich v. Market St. Ry., 20 Cal. App.2d 518 (1937); Schuerholz v. Roach, 58 F.2d 32 (4th Cir. 1932); Simmons v. Fish, 210 Mass. 563, 97 N. E. 102 (1912).

Under the circumstances, we believe that it would work a grave injustice upon the defendant to compel him to a new trial only on the issue of damages and we, therefore, direct that a new trial be granted on all the issues.

III.

The defendant has filed a cross-appeal contending that the trial judge as a matter of law should have found that plaintiff was gu'ilty of contributory negligence or that plaintiff’s negligence was the proximate cause of the injuries and damages she suffered.

Contrary to defendant’s contention, there were conflicting testimonies on the issue of proximate cause of the injuries. It is the law in Hawaii that questions concerning credibility of witnesses and the weight of evidence are for the jury alone to decide and may not be reviewed by this court on appeal and where the verdict is supported by substantial evidence, more than a mere scintilla, the verdict will not be set aside. Reynolds v. Van Culin, 36 Haw. 556 (1943); Darcy v. Harmon, 30 Haw. 12 (1927).

Thus, it could be said that the cross-appeal taken by the defendant is without merit, except for the holding of this court under point II of this opinion.

Plaintiff’s other specifications of error are without merit.

Reversed and remanded for a new trial on all issues.

1 "Q Did you at that time have any professional opinion as to whether this cessation of menses was a natural menopause, or a menopause induced by trauma or other cause?

“A I think from experience it’s menopause caused by accident trauma.

“Q That was your opinion ....

"A (Interposing) That’s my opinion.

“Q .... about that time?

“A That’s right.

“Q How medically would trauma — if you can explain to the Jury what the word ‘trauma’ is first, what do we mean by the word ‘trauma’?

“A Well, trauma could be either physical or mental, like accident, auto accident, is physical, mental accident would be worry, death in the family, or injury to any members of the family.

‘‘Q As an expert in this field, is it possible for menopause to be brought on prematurely, either by trauma of shock, or by great emotional strain? .

"A I think in this case it was trauma.”