Halverson v. Zimmerman, 5412.

• Decision Date: 30 March 1928
• Docket Number: No. 5412.,5412.
• Citation: 56 N.D. 607,218 N.W. 862
• Parties: HALVERSON v. ZIMMERMAN.
• Court: North Dakota Supreme Court

56 N.D. 607

218 N.W. 862

HALVERSON

v.ZIMMERMAN.

No. 5412.

Supreme Court of North Dakota.

March 30, 1928.

Syllabus by the Court.

Where a motion for a new trial is made on the ground of excessive damages appearing to have been given under the influence of passion or prejudice, the trial court, on the hearing of such motion, and the Supreme Court on appeal, are vested with power to order a reduction of the verdict in lieu of a new trial, where it appears that the passion or prejudice affected only the amount of damages allowed, and did not influence the findings of the jury on other issues in the case. Chapter 334, Laws 1923.

In case the trial court, upon the hearing of such motion, finds that excessive damages have been given under the influence of passion or prejudice, it must further determine whether the ends of justice will be best subserved by ordering a reduction of the verdict or by ordering a new trial. Whether there shall be a reduction of the verdict or a new trial, like all other questions involved in the determination of such motion for a new trial, is addressed to the sound judicial discretion of the trial court, and the appellate court will not interfere, unless a manifest abuse of such discretion is shown.

Where the ultimate fact to be determined by the jury is whether the conduct of a certain person was negligent, witnesses should not be permitted to express an opinion or judgment upon such ultimate fact, but should be restricted to a statement of evidentiary facts, leaving to the jury to draw the ultimate conclusion as to whether these evidentiary facts establish the ultimate fact at issue.

Appeal from District Court, Barnes County; Englert, Judge.

Action by Sivert Halverson against Dr. S. A. Zimmerman and another. Verdict against the named defendant. From an order granting a new trial, plaintiff appeals. Affirmed.Lemke & Weaver, of Fargo, for appellant.

Lawrence, Murphy & Nilles, of Fargo, for respondent.

CHRISTIANSON, J.

Plaintiff brought this action to recover damages against the defendants Zimmerman and Crosby for alleged malpractice in the diagnosis and treatment of plaintiff's left shoulder and arm, which had been injured in an automobile accident. The action was dismissed as to the defendant Crosby. The jury returned a verdict against the defendant Zimmerman for $12,000. The defendant moved for a new trial on the grounds, among others: (1) Excessive damages, appearing to be given under the influence of passion or prejudice; and (2) error in the admission of evidence prejudicial to the defendant. The trial court held that these two grounds were well founded and ordered a new trial, and the plaintiff appeals.

[1] In granting a new trial the trial judge filed a memorandum opinion, wherein he considered at length the various questions presented on such motion. As regards the questions of excessive damages and alleged errors in admission of evidence, the court said in part:

“The statute (section 7660, subd. 5, Supplement to 1913 Compiled Laws) sets forth as one of the causes for a new trial: ‘Excessive damages appearing to have been given under the influence of passion or prejudice. Where a new trial is asked for on this ground, and it appears that the passion and prejudice affected only the amount of damages allowed, and did not influence the findings of the jury on other issues in the case, the trial Court on hearing the motion, and the Supreme Court on appeal, shall have power to order a reduction of the verdict in lieu of a new trial; or to order that a new trial be had unless the party in whose favor the verdict was given remit the excess of damages.’

The plaintiff was 61 years of age, and according to the Carlisle Tables of Mortality he had 12.06 years yet to live. Dr. Platou testified that he found the plaintiff normal, except for the condition of his left shoulder, arm, and hand. He also testified that the plaintiff had some use of his arm, but that ‘he will never get full use of it.’ Counsel for the plaintiff maintains that, taking into account the plaintiff's life expectancy, what he could earn during that time, expenses paid out, and considering the pain and suffering, that the verdict is not excessive. * * * On the question of an excessive verdict in this case, there can be no real difference of opinion. The important question, then, is whether this court ought to reduce the verdict, or grant a new trial.

Under the statute quoted, the court has that power. * * * While our statute says that the court may reduce excessive verdicts, which are the result of passion or prejudice, the facts in this case would make it exceedingly difficult for this court to determine the amount of damages with any degree of fairness or justice. To this end we must bear in mind that the plaintiff had been severely injured by an automobile, and that his shoulder was dislocated by that accident, and he suffered a great deal of pain as a result thereof. The negligence of the defendant is that of omission, and not of commission. His negligence is attributed to something he failed to do, perform, or investigate. He did not inflict the injury. It is quite apparent, from the amount of the verdict in this case, that the jury allowed damages to the plaintiff for his entire injury, both that sustained in the automobile accident, and that claimed as a result of the failure of the defendant to properly care for the dislocated shoulder.

This case presents such a peculiar situation, and the result so out of proportion to the amounts generally allowed in cases, where the party who inflicted the injury was held liable, that no court would feel like determining the...