Opinion
No. 27850.
June 20, 1950.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, JOHN A. WITTHAUS, J.
Lashly, Lashly, Miller Clifford, St. Louis, Oliver J. Miller, St. Louis, for appellant.
Blumenfeld Abrams, St. Louis, Selden Blumenfeld, St. Louis, for respondent.
This is a suit for damages arising out of injuries to the plaintiff's person and property. The injuries resulted from a collision between an automobile owned and driven by the plaintiff and a truck owned by the defendant. The defendant sought to recover damages to her truck by way of counterclaim but the jury found for the plaintiff on both his petition and defendant's counterclaim, awarding him damages in the sum of one thousand dollars. Thereafter the plaintiff moved for a new trial stating, among other reasons for the motion, that the verdict was inadequate and further stating that it was "so inadequate as to show mistake and misunderstanding on the part of the jury with respect to the instruction on the measure of damages requested by plaintiff and given by the court." On these grounds the court sustained the motion and the defendant appeals.
The collision between the vehicles involved in this suit took place at a road intersection in St. Louis County. The defendant's truck carrying a load of crushed rock ran into the side of plaintiff's automobile as it was crossing the intersection. Since the only assignment of error raised is that the court erred in setting aside the verdict on the ground that it was inadequate we will limit our discussion of the evidence to the question of plaintiff's damages.
On the 22d of May, 1948, plaintiff was driving his automobile with his grand-daughter as a passenger when defendant's truck struck the automobile. The plaintiff was rendered unconscious by the collision and was taken to the St. Louis County Hospital. After about three hours there he was sent to his home. A Dr. Moore was called and the patient was then taken to the Marian Hospital where he was confined for seven or eight days.
The plaintiff was a man past middle age who had been engaged in the trades of carpenter work and building for a number of years. Just prior to being injured he had worked for a contractor as a carpenter earning an average weekly wage of $88. He had done no work since his injury up to the time of the trial which was about a year later, except for two or three days' work in December of 1948. He stated that he could no longer hold a hammer because of a weakness in three fingers of the right hand, and that he could do no lifting because of pain and limitation of movement in the left arm. He also stated that he could not raise his left arm to the side above shoulder height.
Dr. Moore testified that when he was first called to see the plaintiff he found him suffering from pains in the chest, left shoulder, both legs and complaining of being sore throughout his body. After having sent the patient to the Marian Hospital and after having had X-rays made the doctor found a fracture of the left clavicle or collar bone and a fracture of the fourth rib which had caused the rib to puncture the right lung. There was also an abrasion on the plaintiff's thigh.
The plaintiff was placed in a clavicle brace to throw his shoulders back and hold the collar bone in position and he was obliged to wear this brace across his back for about ten weeks. His chest was taped for a period of six weeks and rest was prescribed. The fractures had healed but the doctor stated there was some limitation of movement around the shoulder joint and some rigidity of muscles in that area. The doctor did not recall that his patient had ever complained of any abnormal sensation or lack of use in the right hand. He stated, however, that the plaintiff was difficult to understand and the record reflects that plaintiff's command of English is very limited.
A Dr. Diehr testifying on behalf of the defendant stated that he had examined plaintiff in November of 1948 and that any fractures that the plaintiff may have suffered had healed without displacement. He testified that the patient complained of pain when his arm was raised to the side but that there was no detectable reason for this. Dr. Diehr also stated that the plaintiff complained of sensations in his right hand but that no cause for any disturbance there could be found.
The charge made by Dr. Moore for his professional services was $260 and the hospital bill was $100. Counsel for the defendant waived proof of damages to plaintiff's automobile and admitted that the damages to it would be "between $350 and $400".
Defendant maintains that "inadequacy of damages standing alone in a tort case is insufficient grounds to justify a trial court in interfering with a jury's verdict."
Because the trial judge participates in the trial of the case and may note and study the attentiveness and apparent understanding with which the jury reacts to the evidence and procedure, that court is vested with considerable discretion in passing upon a motion for a new trial. After the trial court, from its vantage point, has viewed the verdict and has decided that a new trial should be granted appellate courts will not reverse the trial court in the absence of a showing that it has abused its discretion.
In Wormington v. City of Overland, Mo.App., 224 S.W.2d 590, 591, we stated: "At the threshold we are met with the hypothesis that the order of the trial court sustaining the motion for a new trial is presumptively correct. It is the settled law that a trial court has a wide discretion in passing on a motion for new trial, and where such a motion is sustained the appellate court will be liberal in upholding the trial court's action." De Maire v. Thompson, Mo.Sup., 222 S.W.2d 93; Wise v. Rubenstein, Mo.App., 24 S.W.2d 203; Hoefel v. Hammel, Mo.App., 228 S.W.2d 402; Tennison v. St. Louis-San Francisco Ry. Co., Mo.Sup., 228 S.W.2d 718.
There can be no doubt that the trial court had the discretionary power to grant one new trial under Sections 115 and 119, Laws of 1943, p. 353, Mo.R.S.A., Secs. 847.115 and 847.119; Supreme Court Rule 3.22. As stated in De Maire v. Thompson, supra: "That power, it is true, is discretionary only as to questions of fact and matters affecting the determination of issues of fact." [ 222 S.W.2d 97] The excessiveness or insufficiency of a verdict is a question of fact and when a new trial has been granted for either reason the trial court is in effect holding that the verdict is against the weight of the evidence. Aut v. St. Louis Public Service Co., 238 Mo.App. 1136, 194 S.W.2d 753; State ex rel. State Highway Comm. v. Liddle, Mo.App., 193 S.W.2d 625; Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 8 A.L.R.2d 710.
It is the defendant's contention that in a personal injury action founded in tort a new trial should not be granted because of the smallness of the verdict unless it is so small as to shock the understanding and to impress the court that the jury was influenced by passion or prejudice. It is true that abstract damages such as the pain and suffering of the plaintiff are not susceptible to accurate measurement and for that reason judgments for such damages are seldom reversed because of inadequacy. This, however, is no limitation upon the trial judge but upon appellate courts after the trial court has approved the verdict.
In this case certain of plaintiff's damages were subject to definite measurement. His doctor bill was $260; his hospital bill was $100; the damage to his car was $350. If the jury believed that he recovered fully from the injury after the fractures had knitted, it is evident that he still lost ten weeks earnings while he was wearing the clavicle brace and at $88 a week that would amount to $880. These items total $1,590.
The award of $1,000 was considerably less than the proven damages but perhaps not so grossly inadequate as to indicate bias and prejudice on the part of the jury. All inadequate verdicts do not necessarily indicate a prejudiced jury. As stated in Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, loc.cit. 340: "It is clear there is a vital distinction between mere excessiveness (or inadequacy) of an award, and such excessiveness (or inadequacy) as would indicate a verdict was the result of bias and prejudice; the former may be but an honest mistake of the jury, while the latter savors of misbehavior on the part of the jury. A fair, dispassionate and impartial consideration of the evidence by a jury is vital to a verdict's incipient validity. * * * The trial court in considering the size of the award may pass on the weight of the evidence."
The judge in the instant case passed upon the weight of the evidence and found the verdict inadequate. We cannot say that in so doing he acted arbitrarily or in abuse of the discretion with which he is vested, and it is the recommendation of the Commissioner that the order of the trial court sustaining the motion for a new trial be affirmed and the cause remanded.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The order of the circuit court sustaining the motion for a new trial is accordingly affirmed and the cause remanded.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.