Mintun v. Moorman

• Court: Idaho Supreme Court
• Writing for the Court: MCNAUGHTON, Commissioner
• Citation: Mintun v. Moorman, 259 P. 1, 44 Idaho 658 (Idaho 1927)
• Decision Date: 01 August 1927
• Docket Number: 4699
• Parties: J. ELMER MINTUN and LUCY E. MINTUN, Respondents, v. D. B. MOORMAN, Appellant

259 P. 1

44 Idaho 658

J. ELMER MINTUN and LUCY E. MINTUN, Respondents, v. D. B. MOORMAN, Appellant

No. 4699

Supreme Court of Idaho

August 1, 1927

DAMAGES-HIGHWAYS-RECOVERY FOR INJURIES-EVIDENCE HELD SUFFICIENT-APPEAL AND ERROR-AWARD ON CONFLICTING TESTIMONY-DAMAGES NOT EXCESSIVE.

1. In action for damages for injuries resulting from automobile collision on public highway, evidence held sufficient to support judgment for plaintiff.

2. Award for personal injuries by jury on conflicting testimony will not be disturbed, in absence of showing or intimation that jury was actuated by bias or prejudice in assessing damages.

3 $1,117.31 for permanent injury to wrist, resulting from cutting and bruising forearm and dislocating wrist-bones held not excessive.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Action for damages. Judgment for plaintiffs. Affirmed.

Judgment affirmed, with costs to respondent. Petition for rehearing denied.

James R. Bothwell and W. Orr Chapman, for Appellant.

Where there is no substantial evidence to support the verdict of the jury, the same will be set aside. (Quayle v. Ream, 15 Idaho 666, 99 P. 707; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635; Spencer v. John, 33 Idaho 717, 197 P. 827; Harker v. Seawell, 35 Idaho 457, 206 P. 812; Clarke v. Blackfoot Water Works, 39 Idaho 304, 228 P. 326; Williams v. Skelton, 40 Idaho 741, 237 P. 412.)

Where the oral testimony of witnesses, based merely upon opinions or estimates, conflicts with physical facts, such evidence is not regarded as sufficient to create a substantial conflict in the evidence. (Austin v. Newton, 46 Cal.App. 493, 189 P. 471; Albrethsen v. Wood River Land Co., 40 Idaho 49, at 56, 231 P. 418.)

The damages awarded by the jury are excessive and not supported by the evidence. (Nelson v. Johnson, 41 Idaho 697, 243 P. 647.)

Turner K. Hackman, for Respondents.

This court has repeatedly held that the verdict of the jury will not be set aside while there is substantial evidence to support such verdict. (Roseborough v. Whittington, 15 Idaho 100, 96 P. 437; Valley Lumber Co. v. McGilvery, 16 Idaho 338, 101 P. 94; Duthie v. Shepherd, 32 Idaho 633, 186 P. 919; Allen-Wright Furniture Co. v. Hines, 34 Idaho 90, 200 P. 889.)

"There is no evidence or intimation in the record that the jury was actuated by any bias or prejudice in awarding this sum, or that the instructions given were not in keeping with the evidence adduced." (Nelson v. Johnson, 41 Idaho 703, 243 P. 649.)

"The amount of damages awarded by the jury to the plaintiff was not so large or so disproportionate as to be palpably the result of prejudice and passion. . . .Courts have repeatedly refrained from attempting to establish any precise rule for the measurement of damages in actions of personal injuries, but, rather from necessity, leave the measurement to the sound sense and fair judgment of the jury." (Morgan v. Southern Pacific Co., 95 Cal. 501, 30 P. 601; Aldrich v. Palmer, 24 Cal. 513; Darling v. Pacific Elec. Ry. Co., 197 Cal. 702, 242 P. 703.)

MCNAUGHTON, Commissioner. Varian, Brinck, CC., Wm. E. Lee, C. J., Givens, Taylor and T. Bailey Lee, JJ., concurring.

OPINION

MCNAUGHTON, Commissioner.--

This is an action for damages. In their first cause of action plaintiffs sue to recover $ 5,250 for hospital bill and personal injury to Lucy Mintun, and in their second cause of action claim $ 157.69 for damages to their automobile. It is alleged that on November 30, 1922, the plaintiff, J. Elmer Mintun, was driving on the highway in a southerly direction near the village of Hanson; that he was driving with due care on the right-hand side of the center of the road, i. e., to the west of the center line; that the defendant at the same time and place was driving his automobile northerly at an improper speed and without proper guidance, and that by reason of such negligence on the part of defendant, the defendant's automobile struck the automobile of plaintiff causing said injury and damage. The answer denies the allegations of negligence and improper driving on defendant's part, and denies the allegations of damage. The verdict of the jury was for plaintiff and the damages assessed were $ 1,117.31 on the first cause of action, and $ 82.69 on the second cause of action. Judgment on the verdict was entered for the sum of these awards.

The case is here on appeal upon two assignments of error: (1) That the evidence is insufficient to support the verdict and judgment in that the oral testimony of the witnesses upon which the verdict is based is contrary to undisputed physical facts; (2) that the amount of damages is excessive and not supported by evidence.

It is testified by Mr. Mintun, in which he is corroborated by his wife and son, twelve years of age, that from an elevation in the road he observed defendant's approaching car at a distance of about three-eighths of a mile; that the approaching car "zigzagged" from one side of the road to the other; that it was running at a high rate of speed, and that he, Mintun, drove to the extreme westerly edge of the pavement, or hard surface part of the road, and stopped with his two left wheels over near the west edge of the pavement; that the approaching car swerved against his car; that the front wheel of defendant's car hit the front wheel of plaintiff's car and drove the forepart of the car back under the engine; that after the impact the front wheel of plaintiff's car remained about at the point of collision, but the back was thrown toward the ditch; that the left front wheel of defendant's car was demolished and that defendant's car passed and went into the ditch back of plaintiff's car. He testified that Mrs. Mintun was thrown forward and her left forearm broke through the windshield injuring her wrist.

Mr Moorman, corroborated by his wife, testified that he observed plaintiff's car approaching from the...