Gould v. Mans

• Decision Date: 05 July 1967
• Docket Number: No. 10391,10391
• Citation: 82 S.D. 574,152 N.W.2d 92
• Parties: Mary Ann GOULD, Plaintiff and Respondent, v. Otto MANS and Soo Cab Company, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 92

152 N.W.2d 92

82 S.D. 574

Mary Ann GOULD, Plaintiff and Respondent, v. Otto MANS and Soo Cab Company, Defendants and Appellants.

No. 10391.

Supreme Court of South Dakota.

July 5, 1967.

Davenport, Evans, Hurwitz & Smith, Carleton R. Hoy, Sioux Falls, for defendants and appellants.

Woods, Fuller, Shultz & Smith, Timothy J. Nimick, A. D. Sommervold, Sioux Falls, for plaintiff and respondent.

HANSON, Judge.

In this 'whiplash' action plaintiff, Mary Ann Gould, seeks recovery of $100,000 damages. She was allegedly injured on January 15, 1965 while seated in the right front seat of a Yellow Cab which had stopped for a red light at the intersection of 11th and Duluth Avenues in Sioux Falls. The streets were icy and her cab was struck in the rear by a Soo Cab operated by the defendant, Otto Mans. The impact snapped plaintiff's head back. It moved her taxi about one foot ahead. Two other passengers in the taxi were not knocked off the rear seat and there was no damage to either vehicle.

At the conclusion of the evidence the trial court granted plaintiff's motion for a directed verdict on the issues of negligence and contributory negligence, but believing there was a question of proximate cause presented two verdict forms were submitted to the jury. One form of verdict was in favor of defendant. The jury returned a general verdict for plaintiff in the sum of $3,028.92 which was the precise amount of her alleged medical, hospital, physical therapy, and transportation expenses.

Plaintiff moved for a new trial on the grounds of Inadequate damages (1) appearing to have been given under the influence of passion and prejudice, and (2) Insufficiency of the evidence to justify the verdict. After considering the motion the trial judge wrote counsel 'After a careful examination of the evidence and the verdict in this case, I cannot envision how the jury could legally find the defendant responsible for all of the medical, hospital, physical therapy, and transportation expense; and not responsible for the unquestioned pain and suffering and at least temporary disability during the hospitalization and treatment. Accordingly, I must grant a new trial.' The order for a new trial 'ORDERED, that the verdict of the jury be set aside and vacated on the grounds that, among other things, the verdict was inadequate, in that the jury awarded the plaintiff the exact amount of her medical, hospital, physical therapy and transportation expenses incurred, but did not assess damages for pain and suffering and temporary or permanent disability as a result of the accident.' Defendants appeal from such order.

In granting a new trial for the reason assigned, the trial court was following the apparent weight of authority which regards a verdict in a personal injury action for the amount of medical expenses to be inadequate and invalid without an additional award for pain and suffering. See Annotation in 20 A.L.R.2d 276 and supplemental cases. The reasoning behind this rule is explained in Wall v. Van Meter, 311 Ky. 198, 223 S.W.2d 734, 20 A.L.R.2d 272 as follows: a jury cannot award recovery for medical expenses and without reason deny recovery for the very injuries necessitating the medical expenses. The grounds upon which the courts hold such a verdict inadequate and invalid vary. In some cases it is said to be inconsistent, Feldstein v. Harrington, 8 Wis.2d 569, 99 N.W.2d 694, Shewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529, and Burkett v. Moran, Okl., 410 P.2d 876. In others the great weight of evidence compels an award for pain and suffering and failure to include such an award in the verdict reflects a disregard by the jury of proper instructions given by the court. Fordon v. Bender, 363 Mich. 124, 108 N.W.2d 896; Mosley v. Dati, 363 Mich. 690, 110 N.W.2d 637; Gomes v. Roy, 99 N.H. 233, 108 A.2d 552. A verdict of this nature is also said to be a compromise, Allbee v. Berry, 254 Iowa 712, 119 N.W.2d 230, the result of mistake, passion, prejudice, or partiality, Venuto v. Lubik Oldsmobile Inc., 70 N.J.Super. 221, 175 A.2d 477, or the evidence is insufficient to sustain the same, Maier v. Holzer, N.D., 123 N.W.2d 29.

An adequate verdict cannot be guaranteed by the courts to every plaintiff who prevails in a personal injury action and we are not willing to adopt an inflexible rule which would in effect render every verdict approximating a plaintiff's medical expenses inadequate and invalid as a matter of law. Such verdicts have been sustained and explained by the courts on various grounds such...