Deschane v. McDonald
| Decision Date | 27 November 1957 |
| Docket Number | No. 7633,7633 |
| Citation | 86 N.W.2d 518 |
| Parties | Francis X. DESCHANE, Plaintiff and Respondent. v. Ross E. McDONALD, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. A district court has, in a proper case, the power to grant a new trial upon any one or more of the issues raised upon a provious trial.
2. The question of whether a new trial should be granted because of the award of inadequate damages is one which lies primarily within the sound judicial discretion of the trial court and the trial court's decision upon this question will not be disturbed except for an abuse of discretion.
3. A new trial upon the question of damages alone should not be granted unless the proof of liability is clear, the issue of damages is separable from the other issues in the case, the evidence is such that a compromise upon the question of liability may not reasonably be inferred and the verdict, in so far as liability is concerned, is untainted by passion or prejudice.
4. Under the evidence in this case an order granting a new trial upon the question of damages alone did not constitute an abuse of the trial court's discretion.
Leslie R. Burgum, Atty. Gen., Frank J. Kosanda, Asst. Atty. Gen., for appellant.
Degnan, Hager, McElroy & Lamb, Grand Forks, for respondent.
This is an action for damages for injuries received by plaintiff when an automobile in which he was riding collided with an automobile operated by the defendant. The pleadings in the case raised issues as to whether plaintiff's injuries were proximately caused by defendant's negligence or by the negligence of the driver of the car in which plaintiff was a passenger and as to the extent and degree of plaintiff's damages. Upon the trial of the case in district court the jury returned a verdict in favor of the plaintiff. Plaintiff moved for a new trial upon the issue of damages alone or in the alternative for a new trial upon all issues. After a hearing upon this motion the trial court entered an order granting a new trial upon the issue of damages alone. The defendant has appealed from this order.
The are two main issues in the case. The first is whether a trial court has the power to grant a new trial upon the issue of damages alone in a case where the plaintiff is seeking unliquidated damages. The second is whether, if the court has the power, this was a proper case in which to exercise it.
As defined by statute, 'A new trial is a reexamination of an issue of fact in the same court, after a trial and decision by a jury or court or by a referee.' Section 28-1901, NDRC 1943. The use of the indefinite article 'an' to modify 'issue of fact' in the above statute is significant. 'An', as defined by Webster's New International Dictionary, 2d ed., means 'one', 'some one', or 'any one'. A re-examination of an issue or fact may therefore be said to be a re-examination of any one issue of fact. It follows from a literal construction of Section 28-1901, supra, that the power to grant a new trial includes the power to grant a new trial upon all or upon any one of the issues of fact which arose upon a previous trial. Such a construction is in harmony with the policy as the law as expressed elsewhere. Under the provisions of Section 28-2729, NDRC 1943, the supreme court may upon an appeal, 'order a new trial of the entire cause or of some specific issue or issues.' This statute authorizes new trials, upon limited issues, in district courts, upon direction of the supreme court. To say that a district court itself has the power to order such a new trial is not only a literal construction of Section 28-1901, supra, but is a reasonable corollary to the express provisions of Section 28-2729, supra. We are satisfied therefore that a trial court has in a proper case the power to grant a new trial upon any one or more of the issues raised upon a previous trial.
The question of whether a new trial should be granted because of inadequate damages is one which lies primarily within the sound judicial discretion of the trial court. Haser v. Pape, 78 N.D. 481, 50 N.W.2d 240; Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11. And the trial court's decision upon this question will not be disturbed except for an abuse of discretion. Haser v. Pape, supra; Johnson v. Patterson, 67 N.D. 132, 270 N.W. 97; Durick v. Winters, 70 N.D. 592, 296 N.W. 744.
In this case the verdict in favor of the plaintiff was in the sum of $1,508.92. The undisputed proof is that his hospital and medical bills totaled $1,423.92. Plaintiff's injuries were substantial. They included a compound fracture of the right femur, a fracture of the right radius, a fracture of a phalanx of his right little finger and a fracture of a metatarsal bone in his left foot in addition to cuts and bruises. Plaintiff was in the hospital for two months and eighteen days and after his release from the hospital was in bed for two weeks at home. Thereafter he used crutches for a month and a half and since giving up the crutches he has walked with the aid of a cane. His physician testified that as a result of his injuries and their treatment plaintiff suffered considerable pain and serious discomfort and that he will have a permanent limitation of motion in his right knee and in his right hand. Plaintiff, himself testified to special damages of $40 for clothing damage, $40 for loss of eye glasses, $5 for the purchase of a cane, $75 for the employment of help, and loss of income from his own labor of $600 to $800 a year.
Since the amount of the verdict was only $85 in excess of the undisputed medical and hospital expenses, it is apparent that the jury did not allow any damages for the cost of extra help, loss of income, for pain and suffering or for permanent disability.
As to the $75 item for extra help and as to the loss of income the evidence was unsatisfactory. Plaintiff had had a heart attack about three years before the accident. While he testified that he had earned $600 to $800 a year doing odd jobs of carpentry, paper hanging and painting, he couldn't remember any specific jobs he had done either during the year in which the accident occurred or in the previous year. Under the evidence the jury could have found that it was the heart attack which was the cause of his loss of earning ability, and which made the employment of extra help necessary.
It is apparent, however, that no award for damages for pain and suffering or for permanent disability was included in the verdict. The medical testimony is that these damages were substantial. The nature and extent of plaintiff's injuries were such that reasonable men could not disagree with this medical testimony. Clearly, the verdict was greatly disproportionate to the proven damages sustained. Browder v. Beckman, 275 Ill.App. 193; Ashland Coca Cola Bottling Co. v. Brady, 252 Ky. 183, 66 S.W.2d 57; Annotation, 20 A.L.R.2d 276. It follows that the trial court's order granting a new trial was not an abuse of judicial discretion.
The final question is whether this was a proper case for the exercise of the trial court's power to grant a new trial upon the question of damages...
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