Harris v. Zee

• Decision Date: 28 June 1971
• Docket Number: No. 6405,6405
• Citation: 486 P.2d 490,87 Nev. 309
• Parties: Henrietta HARRIS, Appellant, v. Louis ZEE a.k.a. Zee Louis, Respondent.
• Court: Nevada Supreme Court

Page 490

486 P.2d 490

87 Nev. 309

Henrietta HARRIS, Appellant, v. Louis ZEE a.k.a. Zee Louis, Respondent.

No. 6405.

Supreme Court of Nevada.

June 28, 1971.

Rehearing Denied July 20, 1971.

Charles L. Kellar, Las Vegas, for appellant

Denton & Monsey, Las Vegas, for respondent.

OPINION

THOMPSON, Justice.

In this personal injury action the jury favored the plaintiff with its verdict for $10,000 compensatory damages. Her special damages were in the sum of $529.50 and the balance of the award was for pain and suffering. The district court, believing that the award was excessive, granted the defendant's motion for a new trial unless the plaintiff would accept a remittitur of $7,500. This, the plaintiff refused to do, choosing instead, to challenge the propriety of the court's order by this appeal.

The plaintiff, a domestic worker, was eating a dinner of string beans, rice and chicken at the defendant's Louisiana Club. She swallowed an object which stuck in her throat, and commenced vomiting. She was taken to the emergency room of the Southern Nevada Memorial Hospital where the doctor ordered an esophagoscopy. A small metal fragment was visualized in the upper part of the esophagus. It soon passed into the stomach or the digestive system and was not recovered. She remained in the hospital overnight and was released. Thereafter, she was treated by her doctor for about one month. At the time of trial some three years later she claimed that her voice was hoarse and that she still had trouble speaking. Her testimony and that given by her doctors is not disputed. The defendant did not offer medical evidence.

The trial court possessed the power to enter the order here challenged. NRCP 59(a)(6); Hotel Riviera, Inc. v. Short, 80 Nev. 505, 396 P.2d 855 (1964); Brownfield v. Wollworth Co., 69 Nev. 294, 297, 251 P.2d 589 (1952). This court also possesses that power. Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962); Henry v. Baber, 75 Nev. 59, 334 P.2d 839 (1959); Knock v. Tonopah & G.R.R. Co., 38 Nev. 143, 145 P. 939 (1914); Konig v. Nev.-Cal.Or. Ry., 36 Nev. 181, 135 P. 141 (1913); Cutler v. P.S.P.M. Co., 34 Nev. 45, 116 P. 418 (1911); Christensen v. Floriston P. Co., 29 Nev. 552, 92 P. 210 (1907).

When the trial judge orders a remittitur damnum and we are asked to review his action, the test is whether he abused his discretionary power. Gill v. Epstein, 62 Cal.2d 611, 401 P.2d 397 (1965). This is an elusive standard. We must accord deference to the point of view of the trial judge since he had the opportunity to weigh evidence and evaluate the credibility of witnesses--an opportunity foreclosed to this court. To this extent the appeal is weighted in favor of the order entered, and when there is a material conflict of evidence as to the extent of damage, a challenge to the trial court's exercise of discretion is substantially repelled. However, this is not so when the evidence regarding damage is not in conflict. The order to remit immediately becomes suspect unless the amount awarded by the jury, standing alone, is so excessive as to suggest the intrusion of passion and prejudice upon its deliberations.

In the case at hand the award of $10,000, when considered in the light of the undisputed evidence, does not indicate passion or prejudice on the part of the jury. An allowance of $3,000 a year for three years of voice distress is within reasonable limits. Our judicial conscience is not shocked (Miller v. Schnitzer, 78 Nev. 301, 309, 371 P.2d 824 (1962)) and we are unable to perceive why the trial judge was offended. He did not state his reasons for diminishing the plaintiff's recovery on the ground of excessiveness. In these circumstances we do not hesitate to reinstate the verdict of the jury and the judgment entered thereon.

Reversed.

ZENOFF, C.J., and BATJER and GUNDERSON, JJ., concur.

MOWBRAY, Justice (dissenting).

Respectfully, I dissent.

It is axiomatic that a trial judge has the power to review the evidence and draw reasonable inferences therefrom in passing on the question whether a jury has awarded excessive damages in a trial heard before him. Collins v. Lucky Mkts., Inc., 274 Cal.App.2d 645, 79 Cal.Rptr. 454 (Cal.App.1969), and Gordon v. Strawther Enterprises, Inc., 273 Cal.App.2d 504, 78 Cal.Rptr. 417 (Cal.App...