Maier v. Holzer, 8033

• Decision Date: 25 July 1963
• Docket Number: No. 8033,8033
• Parties: Herman J. MAIER, Florence Maier, and Herman J. Maier as Guardian ad Litem of Patricia Maier, Darlene Maier, Connie Lou Maier, Donald Maier and Douglas Maier, Minors, Plaintiffs, and Florence Maier, Plaintiff and Respondent, v. Anton HOLZER, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 29

123 N.W.2d 29

Herman J. MAIER, Florence Maier, and Herman J. Maier as

Guardian ad Litem of Patricia Maier, Darlene

Maier, Connie Lou Maier, Donald Maier and Douglas Maier, Minors, Plaintiffs, and Florence Maier, Plaintiff and Respondent, v. Anton HOLZER, Defendant and Appellant.

No. 8033.

Supreme Court of North Dakota.

July 25, 1963.

Syllabus by the Court

1. Where the evidence discloses that damages awarded by a jury are inadequate to a degree incommensurate with substantial justice, the trial court may grant a new trial on the ground of insufficiency of the evidence to justify the verdict.

2. Whether a new trial should be granted because of inadequate damages presents a question which lies primarily within the discretion of the trial court and his decision upon that question will not be disturbed except for an abuse of discretion.

3. Error that is not prejudicial is not reversible error.

Adam Gefreh, Linton, for defendant and appellant; Dale H. Jensen, Sp. Asst. Atty. Gen., Bismarck, of counsel.

Vogel, Ulmer & Bair, Mandan, for plaintiff and respondent.

MORRIS, Chief Justice.

This is an action for damages growing out of an automobile accident. The plaintiffs allege that their damages resulted from the negligence and carelessness of the defendant, Anton Holzer, in operating an automobile. The defendant answers by way of general denial and further alleges contributory negligence on the part of the plaintiff Herman J. Maier, who at the time of the accident was driving an automobile in which the other plaintiffs were riding.

The answer alleges that the injuries to the plaintiffs were directly and proximately caused by the negligence and unlawful operation of an automobile driven by the plaintiff Herman J. Maier.

The jury returned a verdict dismissing the action of Herman J. Maier and rendered a verdict against the defendant in favor of Florence Maier for $300, and in favor of the guardian of the minor children for $1,200. A motion of Herman J. Maier for a new trial was denied, and no appeal taken. The judgment in favor of the guardian was not challenged.

The plaintiff Florence Maier moved the trial court for an additur in the amount of an additional sum of $2,500, over and above the verdict returned in her favor, upon the ground that the amount of the verdict is grossly inadequate. A new trial is asked upon the issue of damages only. After hearing the motion, the court ordered:

'* * * that the motion of Florence Maier for a new trial on the issue of damages only is granted; however, such motion is conditional that if defendant shall consent and stipulate and shall within fifteen (15) days execute and deliver to plaintiff's attorneys a stipulation consenting that the verdict be increased in the sum of Two Thousand Five Hundred and no/100 ($2,500.00) Dollars, and the total verdict in the case raised to the sum of Two Thousand Eight Hundred and no/100 ($2,800.00) Dollars, then, and in such case, the said motion of the plaintiff Florence Maier shall be denied.'

The order is dated February 9, 1962, and was served on the defendant on February 15. An appeal from the order by the defendant was perfected March 22, 1962. The defendant did not consent to the additur.

In challenging the correctness of the order, the appellant presents three issues: (1) that the trial court committed prejudicial error in holding that the verdict is not justified by the evidence; (2) that the court erred in granting plaintiff Florence Maier's motion for a new trial on the issue of damages; and (3) that the trial court committed prejudicial error in granting the plaintiff an additur as a condition for denying a new trial. The first two issues are one in substance and will be considered as such. They present the question of the sufficiency of the evidence to sustain the verdict of the jury as against the trial court's determination that the verdict of the jury was inadequate under the evidence.

In Haser v. Pape, 78 N.D. 481, 50 N.W.2d 240, we said:

'Where the evidence discloses that damages awarded by a jury are inadequate to a degree incommensurate with substantial justice, the trial court may grant a new trial on the theory that the verdict was not justified by the evidence.'

In Deschane v. McDonald, N.D., 86 N.W.2d 518, we held that whether a new trial should be granted because of inadequate damages presents a question which lies primarily within the sound discretion of the trial court and his decision upon that question will not be disturbed except for an abuse of discretion. We also said:

'The granting of such a new trial should be considered with the utmost caution.'

In California, as in North Dakota, statutory provisions prescribing grounds for a new trial do not expressly include the ground of inadequacy of damages, but it is held that a new trial may be granted upon the ground of insufficiency of the evidence for the reason that damages awarded by the jury are inadequate. Legg v. Mutual Benefit Health and Accident of Omaha, 136 Cal.App.2d 887, 289 P.2d 550, 290 P.2d 87; Miller v. Atchison, Topeka & Santa Fe Ry. Co., 166 Cal.App.2d 160, 332 P.2d 746. These cases also hold that the determination of the trial court granting a new trial on the ground of inadequacy of damages will not be disturbed on appeal unless an abuse of discretion clearly appears.

Florence Maier, with other members of her family who were injured in the accident, was taken to a hospital at Linton, North Dakota, immediately following the accident, where she was attended by Dr. Orchard. He testified that Mrs. Maier received treatment for abrasions of both knees, that her left shoulder and the left side of her head had received a considerable amount of trauma; there were large bruisings; there was soreness in the area of the upper left mandibular joint. She was X-rayed and found to have a depressed fracture of the zygomatic arch, which is the rounded cheekbone. She was in the hospital at Linton for two days following the accident and then transferred to the care of Dr. Vinje, an orthopedic surgeon, in Bismarck.

The parties stipulated the testimony of Dr. Vinje, which shows that Mrs. Maier was referred to him on November 2, 1959, because of an injury to the left side of her face; she was given an anaesthetic on November 4, at which time the depressed fracture of the cheekbone was elevated through an open incision in her face. After two days, she was referred to Dr. Orchard at Linton for further care.

The plaintiff Florence Maier testified that she was at the St. Alexius Hospital at Bismarck, where she received the treatment described by Dr. Vinje; that she had a broken bone in her face, which the doctor...