Hanisch v. Body

• Decision Date: 24 June 1958
• Docket Number: No. 9681,9681
• Citation: 77 S.D. 265,90 N.W.2d 924
• Parties: Lawrence HANISCH, Plaintiff and Appellant, v. Michael BODY, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 924

90 N.W.2d 924

77 S.D. 265

Lawrence HANISCH, Plaintiff and Appellant, v. Michael BODY, Defendant and Respondent.

No. 9681.

Supreme Court of South Dakota.

June 24, 1958.

Rehearing Denied July 10, 1958.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and appellant.

Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and respondent.

HANSON, Judge.

This is an action to recover damages for personal injuries caused by a collision of automobiles. Plaintiff was riding as a guest passenger in one of the vehicles involved. He asked for damages in the amount of $18,500 in his complaint. The jury awarded $1,000. An application for a new trial was made by plaintiff upon the grounds of, (1) grossly inadequate damages, appearing to have been given under the influence of passion or prejudice, and (2) insufficiency of the evidence to justify the verdict. The trial court denied the application for a new trial and entered judgment on the verdict. Plaintiff appeals from the order denying a new trial and from the judgment.

The single question presented is whether or not a new trial should be granted because of an inadequate award of damages. Incidental considerations are defendant's negligence, the plaintiff's contributory negligence, and the application of our comparative negligence law.

The statutory causes for granting a new trial are set forth in SDC 33.1605. Under subsection (5) a verdict may be vacated and a new trial granted for 'Excessive damages appearing to have been given under the influence of passion or prejudice.' We have no similar express statutory authorization for a new trial because of inadequate damages. However, an award of inadequate damages is a ground for granting a new trial in this state on an assignment of insufficiency of the evidence to justify the verdict. Sayer v. Lee, 41 S.D. 252, 170 N.W. 148; SDC 33.1605(6). In the case of Haser v. Pape, 78 N.D. 481, 50 N.W.2d 240, 244, the North Dakota court cited the Sayer case in construing their identical statutory provisions. The North Dakota court upheld an order of the trial court granting a new trial for inadequate damages stating 'It is clear to us that the trial court determined that under the evidence presented in the case the verdict of the jury awarded damages inadequate to a degree incommensurate with substantial justice, or in other words, the verdict was not justified by the evidence, which is a statutory ground for granting a new trial under subsection 6 of Section 28-1902 RCND 1943.' See also Harper v. Superior Air Parts, 124 Cal.App.2d 91, 268 P.2d 115.

A new trial will not be granted because of inadequate damages merely because the court believes the verdict smaller than it should be. In tort actions involving personal injuries the amount of damages is peculiarly a question for the jury. This court has said 'the verdict of the jury will not be set aside except in extreme cases as where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law by which damages in the particular case were to be measured.' Tufty v. Sioux Transit Co., 70 S.D. 352, 17 N.W.2d 700; Simons v. Kidd, 73 S.D. 306, 42 N.W.2d 307, 309.

An application for a new trial is addressed to the sound judicial discretion of the trial court and the only function of this court is to determine whether that discretion has been abused. Johnson v. Olson, 71 S.D. 486, 26 N.W.2d 132. In determining whether the trial court abused its discretion in denying an application for a new trial the evidence must be viewed in the light most favorable to the verdict.

Viewed in such light the evidence shows the accident occurred in the early evening of November 12, 1956, about 8 miles northwest of Sioux Falls on Highway 38. It was a holiday and the pheasant hunting season was still open. The traffic westbound out of Sioux Falls was light. However, the traffic eastbound into Sioux Falls was extremely heavy and the cars were traveling almost bumper to bumper.

The plaintiff, Lawrence Hanisch, was riding in the front seat of a 1953 Plymouth sedan driven by his father-in-law, Rex Pippett. The two families were on their way to Hartford to attend an American Legion supper. The driver, Rex Pippett, aged 66, was a retired farmer and carpenter. As they drove along plaintiff was aware of the heavy oncoming traffic. Some of the cars had their lights on high beam. Plaintiff was not endeavoring to help Pippett watch the road ahead and left the operation of the car entirely up to the driver.

The defendant, Michael Body, was driving his 1946 Ford car west on the highway some distance ahead of the Pippett automobile. Defendant and his family had been visiting in Sioux Falls and were returning to their home in Mitchell. A short distance west of the Ellis road intersection an eastbound car driven by Dick Severtson suddenly pulled out from its south lane of traffic and came toward defendant in the north lane. The Severtson car was pulling a trailer and turned into the north lane when the cars ahead suddenly stopped. When defendant observed the Severtson car coming toward him he applied his brakes and the Severtson car averted a collision by turning north off the highway into a farm driveway. After stopping Severtson and the defendant got out of their cars and had a short conversation. Defendant's car was left standing on the highway. After talking with Severtson a few moments defendant got back into his car and shortly afterwards the rear end of his vehicle was struck by the Pippett automobile. There is a conflict in the testimony as to whether or not defendant's car was standing still at the time of the impact or had started to move forward. While defendant's car was parked on the highway its headlights, two red taillights, and a license number light were on.

The Pippett car had been traveling 40 to 45 miles per hour before the accident. Its lights were on low beam. As they approached the Ellis intersection a car went across the highway at the intersection about 300 feet ahead. In doing so it stirred up dust. Shortly after passing the Ellis intersection Pippett and plaintiff both saw a dark object 80 or 90 feet ahead of them in their lane of travel. Pippett took his foot off the gas and started applying his brakes. The dark object turned out to be defendant's car. The front end of the Pippett car struck the rear end of defendant's vehicle.

The Pippett car...