Green v. Oakley, 868A140

• Decision Date: 18 September 1969
• Docket Number: No. 868A140,No. 2,868A140,2
• Citation: 250 N.E.2d 594,145 Ind.App. 307
• Parties: Clark L. GREEN, Appellant, v. Evelyn R. OAKLEY, Appellee
• Court: Indiana Appellate Court

Page 594

250 N.E.2d 594

145 Ind.App. 307

Clark L. GREEN, Appellant, v. Evelyn R. OAKLEY, Appellee.

No. 868A140.

Appellate Court of Indiana, Division No. 2.

Sept. 18, 1969.

Donald W. Ward, James W. Treacy, Feeney, Treacy & Ward, Indianapolis, for appellant.

George V. Heins, Eugene O. Maley, Smith, Maley & Douglas, Indianapolis, for appellee.

SHARP, Judge.

The plaintiff-appellant, Clark L. Green, filed his complaint in two legal paragraphs against the defendant-appellee, Evelyn R. Oakley, as a result of an automobile collision which occurred on September 7, 1965. Paragraph I of the complaint was for personal injury damages and contained a prayer for $75,000.00. Paragraph II was for property damages to the plaintiff's vehicle and contained a prayer for $300.00. The jury rendered a verdict of $4200.00 on Paragraph I and $300.00 on Paragraph II. The appellant filed a motion for new trial on the sole basis of inadequate damages under Burns' Indiana Statutes Annotated, § 2--2406, which was overruled by the trial court and is the sole assignment of error here.

The allegations of the plaintiff's complaint as to damages are:

'4) As a proximate result of one or more of the said acts of negligence and carelessness of the Defendant, Plaintiff sustained the following injuries:

(a) Injury to his back, including the lumbar area of his back, neck and upper dorsal areas, with pain radiating into his limbs.

(b) Aggravation of a pre-existing and quiescent condition in his low back, necessitating a spinal fusion.

(c) Pain, suffering and mental anguish.

(d) Nervous system severely shocked.

(e) Permanent impairment of his body as a whole.

5) Prior to suffering the injuries described above, Plaintiff was a well and healthy man, and had expectation of a normal life and longevity, and as a result of the injuries received in this accident, he has lost wages in the past and will continue to lose them in the future, and his earning capacity and 'ability to perform the normal pursuits of daily living has been permanently impaired."

The transcript contains 606 pages and discloses that the controversy here was vigorously and ably contested by counsel on both sides and contains conflicting evidence and evidence from which more than one inference is possible.

The basic rule to guide our consideration as to the question of inadequate damages is well stated by our Supreme Court in Henschen v. New York Central Railroad, 223 Ind. 393, 397, 60 N.E.2d 738, 739 (1945), where our Supreme Court states:

'Appellant's assignment 3 and 4 in her motion for new trial can only be an attempt to state grounds therefor under § 2--2406, Burns' 1933 (Supp.).

This section of the statute reads as follows:

'Inadequate damages--Ground for new trial.--Where a party is entitled to recover by his complaint, and he does so recover, but is awarded substantially less recovery than the facts in evidence show his actual pecuniary loss to be, such erroneous award shall constitute ground for a new trial at the instance of the aggrieved party.

While the reason for a new trial need not be stated in the language of the statute, merely stating that the verdict awarded insufficient damages, as does assignment number 4, is not the same as saying that the verdict is substantially less than the facts in evidence show her actual pecuniary loss to be. Of these two assignments, only number 3 reasonably apprises the court and the opposite party of the ground on which the new trial is asked, and said assignment number 3 is, therefore, sufficient. Heekin Can Co. v. Porter (1943), 221 Ind. 69, 46 N.E.2d 486.

Appellee insists that said § 2--2406, Burns' 1933 (Supp.), does not make alleged insufficiency of the recovery awarded by the verdict of the jury ground for a new trial in an action such as this, namely, one brought under the wrongful death statute, § 2--404, Burns' 1933 (Supp.).

Although this statute is peculiarly worded we are not inclined to attribute to the phrase 'actual pecuniary loss', as used therein, the narrow and restricted meaning as has been placed upon the similar phrase 'actual pecuniary injury' by the courts of Kentucky. There, in construing this phrase, the court decided that the word 'injury' is synonymous with the word 'loss,' and the phrase 'actual pecuniary injury' means only damages that can be actually and definitely measured in money. See Drury v. Franke (1933), 247 Ky. 758, 57 S.W.2d 969, 88 A.L.R. 917; also, Owings' Adm'r v. Gradison Const. Co. (1931), 241 Ky. 5, 43 S.W.2d 327. Rather, we believe the legislature, in using the phrase 'actual pecuniary loss', intended to include damages which are recoverable in an action for wrongful death. Recovery for actual pecuniary loss is really what is sought in such an action. As was said by Judge Gillett in Consolidated Stone Co. v. Staggs, 1905, 164 Ind. 331, 337, 73 N.E. 695, 697, in referring to the measure of damages from wrongful death:

'Under a statute like ours, which gives a new right of action, distinct from that which the deceased might have maintained, the measure of damages is compensation for the pecuniary loss sustained by the party or parties entitled to the benefit of the action. 'The sole inquiry is how many dollars are necessary to compensate the beneficiaries for the pecuniary loss caused to them by the wrongful death?' * * * The damages are not to be estimated at the value of the life lost, but at such a sum as will compensate the persons on whose behalf the action is brought for the pecuniary injury which they have sustained by the death.'

By this § 2--2406 of the statute it was intended to provide grounds for a new trial in all other tort actions where the award of damages is inadequate, just as such ground was already provided in tort actions for injury to or detention of property by the fifth cause for a new trial in said § 2--2401, Burns' 1933. So construed, this section repeals, by implication, the first portion of § 2--2402, Burns' 1933, which provides that a new trial shall not be granted on account of the smallness of the damages in actions for an injury to the person or reputation.

In order to determine whether this verdict is inadequate we must apply the same rules as would be applied if it were being challenged as excessive under the fourth cause for a new trial as set out in § 2--2401. This is also the modern rule at common law. Kilmer v. Parrish (1908), 144 Ill.App. 270; Benton v. Collins (1899), 125 N.C. 83, 34 S.E. 242, 47 L.R.A. 33, Note.

Aside from cases where damages are a mere matter of computation this court will reverse a cause for excessive damages only where, after examining the evidence concerning the injuries, it is apparent that the amount of damages assessed by the jury is so large as to indicate that the jury in assessing the amount was motivated by prejudice, passin, partiality or corruption, or considered some improper element. Jones v. Cary (1941), 219 Ind. 268, 37 N.E.2d 944; Citizens' Tel. Co. v. Prickett (1919), 189 Ind. 141, 125 N.E. 193. This is the rule, therefore, that must guide us in determining whether the damages awarded in this case are inadequate. To adopt any other rule which would allow us to examine and weigh the evidece would be an invasion of the province of the jury.

In the case at bar, the record discloses that the deceased was, at the time of his death, 34 years of age, with a life expectancy of 31.58 years; that he was strong and in good health, and was steadily employed; that his wage was, and had been for about a year, $25 per week; that he left surviving him a widow, the appellant herein, and three minor children, and that a fourth child was born after his death; that...