Wagoner v. Bodal

Christianson, J. Plaintiff brought this action to recover damages for certain personal injuries alleged to have been sustained by his falling into an open hatchway in the sidewalk at the side of defendant’s general store in the village of Maxbass, in Bottineau county. The complaint avers, and the evidence shows, that plaintiff came out of the store building through a side door, after dark, one evening about the middle of August, 1909, and ran into a push cart standing on the sidewalk, then against the open hatchway, and fell to the bottom, a distance of from éi to feet. Plaintiff claimed that he sustained certain injuries about the head, face, and neck by such fall, and asked damages [595] in the sum of $5,000. The defendant interposed an answer, wherein he admitted that he was the owner of the building and operated a general store therein. The answer admitted the existence of a hatchway leading to the basement and forming part of defendant’s store, and that on the evening when the accident occurred, plaintiff was in the store building by defendant’s permission for the purpose of transacting business there. But the answer denies that said hatchway had been left open, or that plaintiff had been injured or damaged as alleged in the complaint, or at all. The action was tried to a jury upon the issues framed by the pleadings. The court submitted to the jury only one question; namely, the amount of damages. The jury returned a verdict in plaintiff’s favor for $800. Judgment was entered upon the verdict. The defendant thereafter moved for a new trial on.the grounds: (1) Excessive damages appearing to have been given under the influence of passion and prejudice; (2) insufficiency of the evidence to justify the verdict; and (3) that the verdict is against law. The trial court made an order granting a new trial, unless the plaintiff should consent to a reduction of the verdict to $350, and plaintiff has appealed from this order. Under the holdings of this court, a trial court is not authorized to direct a remission of a portion of a verdict in lieu of a new trial. If a jury awards excessive damages under the influence of passion or prejudice, the verdict is vitiated, and a new trial must be ordered. 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. Nor is a trial court authorized to grant a new trial merely because it deems the damages awarded by the jury to be excessive. It is only when, in view of all the circumstances, the trial court becomes satisfied that the jury was influenced by passion or prejudice in its deliberations, and as a result thereof awarded excessive damages. The rules of law governing both trial and appellate courts in the consideration of motions for a new trial based upon this and other discretionary grounds have been so fully stated in many recent decisions of this court that it is unnecessary to enter into an extended discussion thereof, and we shall content .ourselves by citing the decisions announcing the rules: Aylmer v. Adams, 30 N. D. 514, 153 N. W. 419; Skaar v. Eppeland, [596] 35 N. D. 116, 159 N. W. 707; First International Bank v. Davidson, 36 N. D. 1, 161 N. W. 281; Reid v. Ehr, 36 N. D. 552, 162 N. W. 903. In its memorandum decision, the trial court said: “The defendant’s motion for a new trial strikes at the amount of damages allowed by the jury, and charges that the damages allowed are excessive and must have been given under the influence of passion or prejudice, and that the evidence does not justify the verdict of the jury herein. . . . The jury allowed him (plaintiff) $800 and this amount must have been allowed by the jury for the pain and suffering, as the question of the value of any lost time or the necessary expenses for medical treatment and the necessaries was not submitted to the jury, — there being no proof presented as to the value of any lost time, or that any medical services were rendered, or the value of medical services, or the amount and character of any medicines or surgical appliances furnished or used. The sole question presented to this court, therefore, on a motion for new trial, is whether or not the damages allowed' by the jury are excessive to such a degree as to show passion or prejudice on the part of the jury. . . . A careful review of the testimony convinces me that the amount of damages allowed by the jury is excessive under the evidence in this case. There is testimony that the plaintiff experienced pain and suffering, but in the very nature of the case the testimony as to pain and suffering is confined largely to his own testimony. During the trial of the case it appeared that plaintiff had employed a physician, but there was no attempt to furnish the testimony of this physician to show the extent of his injuries. It is true plaintiff testified that he had been unable to work at times, but the extent of this- incapacity is not shown; for all we know it may have been very trifling, and his own testimony showing the amount and the character of the work he did since shows that the injuries could not have been very serious. It seems to me, therefore, that the amount allowed by the jury is excessive. It is true that a mere difference of opinion as to the amount which should be allowed for damages will not of itself justify the interference by the court with the verdict of the jury. The matter is primarily a matter for the jury, and unless the amount is grossly excessive should not -be disturbed. I believe the jury would have gone to the extreme in allowing $350.” It will be noted from the above, that the trial judge was of the [597] opinion that the jury, tinder the influence of passion and prejudice, returned a verdict for excessive damages. After a careful consideration of the evidence, and of all the facts and circumstances in the case known to the trial judge as a result of the trial, he believed the verdict was unjust and unrighteous to such a degree that the jury must have been actuated by passion and prejudice, rather than by reason, in reaching its determination. As we have already indicated, the ground upon which a new trial may be granted in cases of this kind, if at all, is not properly speaking the amount at which the damages are placed in the verdict, but the passion or prejudice which prompted the verdict. The power to grant new' trials upon this ground, and the duty to do so, is expressly granted and imposed upon trial courts by our statutes. Comp. Laws 1913, §§ 7660/7665. See also Reid v. Ehr, 36 N. D. 552, 162 N. W. 903. This power and duty exist whenever a trial court is satisfied that a verdict was dictated by passion or prejudice, regardless of whether the verdict is based upon uncontradicted or conflicting testimony. It exists even in cases where exemplary damages are recoverable. Spelling, New Tr. & App. Pr. § 231. It is elementary that the trial court, who sees and hears the witnesses and parties, and is familiar with every incident which occurred during the trial, is vested with a wide discretion in determining whether excessive damages appear to have been given under the influence of passion or prejudice. The Constitution of this state vests in the trial courts original jurisdiction to determine questions arising in ordinary litigation, and grants to this court appellate jurisdiction only. N. D. Const. §§ 86, 103. It is for the trial court to determine whether a verdict was dictated by passion or prejudice. In determining this question the trial judge manifestly occupies a position of peculiar advantage, — not possessed by the members of this court. Hence, the reason for the wide discretion. The appellate court does not determine whether a new trial should be had. Its inquiry is limited to whether the trial court by its determination manifestly abused its discretion and effected an injustice. As a new trial merely affords the parties an opportunity to submit the questions to another jury, it is rarely, indeed, that an appellate court is justified in preventing such new trial. [598] A perusal of the entire record leads us to the conclusion that we cannot say that the trial court, who saw the witnesses and parties, heard their testimony, and observed their demeanor, abused his discretion in granting a new trial. As already indicated, the trial judge was without authority to require a remission in lieu of a new trial. If the verdict was prompted by passion and prejudice, it was his duty to set it aside and order a new trial. The alternative provision, however, was rather error in favor of the plaintiff than against him, and the only portion of the order really involved on this appeal is that granting a new trial. And for the reasons already indicated, we do not feel justified in reversing that part of the order. It follows from what has been said that the order appealed from, in so far as it grants a new trial, must be affirmed. The costs of the action will abide the final result therein. But inasmuch as the order appealed from was in part erroneous, and is affirmed only in so far as it grants a new trial, neither party will recover costs on this appeal.