Meissner v. Smith

• Decision Date: 06 March 1972
• Docket Number: No. 10838,10838
• Citation: 94 Idaho 563,494 P.2d 567
• Parties: Ray MEISSNER and Elaine Meissner, husband and wife, Plaintiffs-Appellants and Cross-Respondents, v. Claude Edward SMITH and Bernard J. Wetzstein, Defendants-Respondents and Cross-Appellants.
• Court: Idaho Supreme Court

Page 567

494 P.2d 567

94 Idaho 563

Ray MEISSNER and Elaine Meissner, husband and wife, Plaintiffs-Appellants and Cross-Respondents, v. Claude Edward SMITH and Bernard J. Wetzstein, Defendants-Respondents and Cross-Appellants.

No. 10838.

Supreme Court of Idaho.

March 6, 1972.

Hepworth, Walker, Nungester & Felton, Buhl, for appellants and cross respondents.

Merrill & Merrill, Pocatello, and Benoit, Benoit & Alexander, Twin Falls, for respondents-cross appellants.

SHEPARD, Justice.

This appeal results from an action brought by the Meissners for the wrongful death of their minor son. Following trial, the jury returned a verdict in favor of the plaintiffs. The trial court thereafter ordered a new trial unless plaintiffs would agree to a reduction of the verdict by approximately 50%. Plaintiffs appeal from that order of the trial court and defendants cross-appeal from the denial of their motion for a new trial. We reverse the action of the trial court in reducing the verdict and affirm the action of the trial court in its denial of cross-appellants' motion for a new trial.

Gary Meissner, the 16 year, 11 month old son of the plaintiffs had been working for the defendant Smith baling and loading straw. The straw bales were stacked on a truck about six bales high on the truck bed and to a height of two bales on a platform above the cab of the truck known as the over-shot. The bales, contrary to the usual custom of Smith, were not tied down. The truck was driven by Defendant Smith, and Meissner and a companion were sitting upon the bales on the over-shot platform. As Smith was driving on a county road at a speed of approximately 40 to 50 miles per hour, he observed the defendant Wetzstein pull onto that same road from a lane approximately 310 feet in advance of the Smith truck. Smith evidently jammed on his brakes, leaving skidmarks approximately 74 feet in length. Both Meissner and his companion fell off the truck and Meissner later died of his injuries.

At trial the parents of Meissner secured a jury verdict of $71,335.35. Upon defendants' motion for a new trial, the trial court held that the verdict was excessive and entered an order granting a new trial in the absence of plaintiffs filing a remittitur on all of the verdict in excess of $39,335.35.

That action of the trial court was oral in nature but is shown by an affidavit by counsel for plaintiffs. Defendants do not seriously dispute that the allegations of plaintiffs' counsel are in fact correct. It appears that the action of the trial court was based upon the decision of Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950) with certain modifications thereto. The trial court herein evidently believed that the decision in Checketts set forth a maximum allowable verdict of $20,000 for the death of a minor child. The trial court herein raised that $20,000 figure to a 1970 value by application of an inflation rate. Plaintiffs-appellants herein have assigned the reduction of the jury verdict as error.

It is thus apparent that we must examine Checketts and determine if the reasoning and results thereof should be held valid and applicable to the case at bar. Defendants-respondents herein strongly urge that a limit on the amount which may be awarded for the death of a minor child in the State of Idaho has been set by Checketts and should be continued.

In Checketts the trial court had ruled that a $40,000 jury verdict for the death of plaintiffs' nine-year old son was 'unreasonably excessive' and upon motion therefor had granted a new trial. On appeal the order of the trial court was affirmed in finding the verdict excessive but the case was remanded for the conditional granting of a new trial if plaintiffs refused a remittitur on all that portion of the verdict exceeding $20,000. Thus the trial court in the case at bar had ample basis for holding that in Idaho a verdict for the death of a minor child which exceeded $20,000 and excessive as a matter of law.

I.C. § 5-310 provides in pertinent part:

'The parents may maintain an action for the injury or death of a minor child, and a guardian for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another * * *. Such action may be maintained against the person causing the injury or death * * *.'

I.C. § 5-311 provides in pertinent part:

'* * *. In every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just.'

The above statutes clearly enunciate a legislative policy that the only limitation to be assigned to the amount of recovery is that amount 'under all the circumstances of the case (as) may be just.'

It has been stated '(the) Amount of damages is a question of fact, which is for the jury in the first instance and secondly for the trial judge on a motion for a new trial.' Blaine v. Byers, 91 Idaho 665, 670, 429 P.2d 397, 402 (1967).

It is also stated 'On the other hand, however, the trial judge should not substitute his opinion on the amount of damages for that of the jury. (Citations omitted) Additionally, the general rule which prevails in this jurisdiction is that a motion for a new trial should not be granted unless it appears that a different result would follow a retrial.' Blaine v. Byers, supra, at 671, 429 P.2d at 403. In the case at bar it does not appear that the trial court held the verdict of the jury was excessive in that the evidence did not sustain the amount of the award. Rather, it is reasonably clear that the trial court held that the verdict was excessive in that the verdict exceeded the maximum previously set forth by this court in Checketts. It is also clear, as above stated, that the legislature intended that the verdict in each case for wrongful death should be weighed against the circumstances peculiar to that case and that the trial court should act to reduce a jury verdict only when it is not 'just' considering all the circumstances. This court should not and will not abrogate the legislative policy by an arbitrary imposition of a limitation upon the amount which may be awarded by a jury when such amount is not excessive as a matter of fact considering all the circumstances attendant thereto.

Therefore, any language in Checketts which might tend to support a contrary conclusion to that expressed herein is overruled. While it is our belief that the trial court in the case at bar ruled that the application of Checketts controlled his actions and required him therefore to reduce the jury award, we cannot and do not say that the trial court based his actions solely on that interpretation of Checketts. We therefore reverse the action of the trial court in reducing the jury verdict and remand this aspect of the case for a finding and holding by the trial court determining whether under all the circumstances of the instant case alone, the verdict of the jury was excessive in that the evidence did not sustain the amount of the award. No new trial is necessary herein as there is at present ample testimony of the relative status of the deceased child and his parents, their earning capacities both at the time of death and estimated in the future, and the probability of contributions from the child to his parents during their respective lieftimes. Upon these factors, the trial court has ample evidence upon which to base his determination as to whether or not the jury verdict was excessive.

Plaintiffs-appellants have cited a large number of cases from foreign jurisdictions in which large verdicts were awarded for the death of a minor as tending to support their contention that the jury verdict was not excessive as a matter of fact. However, examination of those cases to determine if the jury verdict in the instant case was excessive would not be appropriate. Many of those awards from foreign jurisdictions are based on differing standards of compensations and the factual situations, while analogous, are not identical. Such cases, while they may be valuable in identifying the trend of jury verdicts in cases involved in the death of minors, should not be held as determinative as amounts to be allowed in this jurisdiction. Hubble v. Record, 80 Idaho 403, 331 P.2d 270 (1958); Garrett v. Taylor, 69 Idaho 487, 210 P.2d 386 (1949). As was stated in Garrett:

'A comparison of the facts of this case with the numerous other cases involving a challenge to the amount of the verdict would be of little assistance. Each case must rest upon its own particular facts and the sound and impartial discretion of the jury and the trial judge.' 69 Idaho 487, 490, 210 P.2d 386, 388.

We turn now to the cross-appeal of defendants and cross-appellants. Both defendants assign error to the trial court's denial of their motion for a new trial. Their grounds therefor are allegations that the jury verdict was excessive and that the evidence was insufficient to justify such a verdict.

This court has many times said, and most recently in Rosenberg v. Toetly, 93 Idaho 135, 138, 456 P.2d 779, 782 (1969); and Blaine v. Byers, 91 Idaho 665, 671, 429 P.2d 397, 403 (1967):

'* * * this court is firmly committed to the rule that a trial court possesses a discretion to be wisely exercised in granting or refusing to grant a new trial and that such discretion will not be disturbed on appeal unless it clearly appears to have been exercised unwisely and to have been manifestly abused.' (Emphasis in original)

Defendants and cross-appellants nowhere point out specifically where the evidence is insufficient to justify the verdict rendered herein. The evidence, although controverted at times, is adequate to support a verdict for plaintiffs. As aforesaid the determination of the amount of the award is reserved for the trial court upon remand.

Defendant and cross-appellant Smith further asserts that the trial court erred in refusing to grant his motion to amend his answer to add the affirmative defense of...