DocketNumber： 43,053
Judges： Schroeder, Wertz, Robb, Fatzer
Filed Date： 1/26/1963
Status： Precedential
Modified Date： 10/19/2024
The opinion of the court was delivered by
This is a damage action wherein the plaintiff, a fourteen-year-old boy, was injured from a high voltage electrical
The only question presented is whether the trial court abused its discretion in finding the verdict excessive and in ordering a new trial on the issue of damages, unless the plaintiff agreed to accept the remittitur.
The trial court in considering the appellant’s motion for a new trial and supplemental motion for a new trial announced that there was no valid ground for a new trial save one, and that was the possible ground that the judgment was excessive. In announcing the decision the court said:
“I have not reached any conclusion that this jury was under what I would call passion and prejudice, but I do believe that the jury was extremely generous with someone else’s money and that they were possibly motivated somewhat by the fact that the defendant was a large corporation, believing perhaps that this judgment would be paid by the stockholders thereof, and not realizing that such judgments are paid by utility rate payers, if state regulation of utility rates works as it is supposed to.
“This jury awarded the plaintiff, beside some eight thousand dollars or more for his medical, three and a half times the maximum of what he would have been awarded in case of death, three and a half times the maximum allowance for his death. I do not believe the jury would have rendered this verdict if the defendant had been an individual.
“Under all these circumstances I think the verdict was excessive and I so find. I believe that, and only that reason is sufficient for granting a new trial, and that a new trial should be granted unless plaintiff will agree to a remittitur, a remittitur that will leave a judgment of $60,000.00 and costs, . . .”
Thereafter the trial court, on the appellant’s motion to reconsider and clarify its order for a new trial, modified its order to the effect that if the appellant did not accept the judgment on the basis of the remittitur, the new trial be upon the issue of damages alone.
We construe the foregoing statement of the trial court to be a finding that there was no passion or prejudice involved on the part of the jury in awarding the verdict of $95,000, or that the damages awarded were so excessivé as to permeate the entire verdict.
It has been held where the trial court gives the plaintiff an option to remit, or in the alternative, to submit to a new trial, it necessarily found that there was neither passion nor prejudice in connection with the verdict. It merely disagreed with the jury respecting the amount which would compensate for the plaintiff’s injuries.
In the Emerick case it was said:
“. . . We must start with the assumption that the trial court, placed in a position far more favorable than is this court for discovering whether or not tire original verdict was tainted with prejudice and passion, determined that question against the defendants’ contention, holding, however, that the amount of the judgment was excessive. In such a situation, it becomes the first duty of the trial court to determine whether the excessive verdict has been rendered as a result of prejudice and passion which deprived the defeated party of a fair trial; and where the court has reason to believe this to be tire case, the taint cannot he removed, nor the error cured, by merely reducing the verdict to an amount which the court thinks would compensate the injured party, if he is entitled to recover.
“. . . we are confronted with the fact that the trial court saw and heard the witnesses and must have been convinced that tire error of the jury in fixing an excessive amount of damages did not permeate the entire verdict. . . .” (pp. 140, 141.)
It has also been held in an action for damages for personal injuries, where there was a judgment for the plaintiff and nothing in the record to indicate passion or prejudice other than the amount of the verdict, this court will not require the plaintiff to accept a remittitur or grant a new trial, unless, under the facts disclosed by the record, the judgment is so large that it cannot in reason be allowed to stand. Thus, if a jury returns a verdict in excess of that which the trial court or this court deems proper under the evidence, and without any other indication of passion or prejudice on the part of the jury, the fact that the verdict is larger than the court can sustain does not require a new trial if the plaintiff is willing to consent to a proper remittitur. (Green v. Fleming, 126 Kan. 560, 268 Pac. 825; and Blevins v. Weingart Truck & Tractor Service, supra.)
In Young v. Kansas City Public Service Co., 156 Kan. 624 135 P. 2d 551, this subject was discussed in the following language:
“The amount of the verdict was $10,310.45. Appellant argues a verdict in so large an amount, where the sole permanent disability is the loss of half of a hand and where there was neither lengthened sickness nor extraordinary suffering, is so excessive as to clearly demonstrate the passion and prejudice of the jury. Upon that premise it argues the verdict should have been set aside and a new trial should have been granted. It is, of course, true that a verdict actually rendered on bias, passion or prejudice cannot be permitted to stand. That is true whether the verdict be large or small. The mere fact, however, that a verdict may be excessive does not necessarily mean it was based on*750 passion and prejudice. It may have been occasioned by a failure of the jury to properly consider and determine what amount of money would actually compensate for the injury sustained or it may have been the result of a tendency to be somewhat generous with the money of a particular defendant. It is common knowledge juries are not always as considerate and circumspect in that regard where the defendant is a corporation as it is where the action is between individuals. While such an attitude of laymen is understandable, by reason of circumstances upon which we need not dwell now, the bench and bar also understand that compensation for damages actually sustained, and not the individual or corporate entity of the defendant, constitutes the true basis of award.
“. . . In fact, there is nothing in the record which remotely indicates passion or prejudice unless it can be said to be reflected in the amount of tire verdict. . . .” (pp. 628, 629.)
Another decision in point is Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 133 P. 2d 149. Other decisions treating this subject matter are Lienbach v. Pickwick Greyhound Lines, 135 Kan. 40, 10 P. 2d 33, and cases cited therein; Cox v. Kelloggs Sales Co., 150 Kan. 561, 95 P. 2d 531; and Wiggins v. Missouri-K.-T. Rid. Co., 128 Kan. 32, 276 Pac. 63.
An examination of the record in the instant case discloses that there is nothing which remotely indicates passion or prejudice on the part of the jury, unless it can be said to be reflected in the amount of the verdict. On this point the trial court found the jury was not influenced by passion or prejudice. The trial court, in a much better position to judge the matter than this court, thought the verdict excessive and required the remittitur, if a new trial on the issue of damages was to be avoided. This further demonstrated that the trial court did not regard the amount of the original verdict as having resulted from passion or prejudice on the part of the jury, but rather discloses that it was the judgment of the court that the verdict was excessive in view of the evidence of injuries. This is in effect the opposite of a finding by the trial court that the jury was influenced in the amount of its verdict by passion and prejudice.
This court has always held that an order of the trial court allowing a motion for a new trial will not be reversed unless abuse of discretion is apparent. (Bateman v. Roller, 168 Kan. 111, 211 P. 2d 440; Clark v. Southwestern Greyhound Lines, 146 Kan. 115, 69 P. 2d 20; and Fritchen v. Jacobs, 138 Kan. 322, 26 P. 2d 448.)
In Bishop v. Huffman, 175 Kan. 270, 262 P. 2d 948, the court said:
“. . . an order of a trial court sustaining a motion for a new trial will not be reversed unless abuse of discretion is apparent . . .; and that the granting of a motion of such nature rests so much in the trial court’s sound*751 discretion that its action with respect thereto will not be held to constitute reversible error on appellate review unless the party complaining thereof has clearly established error with respect to some pure, simple, and unmixed question of law . . .” (pp. 274, 275.)
The above language was quoted in Nicholas v. Latham, 179 Kan. 348, 295 P. 2d 631; and Crockett v. Missouri Pacific Rld. Co., 188 Kan. 518, 363 P. 2d 536.
The same rule applies where the trial court finds the verdict excessive and orders a new trial on the issue of damages, unless the plaintiff agrees to accept a remittitur.
Furthermore, this court has held where a trial court may rightfully exercise a large discretion in the matter of granting or refusing a new trial, that a much stronger showing with respect to abuse of discretion is required where a new trial has been granted than where it is refused, and this court will not reverse the trial court’s ruling unless satisfied that it was wholly unwarranted and an abuse of its discretion. (Bateman v. Roller, supra; and Sundgren v. Leiker, 180 Kan. 617, 305 P. 2d 843.)
The same rule applies where the trial court finds the verdict excessive and orders a new trial on the issue of damages, unless the plaintiff agrees to accept a remittitur.
The question therefore resolves into whether the trial court abused its discretion in finding the verdict excessive in view of the evidence of injury presented by the record.
The appellant contends “The trial court did not find that its conscience had been shocked by the amount of the verdict, and did not find that there was any indication of improper action, or passion or prejudice on the part of the jury. It simply felt that the verdict was excessive, and, in effect, that the verdict was more than the judge would have given if he had been on the jury, or trying the case himself. This is not sufficient ground or reason to change or reduce a jury’s verdict, and constitutes nothing more than substituting the judgment of the court for that of the jury, and thus, in effect, deprived plaintiff of his right to a jury trial. . . .”
Cases upon which the appellant relies (Domann v. Pence, 183 Kan. 135, 325 P. 2d 321; Knoche v. Meyer Sanitary Milk Co., 177 Kan. 423, 280 P. 2d 605; Spencer v. Eby Construction Co., 186 Kan. 345, 350 P. 2d 18; Neely v. St. Francis Hospital & School of Nursing, 188 Kan. 546, 363 P. 2d 438; and others) are all situations in which the Supreme Court was requested to pass upon a verdict as being
The general rule is that the Supreme Court will not require the plaintiff to accept a remittitur or grant a new trial, unless under the facts disclosed by the record, the judgment is so large that it cannot in reason be allowed to stand. (Blevins v. Weingart Truck & Tractor Service, supra.)
The situation presently confronting the court was not, however, the focal point of the court’s attention when the language relied upon was used in upholding the respective verdicts in those cases.
Contrary to the appellant’s contention, we think the trial court’s action in ordering a remittitur indicates that its conscience was sufficiently shocked by the amount of the verdict to warrant such action.
The appellant argues the trial court was influenced by passion and prejudice in ordering a remittitur as indicated by his remarks in announcing the decision. The appellant seizes upon the remarks that the jurors were extremely generous with someone else’s money and that they were possibly motivated somewhat by the fact that the defendant was a large corporation. Language used by this court in Union Pacific Rly. Co. v. Milliken, 8 Kan. 647, recognized that suits for damages against corporations average larger verdicts than like suits against individuals and discussed this point in substantially the same manner as the trial court.
The comparison made by the trial court of the damages awarded in this case with the maximum that could have been awarded in case of death is seized upon by the appellant, but here again similar language was used in the Milliken case by comparing the amount of the verdict for the loss of one hand, which was amputated just above the wrist, with the amount authorized under the wrongful death statute. On these points the appellant’s contentions are without merit and deserve no further consideration.
The evidence in this case disclosed that the appellant sustained injury while he and another playmate were climbing in a tree located upon the property of the residence in which the appellant and his parents lived. The tree was a large spreading tree which had branches extending over and beyond the roadway running to the
The parties stipulated at the trial that the appellant’s past expenses and past medical bills, including nursing and mileage, totaled $7,305.32. They further stipulated that the appellant, at fourteen years of age, would have a life expectancy of 57.72 years.
Regarding future medical expense, Dr. Omar M. Raines testified in effect that whether the appellant’s left arm would be amputated would be a decision for the appellant to make in the future. He estimated the expense of such an operation to be a maximum of $730 plus the cost of an artificial arm at between $200 and $450.
There was no other evidence introduced of any other actual monetary damages to the appellant, nor was there any evidence of anticipated future loss of earnings as a result of his injury.
In addition to the complete loss of the appellant’s left hand and forearm, he has lost the middle finger of his right hand, and has injuries to the index and ring fingers of his right hand. As to the right arm and hand Dr. Robinson, the appellant’s witness, testified that “Except for the fact there is something wrong with the other hand that doesn’t really bother too much.” The appellant also sustained a severe electrical shock and has large areas of scarring on his stomach and on both the inner and outer thighs of his legs. As to these injuries Dr. Robinson testified:
“A. . . . The other burns and other scars, although evident to see, don’t' cause him any real disfunction.
“Q. And he has good function of his legs?
“A. Yes, as far as I know.”
The evidence discloses the appellant has spent almost one hundred sixty days in hospitals for the treatment of these injuries, which were described by Dr. Raines as among the most painful that can be endured by mankind.
The testimony indicated that at the time of the trial the appellant had improved in his class work and activities. The appellant himself testified that he was getting along pretty well in school and was doing better than he did the previous year.
The judgment of the lower court is affirmed.