Gamble v. Keyes

• Decision Date: 31 December 1917
• Docket Number: 4073
• Citation: 39 S.D. 592,166 N.W. 134
• Parties: ELIZABETH F. GAMBLE, Plaintiff and Appellant, v. KEYES, et al. Defendants and Respondent.
• Court: South Dakota Supreme Court

39 S.D. 592

166 N.W. 134

ELIZABETH F. GAMBLE, Plaintiff and Appellant, v. KEYES, et al.

Defendants and Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Codington County, SD

Hon. Carl G. Sherwood, Judge

#4073--Affirmed

McFarland & Johnson

Attorneys for Appellant.

Wilbur S. Glass, Sherin & Sherin

Attorneys for Respondent.

Opinion filed December 31, 1917. Rehearing denied February 14, 1918

(See 35 SD 644, 153 N.W. 888)

WHITING, J.

This case has been before us upon an appeal from an order overruling a demurrer to the answer, our opinion being reported in Gamble v. Keyes, 153 N.W. 888. Reference is made to such opinion for a statement of the nature of the cause of action and the claims of plaintiff. After such appeal a trial was had and a verdict returned in the full amount sought by plaintiff, $21,013.50. The present appeal is from an order setting aside such verdict and granting a new trial.

Section 301, C. C. P., provides that a new trial may be granted for the following among other causes:

"5. Excessive damages, appearing to have been given under the influence of passion or prejudice.

"6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law."

The motion in this case was made upon the first ground announced in subdivision 6. There seems to be a marked lack of harmony in the decisions as to when a motion for new trial should be made under subdivision 5 and when under subdivision 6. Perhaps the best and clearest statement of the rule announced by some of the courts and approved by Haynes in his work on New Trial and Appeal at section 94 is that found in Mohr v. Williams, 95 Minn. 261, 1 LRA (NS) 439, 111 AmStRep 462, 5 Ann. Cas. 303, where the court said:

"In actions to recover unliquidated damages, such as actions for personal injuries, libel, and slander, and similar actions, where the plaintiff's damages cannot be computed by mathematical calculation, and are not susceptible to proof by opinion evidence, and are within the discretion of the jury, the motion for new trial on the ground of excessive or inadequate damages should be made under ... [fifth subdivision, supra]; and in such cases the court will not interfere with the verdict unless the damages awarded appear clearly to be excessive or inadequate, as the case may be, and to have been given under the influence of passion or prejudice. On the other hand, in all actions, whether sounding in tort or contract, where the amount of damages depends upon opinion evidence, as the value of the property converted or destroyed, the nature and extent of injuries to person or property, the motion for new trial should be made under ... [sixth subdivision, supra], and in cases of doubt, or where both elements of damages are involved, under both subdivisions."

We doubt the soundness of any rule of law that would give to the trial court the universally conceded power to review the judgment of a jury as to the proper amount of damages to be awarded, when such judgment rests upon the opinions of witnesses, and would deny such trial court the power to review the determination of the jury as to the amount to be awarded when such determination flows from the unrestrained exercise of choice or will on the part of the jury, howsoever honest such exercise of choice or will may be. If the ends of justice are best subserved by giving to the trained mind the power to review the action of the untrained mind in the one class of cases, they surely will be best subserved by allowing the trial judge to grant a new trial in the other class of cases whenever, he feels that a verdict is grossly unjust, whether because too large or too small, and regardless of whether he deems such verdict the honest conclusion of the jury. In Yard v. Gibbons, 95 Kan. 802, 149 Pac. 422, the court said:

"There is a cross-appeal here in which the plaintiff insists that the court was not warranted in the reduction of the award made by the jury. She contends that, since the court expressly finds that the amount awarded was not the result of passion and prejudice, it was not warranted in setting up its judgment against that of the jury, and that the sum which she was coerced to remit should be restored. An approval of the verdict by the trial court was essential to the entry of a judgment, and it could not approve it unless, in its judgment, the testimony warranted it.

"Evidently the court was satisfied with the findings of the jury to the effect that the defendant was negligent, and that, by reason of his negligence, a liability arose in favor of plaintiff, but it differed with the jury as to the extent of the injury and loss sustained. It concluded that, while the jury was not influenced by passion or prejudice the award was, in his judgment, manifestly excessive. Although the assessment of damages is peculiarly within the province of a jury, and although a verdict should never be disturbed by the trial court merely because its judgment inclines the other way nor unless the verdict is clearly excessive, the court must nevertheless approve the award, and in doing so it cannot shirk responsibility, but should act on its own judgment. If it is satisfied that the evidence does not sustain the award of damages, it should either modify the verdict or set it aside."

As directly in point on this question, we quote the following from Smith v. Maddox-Rucker Banking Co., 135 Ga. 151, 68 SE 1031:

"The Count of Appeals certified to the Supreme Court the following questions:

"'(1) Has the judge of a trial court, upon a motion for a new trial containing the usual grounds and a further general ground: that the verdict is excessive, the power to set aside the verdict in a case of libel, slander, or in other similar cases in which the sole measure of the damage is the enlightened conscience of the jury, when, in his opinion, the verdict is unreasonably too large, and there is nothing in the record to show that the verdict is the result of gross mistake or undue bias?

"'(2) Where the jury returns a verdict in a case of the kind mentioned above, and the trial judge sets it aside on the ground that, in his opinion, it is excessive, and it is the opinion of this court that the verdict is not so large as to raise the inference that it was the result of gross mistake or bias or prejudice, is it proper that this court reverse the judgment of the trial court awarding the first grant of a new trial on this ground alone, there being undisputed evidence tending to show that the plaintiff is entitled to recover in some amount (see Holland v. Williams, 3 Ga. App. 636 , and cases cited therein, and Brown v. Autrey, 78 Ga. 756 , and cases cited) ?' ...

"Beck, J. We are of the opinion that the rule announced in the case of Cox v. Grady, 132 Ga. 368, is comprehensive enough to embrace cases of the character of the instant case, to which the certified questions relate. The ruling there announced answers in the affirmative the first and third questions, and requires an answer in the negative to the second question; and the scope of the discussion in the opinion and in the cases cited in the Cox Case render further argument unnecessary. We are satisfied with the reasoning in that case and in the case of Holland v. Williams, 3 Ga. App. 636, 60 S.E. 331."

We believe that our views are in harmony with the great weight of authority. Cables v. Bristol Water Co., 86 Conn. 223, 84 Atl. 928; Devine v. City of St. Louis, 257 Mo. 470, 51 LRA (NS) 860; Curtiss v. Starr & Co., 85 Cal. 376, 24 Pac. 806; City of Sedan v. Church, 29 Kan. 190; Dewey v. Railway Co., 31 Iowa, 374.

But, even if we should subscribe to the rule announced by the Minnesota court, it would, avail appellant nothing. Such rule has no application to any determination of the amount of damages to be allowed, in so far as such amount may depend upon the existence of some one or more causes of action or elements of damages the existence of which is challenged by evidence; nor to any such determination, in so far as the amount thereof rests upon the nature or extent of an alleged injury the nature or extent of which is challenged by evidence. The existence of any cause of action or element of damages, as well as the nature and extent of damages as distinguished from the monetary measure of such damages, are matters in which the judgment of the jury must be based upon the evidence, and every verdict, in so far as it rests upon disputed facts, is subject to review by the trial court, regardless of any question of its being the result of passion and prejudice. A. sues B. for damages alleged to flow from personal injuries suffered through the negligence of B. A. claims two injuries as the result of the negligent act—one slight, the other severe. A verdict is rendered which is knot so unreasonable in amount as to raise a presumption that it was the result of passion or prejudice, if in fact the jury found that A. suffered both injuries, and that both were the result of an accident chargeable to the negligence of B.; but such verdict is unconscionable in amount and so excessive as to indicate that it was the result of passion and, prejudice, provided the jury found either that A. had not suffered the severe injury, or that it was not the result of the accident pleaded. No "opinion evidence" was introduced. A new trial is sought, and, upon a review of the evidence, either one or both of the following facts appears to the trial court to be established by a clear preponderance of the evidence, though there is evidence to the contrary which, if undisputed, would have warranted the verdict which was returned: (a) That B. was not guilty of any negligence; (b) that A. did not suffer the severe injury, or, if he did, that it was not the result of the accident complained of. In addition to the above it appears clear that, even though A. be conceded the right to recover for both injuries, the amount of...