Bodon v. Suhrmann
| Decision Date | 07 July 1958 |
| Docket Number | No. 8715,8715 |
| Citation | 8 Utah 2d 42,327 P.2d 826 |
| Parties | d 42 Harold W. BODON, by his guardian ad litem, Heinrich Bodon, Plaintiff and Appellant, v. Emil SUHRMANN, dba Suhrmann's South Temple Meat Company and Albert Noorda and Sam L. Guss dba Jordan Meat & Livestock Co., Defendants and Respondents. |
| Court | Utah Supreme Court |
Rawlings, Wallace, Roberts & Black, Cannon & Duffin, Salt Lake City, for appellant.
Grant Macfarlane, F. Robert Bayle, Robert Gordon, Wallace R. Lauchnor, Salt Lake City, for respondents.
This is a companion case to that of Schneider v. Suhrmann et al. 1 reported concurrently herewith which sustains a verdict and judgment against the defendant Suhrmann for negligence in connection with preparation and selling improperly processed mettwurst, a type of sausage. The facts and the issues as to liability are the same in this case and the determination in favor of the plaintiff is also controlling here. As to damages, a considerably different problem is presented in this case which we deem advisable to treat in this separate opinion.
Plaintiff Bodon, a young man of 20, is a brother of Mrs. Schneider and are the tainted mettwurst in the latter's home from which, according to the jury's finding, he contracted trichinosis as a result of the negligence of defendant Suhrmann, the retailer who sold it.
Plaintiff suffered some illness and financial loss for which the jury awarded him the munificent sum of $100. Plaintiff urges that this award is so paltry in comparison to any fair appraisal of his damage that the amount should be increased, or a new trial granted. There is implicit within the authority of the court to grant a new trial on the statutory ground of 'excessive or inadequate damages * * *' 2 the power to order a new trial conditionally: that is, to order that a new trial be granted unless the party adversely affected by the order agrees to a remittitur or an additur of the damages to an amount within proper limits as viewed by the court. A motion for a new trial based on such ground invokes the exercise of such prerogative of the trial court; and likewise of this court on appeal.
We know of no case in which this court has directed an increase of an award of damages, but we have held that the evidence required a finding of some damages. 3 There appears to be no persuasive reason for any differentiation between doing so and order a reduction because the verdict is excessive. 4 We state this not unmindful of the grounds stated as reasons therefor in the authorities referred to in the dissenting opinion.
It has long been established that where the award is in excess of damages shown by the evidence it will not be permitted to stand. In such instances the courts exercise their inherent supervisory powers over jury verdicts, which derive from their duty to see that justice is done; and make corrective orders necessary for that purpose. This is done by the trial court, 5 or upon its failure to do so, by this court on appeal. 6
We are not here concerned with any question as to whether the disparity in the verdict is so gross as to indicate that the whole verdict is so suffused with passion and prejudice that it should be entirely set aside. The contention here is that the verdict is outside the limits of what appears justifiable under the evidence to the extent that it should not be permitted to stand. In such instances the remedy is to order a modification of the verdict to bring it within the evidence; and the adverse party is given the choice of accepting it or taking a new trial. This alternative does not infring upon the right of trial by jury, because the party favored by the order has had his trial by jury and is seeking relief from the inadequacy of the jury verdict, while the party adversely affected always can choose the new trial if he so desires. 7
The practical value of such procedure and the reason it should apply either to decreasing or to increasing a verdict are illustrated as follows:
Example 1: P sues D for $200 for destruction of two horses; the evidence shows that of plaintiff's two horses, valued at $100 each, defendant destroyed only one. The jury, in disregard of the evidence and the instructions, nevertheless renders a verdict of $200. There is no foundation for the verdict in the evidence, and it should not be permitted to stand. Yet it would be futile to go through the formality of granting and having a new trial to arrive at the correct judgment of $100. In order to avoid such futility of procedure, courts have adopted the sensible expedient of ordering the judgment reduced to the amount justified by the evidence (in such case $100), which plaintiff is allowed to accept, or take a new trial.
Example 2: Same facts as example 1, except the evidence shows that the defendant destroyed both horses. The jury, in disregard of the evidence and the instructions, renders a verdict for only $100. For the same reason as stated in example 1 above, the court should order the verdict increased to the correct amount, $200, which the defendant should be allowed to accept, or take a new trial.
That the same rule as to setting aside or modifying a verdict for excessiveness of damages should also apply to inadequacy is indicated in the language of the recent case of Paul v. Kirkendall. 8 This court, through Chief Justice McDonough, said:
'If inadequacy or excessiveness of the verdict * * * shows a disregard * * * of the evidence or the instructions * * * as to satisfy the court that the verdict was rendered under such disregard or misapprehension of the evidence or influence of passion or prejudice, then the court may exercise its discretion in the interest of justice and grant a new trial',
citing Saltas v. Affleck, 9 wherein tacit approval was given to an order of the trial court directing that an award of $800 for the death of plaintiff's son be increased to $2,400, which the defendant was directed to accept or take a new trial.
We revert to the pivotal question: Under the rules above stated, is the award of $100 so small, in comparison to the damages which would necessarily be found from any reasonable appraisal of the evidence, that this court should grant the plaintiff some affirmative relief with respect to it?
If we adopted plaintiff's view of the evidence, particularly of his subjective symptoms, there is no doubt that very substantial damages would be justified. The difficulty with his position is that the jury took the view that his illness was of no great consequence, and under the rule of review, we are obliged to survey the evidence in the light most favorable to their finding. 10 Nevertheless, the facts which were indisputably established must be considered.
Mr. Bodon was a vigorous young man inclined to athletics. His resistance to the trichinosis was undoubtedly greater than the average person's would be, and consequently his suffering less. His doctor characterized his case as 'moderate.' He was not hospitalized but had to remain home and abed for about a week at the onset of the disease. He testified that when he returned to work, (at a bookbinding company) he had to request duties which required title physical exertion for a time. It was shown that within a few weeks he resumed his athletic activities, swimming and soccer, although he complained of some weakness in his arms and legs in doing so. The doctor testified that upon a checkup nine months after the illness he was almost symptom free; and further, that although it was then too early to be positive about any permanent ill effects, in such moderate cases usually none are left. In addition to the above basic facts which must be reckoned with, he lost $55 for the week's wages and $14 for his doctor bill, a total of $69 out-of-pocket damages. Of the $100 awarded him this leaves only $31 as general damages for the pain, distress and inconvenience of having the disease.
We affirm the responsibility of this court to be indulgent toward the verdict of the jury, and not to disturb it so long as it is within the bounds of reason, in accordance with the principles set forth in the companion case of Schneider v. Suhrmann; 11 and also that it is primarily the prerogative and the duty of the trial court to pass upon the adequacy of the verdict and to order any necessary modification thereof. Nevertheless, when the verdict is outside the limits of any reasonable appraisal of damages as shown by the evidence, it should not be permitted to stand, and if the trial court fails to rectify it, we are obliged to make the correction on appeal. 12
Our survey of the evidence impels the conclusion that the $100 awarded is so small as to come within the above rule, and that it should either be increased or vacated entirely. It is ordered that upon remand to the district court, the judgment be increased to $500, and that the defendant have 10 days in which to agree to accept such modification, and if he fails to do so, a new trial is granted. Costs to plaintiff.
I am of the opinion that the order granting a new trial unless defendant agrees to the increased judgment is proper.
It is observed by Mr. Justice CROCKETT that 'We know of no case in which this court has directed an increase of an award of damages, but * * * there appears to be no persuasive reason for any differentiation between doing so and ordering a reduction because the verdict is excessive.' In his dissenting opinion Mr. Justice HENRIOD is in agreement with Mr. Justice CROCKETT as to no case having increased an award of damages but disagrees that there is no persuasive reason for differentiation between decreasing and increasing the amount of the verdict.
In this connection it should be observed that our statutes from the Revised Statutes of 1898 to and including Utah Code Annotated 1943 did not authorize granting a new trial for inadequate damages. Subdiv...
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