Hert v. City Beverage Co.

• Decision Date: 09 January 1959
• Docket Number: No. 34424,34424
• Citation: 94 N.W.2d 27,167 Neb. 557
• Parties: Herman HERT, Appellant, v. CITY BEVERAGE CO., Inc., a corporation, Leo Dahir, d/b/a City Beverage Co., and Frank Tomes, Appellees.
• Court: Nebraska Supreme Court

Page 27

94 N.W.2d 27

167 Neb. 557

Herman HERT, Appellant, v. CITY BEVERAGE CO., Inc., a corporation, Leo Dahir, d/b/a City Beverage Co., and Frank Tomes, Appellees.

No. 34424.

Supreme Court of Nebraska.

Jan. 9, 1959.

Syllabus by the Court

1. In a case where the trial court sets aside a verdict, granted a new trial, and gives no reason for so doing, and appeal is taken therefrom, the appellant meets the duty placed upon him when he brings the record here with his assignments of error and submits the record to critical examination with the contention that there was no prejudicial error. The duty then rests upon the appellee to point out what he contends is prejudicial error justifying the decision of the trial court. The appellant then in reply has the right of meeting the contention of the appellee.

2. Before an error requires a reversal it must be determined that it was prejudicial to the rights of the party against whom it was made.

3. Where a party has sustained the burden and expense of a trial and has succeeded in securing the verdict of a jury on the facts in issue, he has a right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it was secured.

4. Where a verdict in an action for damages is excessive and it appears to have been returned under the influence of passion and prejudice rather than on facts or that the jury misapplied the law, it is the duty of the court to set aside the verdict and grant a new trial.

5. The question of the amount of damage is one solely for the jury and its action in this respect will not be disturbed on appeal if it is supported by evidence and bears reasonable relationship to the elements of injury and damage proved.

6. There is no established monetary measure for pain and suffering.

7. If a jury has considered the duration and severity of pain and suffering and has manifested by verdict a reasonable attitude thereto in fixing damages, the verdict will be upheld on appeal.

Matthews, Kelley & Stone, Martin Cannon, Omaha, for appellant.

Crawford, Garvey, Comstock & Nye, Bryce Crawford, Jr., Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action for damages by Herman Hert, plaintiff and appellant, against City Beverage Co., Inc., a corporation, Leo Dahir, doing business as City Beverage Co., and Frank Tomes, defendants. It developed on the trial that there was no corporation, hence the true defendants are Dahir and Tomes. These two defendants are appellees. The action was based directly upon a charge of negligence against the defendant Tomes who was at the time in the employ of the defendant Dahir. It is clear that Tomes was at the time an employee of Dahir and if Tomes was liable Dahir was also liable under the theory of respondeat superior. This is not questioned. Further mention will not be required herein of Dahir, therefore Hert will be hereinafter referred to as plaintiff and Tomes as defendant.

The case was tried to a jury and a verdict was returned in favor of plaintiff and against the defendants for $4,399.97. Judgment was rendered on the verdict. A motion for new trial was duly filed which was sustained. From the order sustaining the motion for new trial the plaintiff has appealed.

For the purposes of this opinion, although the entire verdict was set aside, only the $4,000 portion requires discussion. This amount represents, as is indicated by arguments in the briefs, what was allowed for personal injuries and the appeal is thereto related. The balance represents an amount allowed for other damages concerning which there is no dispute.

The order setting aside the verdict does not contain any reasons therefor. It is true that the plaintiff was given leave on February 3, 1958, which was 7 days after the ruling on the motion for new trial, to make as part of the bill of exceptions a memorandum of the trial judge addressed to the attorneys for the parties in which was set forth grounds for setting aside the verdict. The memorandum however was never incorporated in the bill of exceptions.

The case therefore comes here as one wherein no reasons appear in an order for setting aside the verdict and granting a new trail. The rule to be observed in presenting the appeal is the following: 'If the trial court gave no reasons for its decision, then the appellant meets the duty placed upon him when he brings the record here with his assignments of error and submits the record to critical examination with the contention that there was no prejudicial error. The duty then rests upon the appellee to point out the prejudicial error that he contends exists in the record and which he contends justifies the decision of the trial court. The appellant then in reply has the right, if he desires, of meeting those contentions.' Greenberg v. Fireman's Fund Ins. Co., 150 Neb. 695, 35 N.W.2d 772, 775. See, also, Fuss v. Williamson, 159 Neb. 525, 68 N.W.2d 139; Gain v. Drennen, 160 Neb. 263, 69 N.W.2d 916; Wright v. Lincoln City Lines Inc., 163 Neb. 679, 81 N.W.2d 170.

The plaintiff sets forth one assignment of error as follows: 'The Court erred in sustaining the defendant's motion for a new trial.' The substance of the argument in support of the assignment is that plaintiff testified that he was injured; a policeman testified that plaintiff complained of injury at the scene, and the police report so shows; the doctor who attended plaintiff 2 days later said plaintiff was permanently injured; a consultant orthopedist said plaintiff was injured; a doctor called as a witness by the defendant admitted that previously he had diagnosed a lumbo-sacral strain and that plaintiff was injured, but disputed only the severity of the injury; and that there was no testimony that he was not injured, on account of all of which a verdict of $4,000 for general damages could not be regarded as excessive. The argument as it pertains to injury directs attention to particular evidence in the bill of exceptions. Support for the argument is found in the evidence to which attention has been directed. This support, except as to that given by the plaintiff, is in the nature of opinions based upon subjective symptoms rather than upon objective findings.

On his part the defendant presents in his brief only the question of whether or not the verdict was so excessive as to...