Cox v. Charles Wright Academy, Inc.

• Decision Date: 05 January 1967
• Docket Number: No. 38458,38458
• Citation: 422 P.2d 515,70 Wn.2d 173
• Court: Washington Supreme Court
• Parties: Joseph COX, Jr., Respondent, v. CHARLES WRIGHT ACADEMY, INC.; Bernard L. Ford and Jane Doe Ford, his wife, Appellants.

Page 173

70 Wn.2d 173

422 P.2d 515

Joseph COX, Jr., Respondent, v. CHARLES WRIGHT ACADEMY, INC.; Bernard L. Ford and Jane Doe Ford, his wife, Appellants.

No. 38458.

Supreme Court of Washington, Department 1.

Jan. 5, 1967.

Reed, McClure & Moceri, Thomas W. Huber, Seattle, for appellants.

Burkey, Marsico & Rovai, Robert L. Rovai, Tacoma, for respondent.

HALE, Judge.

Had Joseph Cox, Jr., plaintiff, not been involved in four automobile accidents within a period of four years, the nature and extent of his injuries from the accident of May 14, 1964, would have been easier for the jury and court to ascertain. Believing that the jury had awarded special damages only and ignored general damages for pain and suffering, the trial court granted additur of $2,000 to the $340 verdict as an alternative to a new trial and defendants appeal.

Plaintiff, a young man 21 years of age, was seated behind the steering wheel of his 1957 DeSoto automobile parked on North 27th and Warner streets in Tacoma, May 14, 1964. The Charles Wright Academy school bus, proceeding north on Warner, struck the car on the left rear bumper and fender. Evidence described the impact as varying in force from slight and scraping to that of a sharp, direct blow sufficient to move the parked car several feet forward. Plaintiff testified that the impact, coming as it did unexpectedly, immediately produced muscle spasm, soreness and pain in his back, and that he went to his doctor the next day for examination and treatment of injuries caused by the collision.

Injuries from two prior accidents, each requiring medical care, tended to obscure plaintiff's damages. On August 3, 1960, plaintiff injured his back when an automobile in which he was a passenger left the road. He saw his doctor two or three times. X rays, taken at his doctor's order, showed no bone injuries. Thereafter, plaintiff took chiropractic treatment once or twice a month for about a year following that accident. He engaged in vigorous physical activities following the accident, including weight lifting, pitching baseball, and heavy manual labor.

November 10, 1963, while seated in a parked car, he suffered severe injuries in a second accident when the car was struck violently from the rear by another automobile. Force of the impact drove his car forward 50 or 60 feet up over a sidewalk into a telephone pole. The accident sent plaintiff to the hospital for 10 days, during which time his doctor kept him in traction for 7 days. His doctor ordered him to discontinue playing baseball and to play no golf or other sports, instructions still in force when the present accident occurred May 14, 1964.

Treatment for injuries of the November 10, 1963, accident included wearing a Taylor brace which was replaced later by a lumbosacral belt, daily physical therapy for 2 months reduced to 3 times weekly thereafter but continuing to the third and present accident, and intermittent visits to the doctor. Six days before the instant accident of May 14th, plaintiff last visited his doctor for treatment of injuries from the November 10, 1963, accident. His treating physician testified by deposition that the November 10th accident had left plaintiff permanently partially disabled and the doctor, on plaintiff's behalf, January 13, 1964, reported to the Selective Service System that plaintiff would have chronic back problems for the remainder of his life.

These facts, combined with other evidence, enabled the jury to find that on May 14, 1964, the date of the instant accident, plaintiff was still suffering from and under medical treatment to a marked degree for injuries incurred in the November 10, 1963, accident, and to some extent from the first accident.

Before trial of the issues arising from the present accident, plaintiff suffered further injuries in a rear-end collision on August 10, 1964, which, although described by plaintiff as a 'light tap,' induced the doctor to prescribe back braces, a cervical collar and medication for pain and muscle spasm--all attributable by the doctor to aggravation of earlier injuries.

The jury in the present case returned a verdict for plaintiff in the sum of $340 and plaintiff moved to increase it or, in the alternative, for a new trial on eight grounds including misconduct of the jury, passion and prejudice, want of substantial justice, and unjustified verdict contrary to law. The trial judge, concluding from the record that the jury had returned a verdict for out-of-pocket medical expenses only and had thus failed to allow any general damages for pain and suffering attributable to the May 14, 1964, accident, granted additur of $2,000 to the $340 verdict and ordered a new trial on the issue of damages only should either party reject the increase. Plaintiff accepted the additur, and defendants, refusing it, bring this appeal from the order directing a new trial, asking that the jury verdict be reinstated and judgment entered thereon.

Plaintiff supported his motion for an increase of the verdict with an affidavit of one of the jurors that 'the verdict was arrived at by merely adding medical bills submitted by the plaintiff from Miriam Engelland, Physical Therapist, and Dr. Arnold. That the jury awarded payment of these expenses only from the 15th day of May, 1964 to August 10, 1964.' From this affidavit and the record, plaintiff argues that the jury awarded only out-of-pocket medical expenses for physical therapy and doctor's treatment between the dates of May 14, 1964, the date of the third accident, and August 10, 1964, the date of plaintiff's fourth accident.

Except in cases which fall peculiarly within equitable jurisdiction, or where remedies and defenses are made available by statute without a jury, the right of trial by jury shall be inviolate. Const. art. 1, § 21. Accordingly, the law gives a strong presumption of adequacy to the verdict. RCW 4.76.030; Martin v. Foss Launch & Tug Co., 59 Wash.2d 302, 367 P.2d 981 (1962); Worthington v. Caldwell, 65 Wash.2d 269, 396 P.2d 797 (1964). Regardless of the court's assessment of the damages, it may not, after a fair trial, substitute its conclusions for that of the jury on the amount of damages. Tolli v. School Dist. No. 267 of Whitman County, 66 Wash.2d 494, 403 P.2d 356 (1965). When the evidence concerning injuries is conflicting, the jury decides whether the injuries are insignificant, minor, moderate, or serious, and it determines the amount of damages. Aside from the requirement that there be substantial evidence to support the verdict, the jury is the final arbiter of the effect of the evidence, for it determines the credibility of the witnesses, the weight of their testimony, and the consequence of all other evidence. Scanlan v. Smith, 66 Wash.2d 601, 404 P.2d 776 (1965); Richards v. Sicks' Rainier Brewing Co., 64 Wash.2d 357, 391 P.2d 960, 2 A.L.R.3d 430 (1964); Pritchett v. City of Seattle, 53 Wash.2d 521, 335 P.2d 31 (1959); McUne v. Fuqua, 45 Wash.2d 650, 277 P.2d 324 (1954).

Other than the amount of the verdict, the record in this case discloses no basis to suggest that the jury was prejudiced against plaintiff or incited by passion to regard his cause unfairly. True, plaintiff's counsel made an affidavit that, in his telephonic conversations with jurors to ascertain why their verdict had been so low, one juror had told him that young people of today are unworthy of belief because they are not of good moral character. But, the affidavit of counsel, hearsay in character as it was, cannot be allowed to impeach the verdict of a jury, for impeachment by such means would inevitably place nearly every verdict in jeopardy and promote great uncertainty in the judicial process. Casey v. Williams, 47 Wash.2d 255, 287 P.2d 343 (1955).

To sustain the additur and the new trial, plaintiff must establish one explicit...