Hoague v. Cota, 403-80

• Docket Nº: No. 403-80
• Citation: 442 A.2d 1282, 140 Vt. 588
• Case Date: February 02, 1982
• Court: United States State Supreme Court of Vermont

Page 1282

442 A.2d 1282 140 Vt. 588 Jean E. HOAGUE
v.
Shirley T. COTA. No. 403-80. Supreme Court of Vermont. Feb. 2, 1982.

[140 Vt. 590] William J. Bloomer of Bloomer & Bloomer, Rutland, for plaintiff.

J. Fred Carbine, Jr., and Edward R. Seager, Rutland, for defendant.

Before [140 Vt. 588] BARNEY, C. J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.

Page 1283

[140 Vt. 590] UNDERWOOD, Justice.

The jury awarded plaintiff $1,375 on her personal injury negligence claim which arose when the automobile in which she was a passenger collided with an automobile driven by the defendant. Plaintiff, insisting that the verdict was grossly inadequate, moved pursuant to V.R.C.P. 59 for a new trial on the issue of damages, or in the alternative, for a new trial on all issues.

The trial court denied plaintiff's motion "provided that Defendant shall on or before ten days from the date of entry of [140 Vt. 591] this Order file a written acceptance of an addition to the verdict herein in the amount of $625, for a total amended verdict and judgment in the amount of $2,000. If said acceptance is not so filed, Plaintiff's Motion for a New Trial is hereby granted as to all issues." Order dated November 17, 1980.

Though the defendant did not file a written acceptance of the additur, she did tender two checks totalling $2,000 to plaintiff's attorney, who returned them after filing notice of appeal on behalf of the plaintiff. We deem the plaintiff to have waived any claim that defendant's acceptance of additur was irregular by bringing this appeal.

Plaintiff appeals on two grounds. First, she argues that a new trial should be mandatory when the jury's verdict for unliquidated damages is found by the trial court to be inadequate. Secondly, she argues that the trial judge confused the jury by re-reading the portion of the instructions explaining how to calculate future damages after the jury requested "a reading on judge's charge in relation to the disability."

We find neither argument persuasive and therefore affirm.

I.

V.R.C.P. 59(a) provides:

The court before which an action has been tried may on motion grant a new trial ... for any of the reasons for which new trials ... have heretofore been granted in actions at law ... in the courts of this state.

Among the reasons long held to be an acceptable ground for a new trial is that the jury's award of damages was inadequate. Collins v. Fogg, 109 Vt. 433, 435, 199 A. 251, 252 (1938). A motion for a new trial rests solely within the sound discretion of the trial court, V.R.C.P. 59(a), and will not be reversed on appeal, unless an abuse of discretion is shown. See, e.g., O'Neil v. Buchanan, 136 Vt. 331, 333, 388 A.2d 431, 433 (1978); Pettingill v. Kelton, 124 Vt. 472, 475, 207 A.2d 245, 248 (1965).

V.R.C.P. 59(a), in an innovation borrowed from its Maine counterpart, imposes a condition on the judge's discretion to grant a new trial for inadequate damages, regardless of whether the claim was liquidated or unliquidated:

[140 Vt. 592] A new trial shall not be granted solely on the ground that the damages are inadequate until the defendant has first been given an opportunity to accept an addition to the verdict of such amount as the court deems to be reasonable.

Plaintiff, whose arguments omit any reference to V.R.C.P. 59, argues for a rule requiring an automatic new trial upon a finding that the damages for an unliquidated claim are inadequate. He cites us to Collins v. Fogg, supra, for the proposition that this Court has recognized the propriety of a new trial as a remedy for inadequate damages and to Pettingill v. Kelton, supra, as our recognition of the potential danger of additur. He then urges us to adopt the "general rule" that...