Malpica v. Cannery Supply Co.

JOHNS, J. In legal effect the defendant now admits its liability, but contends there is no testimony to sustain a verdict against it for $12,000. [246] On motion of the defendant, the plaintiff voluntarily submitted to a physical examination, and X-rays of his injuries were taken, photographs of which were introduced in evidence. The defendant did not offer any expert testimony, and there was only one surg’eon called as a witness for the plaintiff. He testified that his examination showed that the plaintiff had a com-minuted fracture of both the ulna .and the radius in his right arm; that the bones were crooked and overlapped, and movement of the wrist and hand was limited ; that there was more or less stiffness in the wrist and tendons; that his hand was injured; that he could not do any work which would require much motion of the arm; that Ms injuries were permanent; and that the arm would never become any stronger or more pliable. The plaintiff was called as a witness in Ms own behalf, was seen by the jury, and testified that he lost consciousness when he fell, was taken to the hospital, and remained there for fifteen days, during which time he suffered great pain; that he is now unable to bend Ms wrist or close his hand; that previous to his employment in Alaska he had worked at different jobs as a laborer, receiving $3.75 per day, and overtime; and that he had not been able to do any work recently, could not do any heavy work and at the time of the trial was employed in washing dishes. Pedro Castro, who was working on the same platform, testified that the plaintiff was lying flat on the floor; that his arm was broken, he was cut in three places on the face and in,two places on the arm; and that the bones were protruding through the flesh. The defendant requested numerous instructions, which were given by the court, and the theory of its [247] case was fully and fairly submitted to the jury. Among others, the court gave the following charge: “In arriving at your verdict in this cause, you should determine the same solely from the evidence and instructions given you, and should not be influenced by any feelings of sympathy or prejudice, either in favor of or against either of the parties to this action.” The defendant cites and relies upon Hoag v. Washington-Oregon Corporation, 75 Or. 588 (144 Pac. 574, 147 Pac. 756), for the authority of this court to reduce a verdict and to render a judgment here for the amount that the plaintiff is fairly and justly entitled to receive. The Hoag case was decided by an opinion of four members of this court, with vigorous dissenting opinions by the other three members, as to the constitutional right of the court to reduce the verdict of a jury. Although it is true that by the majority opinion the verdict of $30,000 in that case was set aside and a judgment was here entered for the plaintiff for $14,000, the majority opinion was expressly founded upon the fact that there was prejudicial eri’or in the giving of instructions and that the verdict was based upon such faulty charge. In the instant case there were no erroneous instructions, and the only exception was to the amount of the verdict. 1. Article VII, Section 3 of the Constitution as amended in 1910 (Laws 1911, p. 7), provides: “In actions at law, where the value in controversy exceeds twenty dollars, the right of trial by jury shall be reserved, and no fact tried by a jury shall be otherwise re-examined by any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.” The purpose of this amendment was to prohibit courts from setting aside or modifying judgments [248] founded upon verdicts of juries, where there is no prejudicial error in the' record. In this case the jury was properly instructed, and there is no assignment of error except as to the amount of the verdict. Under such circumstances, it was for the jury only to fix the amount of plaintiff’s damages, which it did by a unanimous verdict. 2. The Circuit Court was of the opinion that the plaintiff should not recover more than $2,000, and it is probable that other juries might return a verdict, for much less than $12,000; but the fact remains that the plaintiff was injured, that his disability is permanent, and that in addition to his pain and suffering the use of his arm is greatly impaired. There is no fixed standard as to the amount that the plaintiff should recover for his injuries. That is a question of fact for the jury, and different juries would return different verdicts under the same state of facts. The record shows that the defendant had a fair trial, and its only exception is to the amount of the verdict. There is nothing in the record to indicate any passion or prejudice. Although in the opinion of this court the amount of damages awarded might be deemed excessive, we cannot affirmatively say that there is no evidence to support it. Under the record in the case, this court is powerless to grant relief. The judgment is affirmed. Affirmed. McBride, C. J., and Bean and Bennett, JJ., concur.