Sykes v. Brown.*

• Decision Date: 22 June 1931
• Court: Virginia Supreme Court
• Parties: SYKES. v. BROWN.*

159 S.E. 202

SYKES.

v.BROWN.^*

Supreme Court of Appeals of Virginia.

June 22, 1931.

PRENTIS, C. J„ and EPES, J., dissenting.

Error to Circuit Court, Surry County.

Action by Jane Brown against D. H. Sykes. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Argued before PRENTIS, C. J., and CAMPBELL, EPES, HUDGINS, and BROWNING, JJ.

Plummer & Bohannan and Willis W. Bohannan, all of Petersburg, for plaintiff in error.

W. Stanley Burt, of Claremont, for defendant in error.

CAMPBELL, J.

Jane Brown, a colored citizen of Surry county, brought this action against D. H. Sykes to recover damages for personal injuries inflicted on her by the defendant by striking her with an automobile, while she was a traveler upon the highway. There was a trial by a jury which resulted in a verdict for the defendant. The motion of the plaintiff to set aside the verdict was sustained by the trial court, on the ground that "the verdict was without proper evidence to sustain it." Pursuant to section 6251 of the Code, judgment on the merits was pronounced in favor of the plaintiff and a jury was impaneled to assess plaintiff's damages. The trial on the question of damages resulted in a verdict in favor of the plaintiff in the sum of $2,000, and thereupon the court entered up judgment on the verdict.

In view of our ultimate conclusion, we deem it unnecessary to set forth the facts shown or to enter upon a detailed discussion of the alleged conflict in the evidence. While it is true that the enactment of section 6251 conferred enlarged powers upon the trial courts, it is well settled by the decisions of this court that trial courts have no greater power over verdicts than they had before the enactment of the statute.

In Flowers v. Virginian Ry. Co., 135 Va. 367, 116 S. E. 672, it is held that the statute was not designed to materially change or affect the control of trial courts over the verdict of the jury.

It is also well settled that a trial court is not warranted in setting aside a verdict merely because, the court, if upon the jury, would have rendered a different verdict. The action of the trial court must proceed from a firm conviction that the verdict is plainly wrong or without evidence to support it. The main purpose of section 6251 is to put an end to an action, if and when the ends of justice may be attained, and put the losing party to his writ of error. Clark v. Hugo, 130 Va. 99, 107 S. E. 730.

Under the provisions of section 6365 of the Code, similar power is conferred on this court. But the power thus conferred by section 6365 will not be arbitrarily exercised when in the opinion of this court the ends of justice demand that instead of entering final judgment a trial de novo should be had.

In the petition for a writ of error prepared by eminent counsel, defendant prays that this court render final judgment, in his favor, on the verdict in the first trial, "or else that the case be remanded for a trial de novo."

The rule laid down by Kelly, P., in Morris & Co. v. Alvis, 130 Va. 448, 107 S. E. 064, 609, is, we think, applicable to the case at bar. There it is said:

" * * * The case was tried below, and was originally presented to this court in such a way as to indicate that both parties probably regarded the question as one within the province of the jury. We approve the policy and purpose of sections 6251 and 6365 of the Code, looking to a speedy determination of litigation and the rendition of a final judgment wherever it is clear, that upon the facts before it, the court can by such order attain the ends of justice. In this instance, we are not sure that these ends.could be attained by a final order, but, viewing the case as a whole, we are of opinion that it should be remanded for a new trial, and an order to that effect will accordingly be entered."

In view of our conclusion that a new trial should be had, and anticipating that some of the questions arising in this case will be presented in the future, we deem it essential to dispose of them.

The declaration alleges that, as a result of the injuries inflicted upon the plaintiff by the defendant, plaintiff was compelled to enter a hospital in order to have her injuries treated; that the cost of the medical treatment received amounted to a considerable sum of money; and that the same was a proper element of damages. To prove the expenses incurred, Dr. Creecy was examined as a witness, and, over the objection of defendant, testified as follows:

"Q. Are you connected with the Buxton Hospital in any way?

"A. Yes, sir. * * *

"Q. Do you know, Doctor, or have you any memorandum from which you can tell what the hospital expenses of Jane Brown were when she was over there?

"A. No, sir, I haven't that with me.

"Q. Would you be able to say, if you were shown a statement, whether or not the statement would be correct?

"A. I would be able to say whether it was approximately correct, just from my knowledge of what the daily cost of caring for a patient is. I have no means of saying that it is absolutely correct.

'•Q. I show you this paper, which purports to be a statement of the expense account of Jane Brown in the Buxton Hospital, together with the amounts paid on it, and ask you if that is a correct statement? * * *

"Q. Please state, then, Doctor, whether or not from your knowledge of the charges over there for similar services, you would say that that is at least an approximate statement?

"A. (Examining) Yes, sir, this is approximately correct.

"By the Court:

"Q. What is the amount of it, Doctor? "A. The total amount is $404.65.

"By Mr. Burt:

"Q. Does that account show that any portion of that amount of money has been paid? * * *

"The Court: Yes.

"A. This statement shows that a part of the bill has been paid, and that there is a balance due.

"Q. Of how much?

"A. $64.00."

The objection should have been sustained. The witness did not undertake to state the correct amount due the hospital, or that same was paid by the plaintiff, or that she was primarily liable for the bill. From his general knowledge of hospital expenses he merely approximated the expenses incurred. Defendant was entitled to know the exact amount of the surgical and hospital bill, who paid same or who was liable therefor. The objection should have been sustained for the further reason that the evidence was secondary. The paper introduced as a statement of the expense account only purported to be a correct statement. The further testimony of the witness divulged that he had examined the books of the hospital. If the account was kept in a book, "the book...