Lipshay v. Barr, 34867
| Decision Date | 21 May 1959 |
| Docket Number | No. 34867,34867 |
| Citation | 54 Wn.2d 257,339 P.2d 471 |
| Parties | Jack LIPSHAY and Evelyn Lipshay, his wife, Appellants, v. Annabelle E. BARR, Respondent. |
| Court | Washington Supreme Court |
Zundel, Merges, Brain & Isaac, Seattle, for appellants.
Ferguson & Burdell, Seattle, for respondent.
This is a personal injury action, in which the jury was instructed to return a verdict for the plaintiff. The jury awarded damages in the amount of two thousand dollars, whereupon the plaintiffs moved for a new trial on the issue of damages only, contending that the amount of the verdict was so inadequate that it could only have been the result of passion and prejudice. Error is assigned to the denial of this motion.
Granting or denying a new trial on the ground of inadequacy of damages is peculiarly within the discretion of the trial judge, and the supreme court will not disturb his ruling in the absence of a manifest abuse of discretion. Hopper v. Gallant, 46 Wash.2d 552, 282 P.2d 1049.
The plaintiffs' evidence tended to show that the plaintiff wife had suffered a whiplash injury when the automobile in which she was riding was stopped at an intersection and was struck from the rear by the automobile driven by the defendant. The defendant's automobile was traveling at such a low rate of speed that the plaintiffs' automobile was undamaged, and the impact caused it to move about four inches only.
The plaintiffs' evidence of special damages totaled $2,007.26. It is urged that since this amount was greater than the verdict, the jury necessarily made no award for pain and suffering, and its verdict must have been the result of passion and prejudice, and that the trial court therefore abused its discretion in denying the motion for a new trial.
Had the evidence of special damages been uncontroverted, the argument of the plaintiffs would be highly persuasive. See Swanson v. Sewall, 183 Wash. 462, 48 P.2d 939, a case wherein the plaintiff wife, as a result of the defendants' negligence, had suffered injuries which caused her to be confined to her bed for five weeks, during which time she incurred certain medical expenses which, added to the amount of her lost wages, exceeded the amount of the verdict. Quoting from Daigle v. Rudebeck, 154 Wash. 536, 282 P. 827, 828, this court said:
'It will be seen that the amount awarded by the verdict is almost the exact amount which the jury was instructed might be allowed as special damages, a little...
To continue reading
Request your trial
-
Cox v. Charles Wright Academy, Inc.
...Rainier Brewing Co., 64 Wash.2d 357, 391 P.2d 960 (1964); Durkan v. Leicester, 62 Wash.2d 77, 381 P.2d 127 (1963); Lipshay v. Barr, 54 Wash.2d 257, 339 P.2d 471 (1959). One additional point merits discussion. Defendants object to the trial court considering a juror's affidavit which (T)he v......
-
Balandzich v. Demeroto
...may grant relief on the basis of the discretion so abused. See Cowan v. Jensen, 79 Wash.2d 844, 490 P.2d 436 (1971); Lipshay v. Barr, 54 Wash.2d 257, 339 P.2d 471 (1959); Hopper v. Gallant, 46 Wash.2d 552, 282 P.2d 1049 (1955). The appeal record shows plaintiffs made a motion for new trial ......
-
Palmer v. Jensen
...of child's services in wrongful death case where paucity of testimony bearing upon the value of the boy's services); Lipshay v. Barr, 54 Wash.2d 257, 339 P.2d 471 (1959) (no award for pain and suffering where jury could reasonably infer injury was not as serious as contended and portion of ......
-
Dao v. Progressive Northern Insurance Company, Inc., No. 55987-7-I (WA 8/22/2005), 55987-7-I
...that the Palmer court's dissimilar treatment of Palmer and her child is internally inconsistent and inconsistent with Lipshay v. Barr, 54 Wn.2d 257, 339 P.2d 471 (1959). But, as the Palmer court held, the adequacy of the verdict depends on the evidence. Palmer, 132 Wn.2d at 201. The Palmer ......