Halverson v. Zimmerman

*609 Christianson, J. Plaintiff brought this action to recover damages against the defendants Zimmerman and Crosby for alleged malpractice in the diagnosis and treatment of plaintiff’s left shoulder and arm which had been injured in an automobile accident. The action was dismissed as to the defendant, Crosby. The jury returned a verdict against the defendant Zimmerman for $12,000. The defendant moved for a new trial on the grounds, among others: (1) Excessive damages appearing to be given under the influence of passion or prejudice; and (2) error in the admission of evidence prejudicial to the defendant. The trial court held that these two grounds were well founded and ordered a new trial, and the plaintiff appeals. In granting a new trial the trial judge filed a memorandum opinion wherein he considered at length the various questions presented on such motion. As regards the questions of excessive damages and alleged errors in admission of evidence the court said in part: “The statute (§ 7660, subd. 5, Supplement to 1913, Compiled Laws) sets forth as one of the causes for a new trial: ‘Excessive damages appearing to have been given under the influence of passion or prejudice. Where a new trial is asked for on this ground, and it appears that the passion and prejudice affected only the amount of damages allowed, and did not influence the finding of the jury on other issues in the case, the trial court, on hearing the motion, and the Supreme Court on appeal, shall have power to order a reduction of the verdict in lieu of a new trial; or to order that a new trial be had, unless the party in whose favor the verdict was given remit the excess of damages.’ “The plaintiff was sixty-one years of age, and according to the Carlisle tables of mortality, he had 12.06 years yet to live. “Dr. Platou testified that he found the plaintiff normal, except for the condition of his left shoulder, arm and hand. He also testified that the plaintiff had some use of his arm, but that ‘he will never get full use of it.’ Counsel for the plaintiff maintains that taking into account the plaintiff’s life expectancy, what he could earn during that time, *610 expenses paid out, and considering tbe pain and suffering, that the verdict is not excessive. . . . “On the question of an excessive verdict in this case, there can be no real difference of opinion. The important question then is, whether this court ought to reduce the verdict, or grant a new trial. “Under the statute quoted, the court'has that power. . . . “While our statute says that the court may reduce excessive verdicts, which are the result of passion or prejudice, the facts in this case would make it exceedingly difficult for this court to determine the amount of damages with any degree of fairness or justice. To this end, we must bear in mind that the plaintiff had been severely injured by an automobile, and that his shoulder was dislocated by that accident, and he suffered a great deal of pain as a result thereof. The negligence of the defendant is that of omission, and not of commission. ITis negligence is attributed to something he failed to do, perform or investigate. He did not inflict the injury. “It is quite apparent from the amount of the verdict in this ¿ase, that the jury allowed damages to the plaintiff for his entire injury, both that sustained in the automobile accident, and that claimed as a result of the failure of the defendant to properly care for the dislocated shoulder. “This case presents such a peculiar situation, and the result so out of proportion to the amounts generally allowed in cases where the party who inflicted the injury was held liable, that no court would feel like determining the amount that the plaintiff ought to recover, but would feel that the case ought to be submitted to another jury for a fair and impartial verdict. This is made so too, because of error assigned on the admission of the testimony, the admissibility of which, in the opinion of this court, is of a very doubtful character.” The testimony which the trial court in its memorandum opinion' refers 'to as being of a very “doubtful character” consisted of the testimony of medical experts adduced in behalf of the plaintiff. The-doctors were permitted to testify, over objection, “that it was negligent,” and “would be considered carelessness and negligence” to do-' what the evidence adduced by the plaintiff tended to show that the. defendant did or failed to' do as regards the treatment of plaintiff. •A. careful consideration' of the" questions thus presented leads us to" *611 the conclusion that the order of the trial court must be affirmed. While it "is true that under the laws of this state the trial court, and the Supreme Court on appeal, have power to order a reduction of the verdict in lieu of a new trial, where it appears “that the passion and prejudice affected only the amount of damages allowed and did not influence the finding of the jury on other issues in the case,” it is equally true that the question whether the error of a jury in allowing excessive damages, under the influence of passion or prejudice, may be corrected by a reduction of the verdict, or whether a new trial must be had, like every other question involved where a new trial is sought upon a discretionary ground, is one primarily for the determination of the trial court, and its rulings will be disturbed only when an abuse of discretion is clearly shown. Reid v. Ehr, 36 N. D. 552, 162 N. W. 903; Wagoner v. Bodal, 37 N. D. 594, 164 N. W. 147. The discretion vested in the trial court shoxdd be, and presumptively has been, exercised in the interest of justice. State v. Cray, 31 N. D. 67, 153 N. W. 425. The provision authorizing a reduction of the verdict in lieu of a new trial in cases where excessive damages appear to have been given under the influence of passion or prejudice was adopted by the legislative assembly in 1923. Laws 1923, chap. 334. Before the amendment, the courts had no authority to order a reduction of a verdict; if a verdict was tainted by passion or prejudice a new trial must be had in all cases. Carpenter v. Dickey, 26 N. D. 176, 143 N. W. 964; Waterman v. Minneapolis, St. P. & S. Ste. M. R. Co. 26 N. D. 540, 145 N. W. 19; Wagoner v. Bodal, 37 N. D. 594, 164 N. W. 147. The amendment, granting power to order a reduction of the verdict in lieu of a new trial, did not restrict, but rather enlarged, the discretion, of the trial court and made its discretion in that respect subject to the same rules, including the right of review in the Supreme Court, as its discretion on other questions involved in the determination of a motion for a new trial based upon a discretionary ground. In other words, whether excessive damages have been awarded under the influence of passion and prejudice and, if so, whether the ends of justice may be subserved by ordering a reduction of the verdict or whether a new' trial must be had are primarily questions for the trial court; the function of this court on appeal is merely to review the ruling of the trial court on such motion and such a review is limited to a determination of whether the *612 trial court abused its discretion in making tbe determination which it did and thereby effected an injustice. State v. Cray; Reid v. Ehr; and Wagoner v. Bodal, supra. It is clear from the record in this case, and especially the memorandum opinion prepared by the district court, that the trial judge gave careful consideration to the different questions involved, and after such consideration, it was the deliberate decision of the trial court that the ends of justice would be best subserved by a new trial. And we are wholly agreed that upon the record presented upon this appeal, it cannot be said that the district court abused the judicial discretion vested in it in making such determination. While we are not prepared to say that the rulings made by the trial court in permitting medical experts to testify that the acts, or failure to act, on part of the defendant was “negligence” and would be considered “carelessness and negligence,” would constitute reversible error in every case, or in this case, we are agreed that the questions were improper and in conflict with the decision of this court in Dolan v. O’Rourke, ante, 416, 217 N. W. 667. : “It is the province of the jury to determine the ultimate fact whether conduct was careless, reckless, or negligent, and this right may not be encroached upon by witnesses. It is the function of the witnesses to state evidentiary facts and the function of the jury to draw such conclusions as the facts warrant.” Dolan v. O’Rourke, supra; 3 Jones, Ev. 2d ed. § 1243, p. 2285. Order affirmed. Nuessle, Oh. J., and Birdzell, Burke, and Burr, JJ., concur.