Goldberg v. Gintoff
| Decision Date | 13 May 1941 |
| Parties | SAM GOLDBERG v. JOHN GINTOFF, ALIAS JOHN GYNTOWT |
| Court | Vermont Supreme Court |
February Term, 1941.
Resubmission of Case.---1. Inadequacy as Ground to Set Aside Verdict.---2. Resubmission under P. L. 1687.---3. Judicial Notice of Pain.---4. Judicial Notice Broken Bones Will Heal.---5. Inadequacy of Damages Slightly Above Bills.---6. Exception to Raise Question.---7. Charge on Damages.---8. Resubmission under P. L. 1687.
1. In a proper case a trial court has the power in the exercise of sound discretion to grant a motion to set aside a verdict as to damages only on the ground of inadequacy, and to order a new trial on that issue alone.
2. Recharging a jury on the matter of damages, calling its attention to P. L. 1687 providing for resubmission of a matter in which the court believes that the jury has mistaken the law or evidence and returning a verdict to the jury and asking them to reconsider the case, raise questions analogous to those arising upon motion to set aside a verdict for inadequacy of damages.
3. A court may take judicial notice that a severe bodily injury produces pain.
4. A court takes judicial notice of natural laws which are matters of common knowledge, such as that broken bones will unite by process of nature but only when the broken parts can be placed and retained in apposition.
5. In a case where there is evidence of pain and suffering and a permanent injury, it can not be said that the resubmission of the matter to the jury after a verdict only slightly in excess of the medical bills was error nor did the court abuse its discretion in asking the jury to reconsider the adequacy of the damages awarded.
6. An exception to a charge that if the evidence indicated the probability of future medical expense that might be taken into consideration when the exception might be understood to mean only that the law did not permit future items of damage of this nature to be included in the verdict does not reasonably indicate to the court the fault complained of and so is not appropriate to raise the question in the Supreme Court.
7. An instruction that the jury "should include in your verdict such an amount as is a fair compensation for that permanent injury" is not peremptory nor undue emphasis when preceded by qualification as to what damages, if any will be suffered.
8. No error appears in a court's resubmission of a verdict pursuant to P. L. 1687 when that section was read to the jury and the court specifically directed that the matter was wholly in the jury's control and the court added that a duplicate form for verdict would be available if needed.
ASSAULT AND BATTERY. Trial by jury, June Term, 1940, Windsor County Court, Blackmer, J., presiding. Verdict for plaintiff. Court suggested the jury reconsider its verdict and verdict then returned for larger amount. Judgment on the verdict. The defendant excepted. The opinion states the case.
Judgment affirmed.
Lee S. Tillotson for defendant.
Paul Gilioli and Louis A. Fucci for plaintiff.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This is a tort action for damages resulting from an alleged assault and battery of the plaintiff by the defendant. Trial below resulted in a plaintiff's verdict for $ 600. When this verdict was rendered the court read to the jury the provisions of P. L. Sec. 1687, repeated the substance of the instructions previously given on the subject of damages returned the verdict to the jury and asked them to reconsider the case. After further deliberation the jury returned a verdict for $ 1054.60 which was accepted by the court and judgment was rendered for that amount. The case is here on the defendant's exceptions.
The defendant has briefed an exception to the resubmission of the case to the jury after the original verdict for the reason that the actual damages shown by the evidence amounted only to $ 308.85, and there was no evidence of loss of earnings or of pain and suffering, and no evidence indicating a permanent injury. P. L. Section 1687 reads thus: "The judges of the county court before whom a cause is tried may, if they judge that the jury has mistaken the law or evidence material to the issue, or has not paid proper attention thereto, cause it to return to a second and third consideration of the cause; and, if the jury does not alter or retract its verdict, the same shall be received." Such a provision of our statute, with no change here material, has been in force since 1787, and we find no case in which the authority of the court to act thereunder, in the exercise of a sound discretion, has ever been challenged. Of course it is challenged here only to the extent and for the reason indicated by the exception.
In resubmitting the case the court gave the jury supplemental instructions on the subject of damages only, and it was in respect to that issue alone that the jury modified its original verdict. This Court has held that, in a proper case, the trial court has power, in the exercise of a sound discretion, to grant a motion to set aside a verdict as to damages only on the ground of inadequacy, and to order a new trial on that issue only. Farr v. Fisher, 107 Vt. 331, 334, 178 A. 883, 98 A.L.R. 926; Bennett v. Robertson, 106 Vt. 112, 169 A. 901; Parizo v. Wilson et al., 101 Vt. 514, 144 A. 856. The question here presented is analogous to that arising upon consideration of such a motion.
Dr Tyson was the only medical expert who testified. From his testimony the jury could find that upon examination of the plaintiff at the hospital after his injury he was found to be conscious and rational; that he had suffered a laceration over the left eye and a fracture of the skull in that region; that the fractured area was circular in shape about one and one-half inches in diameter; that the bone in this area was driven inward to a depth of about half an inch, necessitating an operation for removal of the bone driven inward, which was performed, in order to clean the wound and prevent pressure upon the covering of the brain; that the line of fracture extended into the bony roof of the socket of the eye and also into the sensory sinus of...
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