Stacy v. Goff

Knutson, Justice

(dissenting).

I think that there should be an affirmance. It may be true that the evidence in this case would sustain a larger verdict. It is also true, however, that there is substantial support for the verdict which we have. We have so often said that the matter of granting a new trial for inadequacy or excessiveness of a verdict is a matter resting almost wholly in the discretion of the trial court that it no longer needs any citation of authority. 5 Dunnell, Dig. & Supp. § 7133. It is only when the verdict is so inadequate or excessive that we are convinced that it could only have been rendered on account of passion or prejudice that we have a right to interfere. On this theory we have affirmed many verdicts of late years which seemed too high. It may well be that the time has come for us to use a new yardstick in determining whether a verdict is excessive or inadequate; but until we do so, we should be consistent and apply the same rule for determining whether a verdict is inadequate as we do for determining whether it is excessive. The question in either case is not whether we would have returned a higher or lower verdict had we been sitting as the jury but whether the verdict returned by the jury is so inadequate or excessive that it could only have been rendered on account of passion or prejudice.

Here, part of the most serious injuries claimed by plaintiff are those which she suffered to her upper back. Without going into great detail, the evidence shows that, prior to the accident resulting in the injuries for which she now seeks to recover, she had been involved in two other accidents. In one she suffered a serious injury to her back and in the other she suffered a strain to her back. After the current accident, she failed to complain of any pain in her neck until five months after the accident. There is medical evidence that an injury of the type she now claims to have suffered would have resulted in immediate pain. There is other evidence, which we need not recite, from which the jury could come to the conclusion that not all of plaintiff’s present troubles arose from the accident here involved. The verdict is substantial. If we discount the injuries which the jury could have found resulted from other accidents, it seems to me that it is not so inadequate that we can say it was based on passion and prejudice. Nothing in the record, aside from the amount of the verdict itself, would establish passion or prejudice. The trial court in its memorandum to its order denying a new trial, said:

“In view of all of the testimony, including certain impeachments of the plaintiff and evidence of prior injuries and physical conditions, as well as certain of the plaintiff’s own medical testimony, the Court is not justified in disturbing the finding of the jury upon the ground that the verdict is inadequate.”

The trial court had the opportunity of observing plaintiff and her witnesses. I think that his analysis of the evidence should stand.