DeWitty v. Decker

• Decision Date: 03 July 1963
• Docket Number: No. 3133,3133
• Citation: 383 P.2d 734
• Parties: Thelma DeWITTY, Appellant (Plaintiff below), Hubert R. DeWitty, Esme McHenry and Randi DeWitty, by her next Friend Thelma DeWitty, (Plaintiffs below), v. Guy C. DECKER and Gerald D. Snyder, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 734

383 P.2d 734

Thelma DeWITTY, Appellant (Plaintiff below), Hubert R. DeWitty, Esme McHenry and Randi DeWitty, by her next Friend Thelma DeWitty, (Plaintiffs below), v. Guy C. DECKER and Gerald D. Snyder, Appellees (Defendants below).

No. 3133.

Supreme Court of Wyoming.

July 3, 1963.

Lawrence A. Marty, Green River, for appellant.

E. J. Herschler, Kemmerer, for appellees.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Appellant, Thelma DeWitty, was injured as the result of an automobile collision and joined by her husband brought suit to recover their damages. Appellant claimed damages of $25,000 for pain and suffering and temporary and permanent disability, $1,637 for medical and hospital expense, and $1,582 for loss of wages. Damage to their jointly-owned car was claimed in the sum of $400. The case was tried to a jury and the jury returned a verdict finding in favor of plaintiffs, and assessed damages as follows:

Appellant's General Damages None

Appellant's Special Damages $1,637.00

Joint Property Damage (Car) 334.72

Total $1,971.72

A joint judgment in that amount, together with costs, was entered. Claiming irregularity on the part of the jury in failing to assess general damages in any amount, and that such verdict was not sustained by the evidence and was contrary to law, appellant and her husband filed a motion for new trial which was denied by the trial court. Appellant, alone, brings the matter here for review.

For purposes of this appeal, it seems unnecessary to relate in detail the evidence pertaining to the accident. Suffice it to say that appellant, a teacher in the Seattle public school system, accompanied by her mother, young daughter, and another passenger, was en route to a teachers' meeting in St. Louis, Missouri, and while driving her car on U. S. Highway 30 in Wyoming, at a point near Dry Lake, became involved in a collision with an oil-tanker truck driven by defendant-Snyder. The accident happened a short time after 7 p. m. June 28, 1959, during a rainstorm. The truck struck the rear of the car driven by appellant, causing substantial damage. The jury having found that defendant's negligence was the proximate cause of the accident and that appellant was free from contributory negligence, which is not here challenged, we now turn to the evidence relating to the claimed personal injuries of appellant.

We shall not recite in detail the evidence relating to the above-described injuries. Briefly, it appears that following the accident appellant claimed that she had severe pains in her neck, which extended around to her ears and eyes and also affected her fingers, and in the lumbo-sacral area of the lower part of her back. However, it also appears that appellant at the time of the accident advised the patrolman she was not hurt, continued on her trip to St. Louis, Missouri, and did not seek or obtain any more than superficial medical aid until she returned to her home in Seattle on or about August 8, 1959. At that time she consulted Dr. Henry and complained of the pain and soreness above described. He found some evidence of muscular spasm in the lower back, prescribed medication to relieve the pain, and in August 1960 prescribed a back brace. Late in November 1960 appellant still complained of pain in the lower back resulting from movement, and in an effort to remove the discomfort appellant was hospitalized and placed under traction for some three weeks. Upon release, the treatment was followed by therapy about twice a week for two or three months. At the time appellant was hospitalized Dr. Henry brought Dr. Gray, an orthopedic surgeon, into the case and he examined appellant on several occasions.

Both Dr. Henry and Dr. Gray testified on behalf of appellant and while it appears that appellant had a congenital defect in her lower spine, which was said to have made it more susceptible to difficulties from an injury, there was no evidence of old or recent traumatic injury to the spine, and the discomfort claimed by appellant seems to emanate from the ligaments of the back. Both said this condition would cause pain and distress.

On the other hand, the medical expert produced by defendants testified that he had examined appellant on September 1, 1960, and again on January 3, 1962. After making certain tests, he said he could not correlate the subjective complaints of appellant with any organic condition and 'considered it a certain amount of psychic overlay that must have been producing her pain.' He felt that with proper dieting and exercise many of her subjective complaints would disappear.

In view of the foregoing, appellant contends that the verdict and judgment herein were erroneous for failure to fix an award for general damages and that the trial court erred in refusing to grant appellant a new trial. The nub of the contention as presented here centers around the failure to award damages for pain and suffering.

As a general rule, the failure of a jury to award general damages, in the face of an award for substantial medical and hospital expense, results at least in an improper or irregular verdict. The authorities that we have examined on the subject are practically unanimous in so holding. Webster v. City of Colfax, 250 Iowa 181, 93 N.W.2d 91, 92; Vittitow v. Carpenter, Ky., 291 S.W.2d 34, 35; Davidson v. Schneider, Mo., 349 S.W.2d 908, 913; Hallford v. Schumacher, Okl., 323 P.2d 989, 992; Edmonds v. Erion, 221 Or. 104, 350 P.2d 700; Cohen v. Food Fair Stores, Inc., 190 Pa.Super. 620, 155 A.2d 441, 444; and Smith v. Bullock, Tex.Civ.App., 317 S.W.2d 232, 234. See also Annotation 20 A.L.R. 276. The basis for application of the rule varies to some extent, some of the courts holding that such a verdict is contrary to law in that the jury failed to follow instructions, while others seem to predicate the holding on the inconsistency of the verdict.

In the instant case, while there is some divergence of view in the medical testimony as to whether the pain and suffering claimed was largely feigned or real, the plain fact is that although the jury awarded appellant substantial medical and hospital expenses said to have been incurred as a result of the accident, it also found that pain and suffering did not bring about or accompany the treatment that resulted in such medical and hospital expenses. On the face of the verdict, the findings appear to be inconsistent.

Nevertheless, we are not convinced that such irregularity and impropriety in the verdict confer just cause to set it aside under the circumstances of this case. Unfortunate as the failure to recover damages in keeping with expectations might seem to appellant, relief under Rule 59 of our Rules of Civil Procedure relating to new trials is not granted as a matter of inherent right. It may be waived by conduct at the trial. See Hanson v. Shelburne, 23 Wyo. 445, 153 P. 899, 900; Oeland v. Neuman Transit Company, Wyo., 367 P.2d 967, 968; and 39 Am.Jur., New Trial, §§ 13 and 14, pp. 39-40.

The matter of waiver is grounded, among other things, on the proposition that jury trials are time-consuming and costly proceedings and while a litigant is entitled to a fair trial, certain it is that he has responsibilities to assist the trial court in bringing about such a result. It will not do to permit a litigant to remain mute and speculate on the outcome of a jury trial on the record made with knowledge of irregularities or improprieties therein that might readily and easily have been corrected during the trial and then, when misfortune comes his way, to attempt to set the invited result aside by way of a new trial because of such matters. It is not fitting for the trial court or this court knowingly to reward or condone such conduct. As so aptly stated by Judge Rossman in Fischer v. Howard, 201 Or. 426, 271 P.2d 1059, 1063, 49 A.L.R.2d 1301, a loser should not by design get 'two bites at the cherry.'

Without meaning to be hypercritical because of the peculiar circumstances of this case, this may well have been what happened here. At least two opportunities, as we shall point out, were afforded appellant to prevent the very thing that now brings her before this court.

We first have in mind the obvious impact of the instructions of the trial court and the furnished form of verdict upon the deliberations of the jury. It is not really our province to speculate as to the legal theory upon which a jury might have arrived at its findings (see O'Brien v. General Motors Acceptance Corporation, Wyo., 362 P.2d 455, 457), but nevertheless it seems desirable here to point out the manner in which this case was submitted to the jury on the question of damages.

We now turn to Instruction 9 wherein, among other things, the jury was told that if it found defendant liable that it must 'determine the damages of each plaintiff as elsewhere stated in these instructions.' Then by Instructions 13 and 14 the court undertook to instruct on the measure of damages and, among other things, stated that if the jury found for plaintiffs, then it must award damages for the automobile in the sum of $334.72 and special damages not to exceed the sum of $1,637 for hospital and medical expense, which the court said, 'is the undisputed evidence in this case.' With respect to general damages, the jury was told by Instruction 13 that if it found for appellant, the award of damages 'if any' for 'physical and mental pain and permanent injuries, if any' should not exceed the sum of $25,000 and also that there was no fixed standard for measuring the amount to be allowed for pain and suffering, but that the jury from the testimony should 'determine what you think the pain and suffering, if any, of Thelma DeWitty is worth.' Then, in Instruction 14, the court reiterated that if defendants were liable, plaintiff was entitled to recover 'for bodily pain and suffering, if any, that she has heretofore...