There are four issues presented on this appeal:
1. Did the trial court err in failing to find that appellant was negligent in operating her vehicle as a matter of law?
2. Did the trial court err in submitting an ultimate-fact verdict rather than a detailed verdict?
3. Did the trial court err in holding excessive the jury's $6,500 damage award for personal injuries, and in reducing that award to $3,500 under the Powers rule?
4. Did the trial court err in striking the damage award of $1,500 for nursing and domestic services?
Mrs. Moritz's Negligence.
The case was submitted to the jury on an ultimate-fact rather than a detailed form of special verdict as respondents desired. The trial court found, as a matter of law, that Erickson had operated his vehicle in a negligent manner prior to the accident. The trial court refused to find Mrs. Moritz negligent as a matter of law. Respondents contend that the court erred in failing to find appellant negligent as a matter of law in regard to lookout and turning. In Zeitlow v. Western Casualty & Surety Co.
"We do not agree with appellants that error was thus committed but, if there was, the error would be harmless, for the jury answered the question as appellants wished the court to answer it. And if the court had answered as appellants requested, the jury would still have to make the comparison of causal negligence between the parties."
In the present case, it could not be said, after viewing the evidence as a whole, that Mrs. Moritz was negligent in any respect as a matter of law. However, it is not necessary to
Use of Ultimate-Fact Verdict.
Respondents maintain that they were prejudiced by the finding of negligence on Erickson's part since the jury was unduly influenced by this determination when apportioning negligence between the parties. It is true, as the court recognized in Niedbalski v. Cuchna that:
". . . because of respect for the trial judge's experience and knowledge of the law, and confidence in his impartiality, a jury may give more weight to a finding made by the judge than to a similar finding which it makes for itself. It is possible for the same reason that when it reaches the comparison question, it may give disproportionally greater importance to negligence found by the judge than to negligence found by the jury. We suppose there might be cases where on review it so clearly appears from the circumstances that this must have happened, that a new trial should be had in the interest of justice."
But the court continued:
"We decline, however, to adopt a rule based on a premise that a jury attributes disproportionate importance to negligence found by the judge in all, or a substantial number of the cases in which findings are made as a matter of law."
That Erickson was found to be 80 percent negligent does not of itself establish that the jury was swayed. It is not at all surprising that the one who runs into the rear of another automobile is found to be much more at fault than the other driver. To conclude that a jury has placed improper
It is true that the jury was not instructed with respect to the comparison question "cautioning the jury not to give greater or lesser importance or weight to the finding of the court that a party was negligent than to a similar finding made by the jury."
Respondents assert that when one party is found negligent as a matter of law while the other is not, the negligent party is prejudiced unless the case is submitted to the jury on the detailed form of special verdict. Respondents contend that otherwise the jury could be led to believe that the party is necessarily negligent in all respects—i.e., lookout, speed, management and control, etc., while in fact there is no negligence in regard to each, and that this thus influences their negligence comparison. No authority is cited to support this proposition. If this contention is correct, the use of the omnibus form of verdict will be greatly restricted.
Although the trial court found Erickson negligent as a matter of law it clearly limited that finding to Erickson's speed and further instructed the jury on other aspects of Erickson's possible negligence, namely, lookout, management and control. Under these circumstances, respondents were not prejudiced by the ultimate-fact form of special verdict.
Recovery for Personal Injuries.
The jury awarded Mrs. Moritz $6,500 for her personal injuries. The trial judge, after ruling out the possibility
This is another instance similar to those in which we have been asked very recently
The crucial question to be first resolved is whether the trial court here erred in finding that the $6,500 award for plaintiff's personal injuries was excessive. Several criteria have been established to guide a trial court's review of a jury verdict.
1. "The problem of achieving fairness in assessing damages for personal injury is fraught with difficulty. Theoretical nicety is impossible. Under our judicial system, we rely primarily upon the good sense of jurors to determine the amount of money which will compensate an individual
2. "In actions sounding in damages merely, where the law furnishes no legal rule for measuring them, the amount to be awarded rests largely in the discretion of the jury, and with their verdict the courts are reluctant to interfere."
3. "A jury may mistakenly assume (without supporting evidence) that there have been, or will be certain effects from an injury or fix compensation for sufficiently proved effects of injury at a figure which is beyond the range of reasonably debatable amounts. In a case where it is clear to the court that the amount awarded must necessarily reflect an allowance for the effects of injury not sufficiently proved or reflect a rate of compensation which is beyond reason, the court will declare the damages excessive. Where the question is a close one, it should be resolved in favor of the verdict."
4. "In considering whether the jury's appraisal of damages for pain, suffering, and disability is excessive, we must of course view the evidence in the light most favorable to plaintiff."
"The trial court, however, is not required to search out one or several isolated pieces of testimony, which standing alone might sustain the damages found by the jury, but rather must review all the evidence bearing on damages and then, viewed reasonably as a whole, consider the same in the light most favorable to the plaintiff."
6. ". . . a comparison with other verdicts at best can only be an imperfect analogy affording some guidelines to the solution but not necessarily determining the result."
In addition to the above rules for reviewing personal-injury verdicts there is a further rule that is applied where the supreme court is asked to review a determination made by a trial court that a verdict is excessive. That rule is:
"Where a trial judge has reviewed all of the evidence and has found a jury verdict awarding damages to be excessive and has fixed a reduced amount therefor, and has determined that there should be a new trial on damages unless the plaintiff takes his option for a judgment on the reduced amount, this court will reverse his directions `only if we find an abuse of discretion on the part of the trial court.'"
This rule was amplified in Boodry v. Byrne, where it was stated:
"On appeal from a determination by the trial court that the found damages were excessive, this court will not find an abuse of discretion if there exists a reasonable basis for the trial court's determination after resolving any direct conflicts in the testimony in favor of plaintiff."
"Because of the advantage of personal observation enjoyed by the trial judge, the rule has been evolved that where a trial court determines that damages are excessive, and orders a new trial for that reason, his order will be reversed and directions given by this court to enter judgment on the verdict only if we find an abuse of discretion on the part of the trial court."
A trial court reviewing a personal-injury jury verdict and finding such a verdict excessive should state its reasons for its determination. In the absence of such an analysis this court on appeal must, as here, review the entire record as a matter of first impression and ascertain whether, in its judgment, the verdict is excessive. In so doing, this court, of course, applies the same criteria for determining whether or not a verdict is excessive as govern review of the verdict by the trial court in the first instance.
At the time of the trial, Mrs. Moritz was a widow, about sixty-eight years old, and had a life expectancy of 9.47 years. She was thrown against the left side of her automobile. She was able to step out of her car, talk to Erickson and then drive her car home unassisted. That night she noticed soreness in her neck, back, and left leg. She saw her physician, Dr. Milsen, for the first time two days later, and complained of pain in her neck, head, back, chest, and left leg. She
As a result of his examinations, Dr. Milsen observed objective symptoms of ecchymosis (superficial bleeding) of the left hip, and muscle spasms in the lower lumbar area, over the cervical spine, and in the back of the neck. The X rays taken in December of 1960, disclosed that Mrs. Moritz had an arthritic condition and that the accident had caused a decrease of a normal cervical lordosis (flattening out of the normal forward curve of the neck). Both doctors testified that the arthritis was a pre-existing condition and that the accident did not cause any boney change. The doctors concluded from their examination and Mrs. Moritz's complaints that the accident aggravated or "lit up" the pre-existing arthritic condition.
On July 11, 1963, on her last trip to Dr. Milsen before the trial, Mrs. Moritz complained of pain in the back, neck, head, left knee, and tenderness in the back. She claimed that her movements were restricted, particularly bending. Any limitation of motion was not specifically described. Dr. Milsen found some spasm in the lumbar area and the cervical spine.
Dr. Freedman also took X rays in July of 1963, the only other time he examined Mrs. Moritz. These X rays showed that the neck curve was practically normal and that there had been no marked change in the arthritic condition since the last X rays were taken in December of 1960. Dr. Freedman testified that at the time of the second X ray
Prior to the accident, Mrs. Moritz had no back problems and was able to do all her own housework and work a garden. She testified that after the collision she was unable to do all of her housework and it is undisputed that she hired two women to help her. However, the evidence is unclear as to exactly how much Mrs. Moritz was curtailed in her activity and as to what phase of the housework she was not able to perform. Outside of a cloth belt which she wore six weeks before discarding because she "was starting to get better," the only other treatment prescribed by either doctor was rest, heat, and medication. She was never placed in traction, never required physical therapy, and outside of her stint in the hospital, was not confined to bed. She did not suffer any fractures, or severe cuts.
The evidence taken as a whole and looked at most favorably to the plaintiff, does not support the jury verdict of $6,500 for the plaintiff's personal injuries.
In essence the evidence establishes that the plaintiff, sixty-eight years of age, complains three years after the accident of a worsening of a pre-existing arthritic condition; that there has been no boney change in this period; that despite the "flare-up" of arthritis, her condition is still not as severe as is normal in someone her age; that there was a lack of
The verdict is one of those relatively rare cases where the sum awarded by the jury is "beyond the range of reasonable amounts" and is excessive. Although the verdict is excessive the $3,500 amount fixed as reasonable by the trial court is within the range of reasonable amounts and his finding to this effect must be affirmed.
Recovery for Nursing and Domestic Services.
The jury awarded appellant $1,500 for nursing and domestic services she required as a result of the accident. On respondents' motion after verdict, the trial court struck this answer and disallowed any recovery whatsoever.
There is no question but that one who is injured and requires domestic and nursing services is entitled to recover for the same "what is customarily charged for similar work"
On the record Mrs. Moritz did not sustain her burden of proof on this item of damages. There is absolutely no evidence of the customary charges for this kind of domestic work. Ann Bennett was not even called to testify, and Rose Kroll, who did testify, was never asked about the usual going rate for her services.
Even assuming that the customary charge was proved, the evidence was still insufficient to show the amount of time actually put in by the two women. Ann Bennett worked for Mrs. Moritz during a seven-month period. When asked how many days Ann Bennett had worked, appellant replied
Rose Kroll worked for Mrs. Moritz for about two years. Appellant said that she "comes and goes." Rose Kroll, herself, claimed that she worked "[o]ff and on . . . sometimes twice a week, three times a week, you know. Whenever she needed me, something she couldn't do." Thus there was a complete failure to give even a reasonable estimate of the amount of time the two women actually worked for Mrs. Moritz.
The testimony regarding the specific tasks the two women performed for Mrs. Moritz was even more vague. There was conflict in the evidence as to how much each woman had been paid. No proof of a total payment was introduced. Rose Kroll said that she received "six, five, seven dollars" while Mrs. Moritz claimed she was paid ten or fifteen dollars a week.
While appellant clearly was entitled to some compensation for the household services she required as a result of the accident, the record demonstrates that the damages were not proved with any reasonable certainty. When damages are susceptible of precise proof or of estimation by someone having knowledge, the proof must be adduced in order to sustain the burden of showing the expenses.
By the Court.—Judgment modified to give plaintiff an option to receive a new trial on all items of damages, or within twenty days of remittitur to take judgment in the sum fixed in the judgment from which this appeal was taken. Judgment, as modified, affirmed. No costs to be taxed on this appeal.
GORDON, J. (dissenting).
I would uphold the jury's verdict insofar as it evaluated the plaintiff's personal injuries at $6,500.
There was evidence presented by the plaintiff and by two qualified medical witnesses. Their testimony contained proof of significant pain and disability and warranted the assessment as to damages made by the jury. The proof showed that as a result of the accident the plaintiff sustained the following: Backache, headache, dizziness, chest pain, leg pain, and aggravation of arthritis. She was hospitalized for a week.
I am authorized to state that Mr. Justice FAIRCHILD joins in this dissent.