Kraas v. American Bakeries Co.

• Decision Date: 31 October 1935
• Docket Number: 6 Div. 782
• Citation: Kraas v. American Bakeries Co., 231 Ala. 278, 164 So. 565 (Ala. 1935)
• Parties: KRAAS v. AMERICAN BAKERIES CO. et al.
• Court: Alabama Supreme Court

164 So. 565

231 Ala. 278

KRAAS v. AMERICAN BAKERIES CO. et al.

6 Div. 782

Supreme Court of Alabama

October 31, 1935

Rehearing Denied Dec. 12, 1935

Appeal from Circuit Court, Jefferson County; J.F. Thompson, Judge.

Action for damages by Annie Kraas against the American Bakeries Company and P.B. Smiley. From a judgment overruling motion for new trial, plaintiff appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

John W Altman and Edgar Allen, both of Birmingham, for appellant.

Lange Simpson & Brantley, of Birmingham, for appellees.

KNIGHT Justice.

Suit by plaintiff in the court below, appellant here, to recover damages for personal injuries received by her as the proximate result of alleged negligence of the defendants in the operation of a motor vehicle, to wit, a truck.

The issues were tried by a jury, and a verdict in the sum of $485 was returned in favor of the plaintiff.

Subsequently and within thirty days after the rendition of the judgment on the verdict, the plaintiff moved for a new trial.

One of the grounds for a new trial was that the damages awarded the plaintiff were grossly inadequate.

The third and fourth grounds of the motion were predicated upon the action of the court in giving, at the request of defendants, charges numbered 12 and 14. These charges instructed the jury that they could not award the plaintiff any damages to compensate her for doctors' bills paid by her, or for "medicines or hospital expenses."

The injuries catalogued by the plaintiff in her complaint were many and severe, and we may here say that the evidence on that particular question shows beyond any sort of doubt, that the plaintiff's injuries were many, and painful, and serious. We will hereafter refer more particularly to the evidence on this particular phase of plaintiff's case.

The questions of the defendants' negligence, and their consequent liability to respond therefor, were determined against them by the verdict of the jury.

When the motion, after a number of continuances, came on to be considered, the court, over objection and exception of plaintiff, permitted the defendants, through their attorneys, to file in the cause, the following paper, expressing their consent for an additur of damages by the court: "Comes the defendant in the above cause, by its attorneys, and consents that the original judgment in this cause may be increased by the trial court from the sum of $485.00 to the sum of $688.45, and agrees to pay into court said sum together with interest thereon from the date of the original judgment in said cause."

This instrument is signed by the attorneys for "defendant."

It may be here noted that the original suit was against the American Bakeries Company and "John Doe whose name is otherwise unknown to plaintiff." Thereafter, however, the complaint was amended by striking John Doe as a party defendant, and adding P.B. Smiley as a defendant.

In passing upon the motion for a new trial, the judge of said court filed an opinion and order as follows:

"Upon the trial of this cause the plaintiff offered oral testimony as to the money she expended for doctors' bills and for medicine and hospital services, but she did not offer evidence that these charges were reasonable, and for this reason the court, at the written request of the defendant, gave to the jury the following written charges: "12. If you believe the evidence, you can award plaintiff no damages to compensate her for doctors' bills.

"14. If you believe the evidence you can award the plaintiff no damages to compensate her for medicines or hospital expenses.

"On the trial of this cause the defendant had filed interrogatories to the plaintiff under the statute, and among other things in these interrogatories, were questions relative to the cost to plaintiff of her doctors' bills, medicine and hospital service, and these interrogatories were answered by the plaintiff, and the answers to these interrogatories were offered in evidence by the defendant.

"At that time the court had not had called to its attention a decision of the Supreme Court holding that where the defendant offered in evidence answers of plaintiff to interrogatories which included the cost of doctors' bills and medicine and hospital expense that this constituted some evidence for consideration by the jury. When this decision was called to the attention of the court at a hearing of this motion for a new trial, the court stated to the defendant that unless it consented to the correction of this judgment by increasing it to the highest amount shown by either the oral testimony or the plaintiff's answers to defendant's interrogatories, the court would grant plaintiff's motion for a new trial because of the court's error in giving to the jury the two charges above quoted.

"The defendant as of this the 15th day of September, 1934, having filed in this court its written consent that said judgment by (be) corrected by increasing it in the sum of $203.45, this being the highest amount shown by the testimony. The plaintiff objected to the filing by the defendant of its written consent that the judgment be corrected in the amount above stated, and the court overruled said objection, and the plaintiff, then and there, duly and legally excepted.

"It is therefore ordered by the court, and it is the judgment of the court, that the said judgment be, and the same is hereby, corrected and amended so that the said judgment shall be in the sum of $688.45 as of the date said judgment was originally rendered, and the said judgment having been so corrected so as to include therein the largest sum which could have been awarded by the jury, had the matter of doctors' bills, medicine and hospital service been submitted to them, and the court being of the opinion that error committed in giving the two written charges above set out is thereby cured, and it is further ordered by the court and it is the judgment of the court that the motion of the plaintiff for a new trial in said cause be, and the same is hereby overruled, and the plaintiff duly and legally excepted."

The court, of course, committed manifest error to the prejudice of the plaintiff, under the evidence in the case, in withdrawing from the jury, as elements of recoverable damage, the amounts expended by plaintiff in doctors' bills, medicine, and hospital services. Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447; Newton v. Altman, 227 Ala. 465, 150 So. 698.

So, then, when the case came on for hearing on plaintiff's motion for new trial, which motion having been duly continued from time to time by proper orders of the court, thus keeping the case within the power of the court, the court was confronted with at least two errors. These errors called for correction, which could only be made by granting plaintiff's motion for a new trial, or, if within the power of the court to do so, by increasing the judgment to an amount to include the expenses incurred by the plaintiff in doctors' bills, medicine, and hospital service, as shown by the evidence. The court, as above seen, resorted to the last alternative.

It is here earnestly insisted that the court was without power to increase the judgment, and that it could only correct the error by granting a new trial.

This case thus presents the interesting question as to the right of a trial court, under our system of laws, with the consent of the defendant, to increase the judgment, by including therein certain items of damages, which the evidence shows were certain, and capable of being measured by a fixed and exact standard.

Of course, there is a difference between cases of damages which may be certainly seen, and such as are ideal as between assumpsit, trespass for goods where the sum and value may be measured by a fixed standard, and actions of imprisonment, malicious prosecution, libel and slander, and other personal torts, where the damages are matter of opinion, speculative, ideal. Beardmore v. Carrington, 2 Wils. 244, 248. In the latter cases, the amount of damages being uncertain, their assessment must be left to the jury, with the inherent right, as well as statutory authority, in the court to grant a new trial when the court, from the evidence, is convinced that, after allowing all reasonable presumptions in favor of the jury's verdict, it is clearly wrong and unjust from any cause, whether by reason of passion and bias, or from mistake, inadvertence, or failure to comprehend and appreciate the issues. Mayne's Treatise on Damages, 572, 573, citing Chitty's Practice (14th Ed.) p. 1326.

In the case of Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150, the Supreme Court of the United States, by a closely divided court--five to four--reviewing the judgment of the Circuit Court of Appeals (First Circuit), 70 F. (2d) 558, held that a Federal District Court of Massachusetts had no authority to increase, with consent of the defendant, and against the objection of the plaintiff, a judgment awarding plaintiff damages in a personal injury suit. However, the opinion of that court reflected the views only of a bare majority of the court, as Chief Justice Hughes and Justices Brandeis, Stone, and Cardozo dissented; Justice Stone writing a vigorous dissenting opinion upholding the trial court in making the order directing the increase in the amount of damages awarded by the jury.

It was the contention of the majority that the action of the District Court was in violation of the Seventh Amendment to the Federal Constitution, which reads: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be...