Johnson v. Howard

• Decision Date: 22 October 1954
• Docket Number: No. 32731,32731
• Citation: 275 P.2d 736,45 Wn.2d 433
• Court: Washington Supreme Court
• Parties: Richard F. JOHNSON and Mae E. Johnson, his wife, Appellants, v. Ted HOWARD and Jane Doe Howard, his wife, and Palmer Electric Company, a corporation, Respondents.

Page 433

45 Wn.2d 433

275 P.2d 736

Richard F. JOHNSON and Mae E. Johnson, his wife, Appellants, v. Ted HOWARD and Jane Doe Howard, his wife, and Palmer

Electric Company, a corporation, Respondents.

No. 32731.

Supreme Court of Washington, En Banc.

Oct. 22, 1954.

Rehearing Denied Dec. 14, 1954.

Kennett, McCutcheon & Soderland, Seattle, for appellants.

Rode, Cook, Watkins & Orth, Seattle, for respondents.

HAMLEY, Justice.

Plaintiffs brought this action to recover damages in the sum of $81,860.26, alleged to have been sustained in an automobile accident. The jury returned a verdict for plaintiffs in the sum of $37,092.95. The trial court denied defendants' motion for judgment n. o. v., but granted their alternative motion for a new trial. Plaintiffs appeal.

Appellants are husband and wife. The accident occurred at 5:45 p. m. on January 8, 1952, at the intersection of northeast Eighth street and 108th avenue northeast, near Bellevue, Washington. Immediately prior to the accident, appellants were driving in a westerly direction on northeast Eighth street, which is an arterial highway. Respondent Ted Howard was traveling in a northerly direction on 108th avenue northeast, which is not an arterial highway. Howard failed to stop his automobile before entering the intersection, and the collision resulted.

As required by Superior Court Rule 16, 34A Wash.2d 117, there is set forth in the order granting a new trial definite reasons of law and fact for so doing. The assignments of error bring into question each of the reasons so given.

We start with the recognized principle that an order granting or denying a new trial is not to be reversed, except for an abuse of discretion. Huntington v. Clallam Grain Co., 175 Wash. 310, 27 P.2d 583. This principle is subject to the limitation that, to the extent that such an order is predicated upon rulings as to the law, such as those involving the admissibility of evidence or the correctness of an instruction, no element of discretion is involved. Grant v. Huschke, 70 Wash. 174, 126 P. 416, overruled on another point in Larson v. City of Seattle, 25 Wash.2d 291, 171 P.2d 212; Hayes v. Sears, Roebuck & Co., 34 Wash.2d 666, 209 P.2d 468. A much stronger showing of an abuse of discretion will ordinarily be required to set aside an order granting a new trial than one denying it. McUne v. Fuqua, 42 Wash.2d 65, 253 P.2d 632.

One of the reasons given for granting the motion for a new trial in this case, and the one which seems to be primarily relied upon, is that the verdict was so grossly excessive as to unmistakably indicate that it was the result of passion or prejudice. The granting of a new trial for this reason is authorized by Rule 16(5), supra.

Prior to January 2, 1951, an order granting a motion for new trial on this ground would not have been reversed if there had been a case for the jury and any evidence on which the jury could have reached a verdict different from the one rendered. Coppo v. Van Wieringen, 36 Wash.2d 120, 217 P.2d 294. The reason we would not have reversed under such circumstances was, as stated in the Coppo case, that

'* * * our cases require us to assume (the trial judge having said that substantial justice had not been done and that the damages were inadequate--and either would be sufficient to require the assumption) that the trial judge was influenced by conditions existing and circumstances occurring during the trial which could not be made part of the record; and having made that assumption and having found that there was a case for the jury and that different verdicts as to damages were possible under the evidence, we must perforce say that there was no manifest abuse of discretion by the trial court and that his orders granting new trials are affirmed.' 36 Wash.2d at page 141, 217 P.2d at page 306.

On January 2, 1951, Rule 16, supra, became effective, requiring the trial court, in the order granting or denying a motion for a new trial, to give 'definite reasons of law and facts for so doing.' The prime purpose of this amendment was to lift the 'iron curtain', as we expressed it in the Coppo case, which prevented effective appellate review in cases where a new trial had been granted in jury cases on the ground of inadequate or excessive verdict or insufficiency of the evidence. See Mulka v. Keyes, 41 Wash.2d 427, 249 P.2d 972.

It is no longer necessary for us to assume that, where the trial judge has said that the damages were excessive (or inadequate), he was influenced by conditions existing and circumstances occurring during the trial, which could not be made part of the record. If he was actually so influenced, he is to say so in giving his reasons for granting a new trial. Where he does not say so, and even though he gives as an additional reason that substantial justice has not been done, it will be assumed that the justification for the action taken is to be found in the record. See Coppo v. Van Wieringen, supra, 36 Wash.2d at page 140, 217 P.2d at pages 305, 306.

The complaint states three causes of action. The first, as amended at the opening of the trial, is for personal injuries suffered by appellant husband (Johnson), and for special damages. The second is for personal injuries suffered by appellant wife. The third is for destruction of and damage to clothing, personal effects, and an automobile.

The trial court's determination that the jury award was so excessive as to unmistakably indicate passion or prejudice is directed against the awards under the first and third causes of action. Neither in the oral decision nor in the order granting the new trial is any question raised concerning the second cause of action, in which $35,000 was prayed for and $10,000 was awarded.

Turning to the first cause of action, the jury award was $26,259.52. Counsel for appellants had, in his argument to the jury at the close of the case, reduced the demand for damages as a result of personal injuries under the first cause of action from $45,000 to $25,000. It is therefore apparent that the verdict represents an allowance of $25,000 for personal injuries, and an allowance of $1,259.52 for special damages.

The testimony tending to support the $25,000 award for personal injuries, together with the reasonable inferences therefrom, may be summarized as follows: Johnson was forty-nine years of age at the time of the accident. He had a life expectancy of twenty-three years. He had been a gardener for thirty-two years, and his health prior to the accident had been 'very good.' The collision caused Johnson's car to overturn on a fire hydrant, and both Johnson and his wife were rendered unconscious. Dr. Gordon R. Dempsay examined him on the night of the accident and found him to be suffering from 'considerable contusions, [with a] more or less bruising effect.' He was not hospitalized overnight, and went to work the following day. He was unable to work, however, and stayed for only one hour. For the next six weeks, Johnson went to work each day, but, being unable to do his job, stayed for only one hour a day.

As time went on, Johnson's condition failed to improve. His neck and back continued to ache, and his heartbeat was well above normal. Two months after the collision, Dr. Dempsay sent Johnson to Dr. Leo J. Rosellini. It was then discovered that Johnson was suffering from a diffuse toxic goiter. He had lost twenty-five pounds in weight, showed marked nervousness, excessive generalized perspiration, and marked generalized weakness, especially in the calves of his legs.

Dr. Rosellini treated the patient for three months to prepare him for surgery. In June, 1952, he removed Johnson's thyroid gland. Two doctors testified that Johnson's thyroid condition was caused by the injuries received in the collision. Johnson was hospitalized for six days following the operation, and was convalescent for three weeks thereafter.

Johnson's condition at the time of the trial was shown to be as follows: Marked lordosis of the low back; a tilt of the neck column to the left; limitation of neck movement in forward bending; roughening of the disc spaces between cervical vertebrae numbers six and seven, indicating a sprain or whiplash injury; heartbeat above normal in spite of the thyroidectomy. Johnson testified that he suffers from pain in his back, neck, and head. He is unable to sleep on his back. His left arm movement is restricted by pain.

Johnson is presently taking physiotherapy treatments. These treatments consist of neck stretching by means of a halter, electrical treatments, certain exercises for his neck and manipulation of his neck. Dr. Gordon Blake O'Neil testified that Johnson's injuries were permanent, and would produce pain and discomfort in the future. Dr. O'Neil estimated Johnson's disability at the time of the trial at fifteen per cent.

There was no allegation or proof that Johnson had lost any income prior to the trial by reason of the injuries he had sustained. He had worked as gardener for Norton Clapp for fourteen years prior to the accident, and continued in this employment at the time of the trial. However, it was Johnson's testimony that he was, at the time of the trial, unable to work as before the accident, and that after each work day he suffers from extreme fatigue.

The only medical expert produced by respondents was Dr. Harold E. Nichols, an X-ray diagnostician. He had never personally seen or examined either of appellants, and had obtained from them no history as to their complaints. At the request of respondents, appellants submitted themselves to Dr. J. H. Berge for examination. Respondents did not call Dr. Berge as a witness. Counsel for appellants pointed out this fact to the jury in his closing argument. Respondents did not cross-examine Dr. Rosellini, nor did they cross- examine Johnson regarding the nature of his injuries or the extent of his disability.

The $25,000 award for personal injuries to Johnson was in the...